HomeMy WebLinkAbout5.899 Original Contract
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COMMON INTEREST AGREEMENT
This Agreement is made by and between the City of Port Angeles ("City"), a
Washington municipal corporation, and Nippon Paper Industries USA, Co. Ltd. ("Nippon"), a
Washington corporation, who are collectively referred to as the "Parties," and individually as a
"Party. "
RECIT ALS
1. Contamination in Port Angeles Harbor. The Washington Department of
Ecology ("Ecology") has begun to investigate suspected contamination in Port Angeles Harbor.
As this investigation continues, the City and Nippon anticipate that Ecology or other regulatory
entities may take legal or regulatory action to require them to participate in or contribute to the
costs associated with investigating and remediating such contamination ("Contamination in Port
Angeles Harbor.")
2. Common Interest. 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 joint-
defense privilege in conducting a joint defense against any and all claims that may be asserted
against them with regard to Contamination in Port Angeles Harbor. 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 Contamination in Port
Angeles Harbor. Common Interest Materials also includes strategy and tactics discussed or
exchanged during communications and/or conferences among the Parties.
3. No Disclosure. But for their mutual and common interests in defending against
the claims that may be asserted against them with regard to Contamination in Port Angeles
Harbor, 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.
4. Maintenance of Applicable Privileges. 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,Jhe 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. Exchange of Common Interest Materials. 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 Privileges 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 may be asserted against them with regard to Contamination
in Port Angeles Harbor, they do not intend to waive any applicable privileges and they intend to
preserve to the maximum extent permitted by applicable law the attorney-client privilege,
protection under the attorney work-product doctrine, the joint-defense privilege and all other
privileges and protections that they may have.
7. Confidentiality. Except as may be required by statute or by court order or
permitted by agreement of all Parties that have not withdrawn under Paragraph 11 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 further their defense ofthe claims that may be
asserted against them with regard to Contamination in Port Angeles Harbor 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 notify all other Parties, and that Party, with the
cooperation ofthe 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 ten days from the date of the notice, unless a court order prohibits 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 in defense of any claims that may be asserted against that Party with
regard to Contamination in Port Angeles Harbor (including any appeals taken from any orders,
decisions, or judgments involving such claims) non-privileged facts, documents, and theories
that are learned or derived 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. 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.
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8. Additional Parties. By unanimous consent, the Parties may agree to allow other
persons who share their common interest in defending any claims that may be asserted against
them with regard to Contamination in Port Angeles Harbor, 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. Separate and Independent 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 defense of any claims that may be asserted against them with regard to
Contamination in Port Angeles Harbor 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. Withdrawal. 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 Common 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. Equitable 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
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 Contamination in Port Angeles
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Harbor. 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 Controlling. 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 ofthe 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 Expression. This Agreement is the final and complete
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 ofthe State
of Washington. If it becomes necessary to interpret any of the Agreement's terms, it is the intent
ofthe 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 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.
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23. Effective Date. This Agreement incorporates the prior intent and practice of
the Parties and is effective as of ..LiJ '12-, vro8
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
By: :Il:;ti:;/!l~ .d
Its: City Manager
NIPPON PAPER INDUSTRIES USA CO., LTD.
By:
Its:
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WHEREAS, the City of Port Angeles "City a Washington municipal corporation, and Nippon
Paper Industries USA, Co. Ltd. "Nippon a Washington corporation having previously entered
into a Common Interest Agreement "Agreement effective July 22, 2008 regarding suspected
contamination in Port Angeles Harbor, and:
WHEREAS, Section 8 Additional Parties of the Agreement provides that City and Nippon
"may agree to allow other persons who share their common interest in defending any claims that
may be asserted against them with regard to contamination in Port Angeles Harbor, and who agree
to be bound by the terms" of the Agreement, to join the Agreement, and:
WHEREAS, the Port of Port Angeles "Port"), a municipal corporation and special purpose
district of the State of Washington and Georgia Pacific LLC "G -P a Delaware corporation
which does business in the State of Washington, wish to join the Agreement, and:
WHEREAS, both Port and G -P satisfy the criteria specified in Section 8 of the Agreement and
agree to be bound by its terms and:
WHEREAS, City and Nippon agree that both Port and G -P should be allowed to join the
Agreement;
NOW, THEREFORE, in consideration of the mutual benefits derived from allowing Port and G -P
to join the Agreement, and in consideration of the mutual promises and agreements outlined in
the Agreement, it is agreed by City and Nippon that Port and G -P are hereby allowed to join the
Agreement, the effective date of which remains July 22, 2008. All other terms and conditions of
the Agreement shall remain in full force and effect.
CITY OF PORT ANGELES
By: 7 11.1"4---'...) .1 1.
ADDENDUM TO COMMON INTEREST AGREEMENT
Kent 1Vejs, -ty Manager Date/
By:
NIPPON PAPER INDUSTRIES USA CO., LTD.
Teruo Tamaki, President Date
Aar,/ 30 zaiv
5,`6 619
PORT OF PORT ANGELES:
The Port of Port Angeles agrees to be bound by the terms of the Common Interest
Agreement, as referred to in the preceding Addendum.
By:
Jeffery
GEORGIA PACIFIC LLC:
Georgia Pacific LLC agrees to be bound by the terms of the Common Interest
Agreement, as referred to in the preceding Addendum.
By:
xecutive Director
Steven J. Thiele
STOEL RIVES, LLP
Attorneys for Georgia Pacific LLC
4- 30- 12,
Date
Date
S
PORT OF PORT ANGELES:
The Port of Port Angeles agrees to be bound by the terms of the Common Interest
Agreement, as referred to in the preceding Addendum.
By:
Jeffery K. Robb, its Executive Director Date
GEORGIA PACIFIC LLC:
Georgia Pacific LLC agrees to be bound by the terms of the Common Interest
Agreement, as referred to in the preceding Addendum.
By: 3 4. d 30,2_
Steven J. Thiele Date
STOEL RIVES, LLP
Attorneys for Georgia Pacific LLC
ADDENDUM 7 O COMMON INTEREST AGREEMENT
WHEREAS, the City of Port Angeles "City a Washington municipal corporation, and Nippon
Paper Industries USA, Co. Ltd. "Nippon a Washington corporation having previously entered
into a Common Interest Agreement "Agreement effective July 22, 2008 regarding suspected
contamination in Port Angeles Harbor. and:
WHEREAS, Section 8 Additional Parties of the Agreement provides that City and Nippon
"may agree to allow other persons who share their common interest in defending any claims that
may be asserted against them with regard to contamination in Port Angeles Harbor, and who agree
to be bound by the terms" of the Agreement, to join the Agreement, and:
WHEREAS. the Port of Port Angeles "Port a municipal corporation and special purpose
district of the State of Washington and Georgia Pacific LLC "G -P a: Delaware corporation
which does business in the State of Washington, wish to join the Agreement, and:
WHEREAS, both Port and G -P satisfy the criteria specified in Section 8 of the Agreement and
agree to be bound by its terms and:
WHEREAS, City and Nippon agree that both Port and G -P should be allowed to join the
Agreement;
NOW, TI IEREFORE. in consideration of the mutual benefits derived from allowing Port and G -P
to join the Agreement, and in consideration of the mutual promises and agreements outlined in
the Agreement, it is agreed by City and Nippon that Port and G -P are hereby allowed to join the
Agreement. the effective date of which remains July 22, 2008. All other terms and conditions of
the Agreement shall remain in full force and effect,
CITY OF PORT ANGELES
By:
Kent ive}'s, Manager
NIPPON PAPER INDUSTRIES USA CO., LTD.
By: 77 4‘14
Date
r1)/ 3 0 of 2--
1 G y 7 z U l 2
3 ruo =a -i, President Date
t�� sFti hi v� Sc4 �wTA.
Jeanie DeFrang
From: William Bloor
Sent: Wednesday, May 09, 2012 1.13 PM
To: Jeanie DeFrang
Cc: William Bloor
Subject: FW: Attached Image
Attachments: 1552_0001. pdf
From: Grant, Harry Edward fmailto:harant.fi Riddellwilliams.coml
Sent: Wednesday, May 09, 2012 11:50 AM
To: sithieleestoel.com; wioviceeizolaw.com; dhneuoert(aolattirwin.com; William Bloor; Rodney Brown
Subject: FW: Attached Image
NPIUSA signature page.
HEG
HARRY EDWARD GRANT I RIDDELL WILLIAMS P.S.
1001 FOURTH AVENUE, SUITE 45001 SEATTLE, WA 98154 -1192
206.389 1574 I FAX 206.389.1708 I HGRANT( RIDDELLWILLIAMS.COM
CONFIDENTIALITY AND CIRCULAR 230 NOTICE: This communication is intended for the sole use of the individual
and entity to whom it is addressed, and may contain information that is privileged, confidential and exempt from disclosure
under applicable law You are hereby notified that any dissemination, distribution or duplication of this communication by
someone other than the intended addressee or its designated agent is strictly prohibited. As required by the Internal
Revenue Service, anything contained in this communication pertaining to any U S. federal tax matter is not to be used for
the purpose of avoiding federal tax penalties under the Internal Revenue Code or for promoting, marketing or
recommending to any third party the tax implications of any partnership or other entity, investment plan or arrangement
discussed in this communication If you have received this communication in error, please notify this firm immediately by
collect call (206)- 624 -3600, or by reply to this communication
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RIDDELL "\VILLIAMS P.S.
RE(cE~VlED
JUL 3 1 Z008
1001 FOURTH AVENUE, SUITE 4500 I SEATTLE, WASHINGTON 98154-1192
206.624.3600 TELEPHONE I 206.389.1708 FACSIMILE
WWW RIDDELLWILLlAMS COM
PORT ANGELES LEGAl DEPARTMENT
DARLA K HOLTERMAN
206 389 1545
DHOL TERMAN@RIDDELLWILLlAMS COM
July 30, 2008
VIA U.S. MAIL
Mr Bill Bloor
City Attorney
City of Port Angeles
321 E Fifth St
PO Box 1150
Port Angeles WA 98362-0217
Re: Common Interest Agreement
Dear Mr. Bloor:
Harry Grant asked me to send the enclose original, fully executed Common Interest
Agreement for your records.
Please contact Mr. Grant with any questions.
Very truly yours,
RIDDELL WILLIAMS p S
J)AA- t ~
Daria K. Holterman
Enclosure
OUf File 1668277
4846-5850-086601
073008/1220/16682 00077
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l~ORTAN~ELBS
W AS H.( N G T ON; U.S.A.
Legal Department
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June 6,2008
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"Harry E Grant, Jr, Esq "
Riddell Williams, PS
1001 4th A ~e, Ste 4'500 . '
Seattle, yv A 98154-1 065
Re: ,Common Interest Agreement,,- City of Port Angelesailcl Nipp~nP~perIndustries'
. DearMr Grant:
EnClosed please find two origimils o{the "Common Interest Agreement" signed by Mark E:
Madsen, Port Angeles City Manager, on .June 5, 2008.. It is my understanding that this
agreement meets with your approval arid you will obtain signature by Nippon.' .
We ask that one fully executed original bereturnedto the City for its records.
If you have any questions or comments, please feel free to contact.me.
, . ,- . - '/-' ''-', - ". -
. Very truly' yours,
. ....it'. ',' ./,,~./ :. .., '--
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'Q" '.
. J.. "./: _ ,. . -.. .~
:_. .,., .. ... _" .,~__ ... ....o_-'_~..___..__....__._ -__". "'--r--'
. William E. -- loor' . .
City Attorney
wbloor(a),citvofpa. us
. .
-- --. - -............,... - -~- - - --- - - - -
. .
Enclosure
cc: Tanya'Baniett, Cascadia~a~
WEB:dl .
.' ' G:ILEGALILETfERS.2008\Grant.Nipppn Agmt.060508.wpd
. Phone: 360-417-4530/ Fax: 360-417-4529
. . .
Website: www.cityofpa.us IEmai/: Cl.ttorney@C!tyofpa.us
:i?1 E8StFifth Street - P.O. Box 1150/ Port Angeles, WA 98362-0217