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HomeMy WebLinkAbout5.1082 Original ContractThis update is made this 24 day of January 2011, by and between Nippon Paper Industries USA Co., Ltd. "NPIUSA and the City of Port Angeles in its administrative, not in its quasi judicial capacity "City The City and NPIUSA hereby recite and agree as follows: 1. Recitals. UPDATE TO JOINT DEFENSE AGREEMENT NPIUSA and the City executed a Joint Defense Agreement (Agreement) on October 28, 2010. The Agreement relates to the joint defense of the environmental review and development permits necessary to construct and operate a biomass cogeneration facility (the Project) at NPIUSA's existing paper mill on Ediz Hook. NPIUSA and the City successfully defended an appeal challenging the adequacy of the City's EIS and the shoreline development permit for the Project issued by the Planning Commission. The Port Angeles City Council issued its decision affirming the Planning Commission's decision on December 28, 2010. The City Council's decision was appealed to the Washington State Shorelines Hearings Board (SHB) on or around January 18, 2011. While some of the Appellants challenging the shoreline permit decision are the same as in the previous permit challenge, one appellant is new (Sierra Club, Washington State Chapter) and another has not continued its appeal (Center for Environmental Law and Policy). The City and NPIUSA wish to continue to work together to defend the permitting decisions made by the City. This includes defense of the appeal currently pending before the SHB and, if necessary, any judicial appeal of the SHB's decision that may be filed later. The City and NPIUSA agree that they continue to have common and mutual interests in these matters. 2. Agreement. The Agreement previously executed by the City and NPIUSA is hereby continued in its entirety and on the same terms. This update is executed by the City and NPIUSA, by and through their legal representative. CITY OF PORT ANGELES (CITY) NIPPON PAPER INDUSTRIES USA, CO., LTD. (NPIUSA) By B l 3�✓��`/' THOMAS ELI BACKER ATTORNEY -AT -LAW, PLLC 5,1x8. This Agreement is made this 28 day of October, 2010, by and between Nippon Paper Industries USA Co., Ltd. "NPIUSA and the City of Port Angeles in its administrative, not in its quasi-judicial capacity "City The City and NPIUSA hereby recite and agree as follows: 1. Recitals. JOINT DEFENSE AGREEMENT NPIUSA applied to the City for development permits necessary to construct and operate a biomass cogeneration facility at NPIUSA's existing paper mill on Ediz Hook. The City determined that an environmental impacts statement "EIS was required as part of the permitting process for the project. Environmental review for the project was begun in the spring of 2010, and a final EIS was issued by the City on September 3, 2010. On September 22, 2010, following review of NPIUSA's project permit application, the City Planning Commission approved a shoreline substantial development permit and a land use conditional use permit for over height structures. On October 6, 2010, the Planning Commission's decision on the shoreline permit was appealed to the Port Angeles City Council, along with a challenge to the adequacy of the City's final EIS (the "Appeal With regard to the appeal, the City must perform two distinct functions. First, the City Council, acting in its quasi-judicial role, must hear and decide the appeal in a fair, unbiased manner. Second, the City, in its administrative capacity, must defend the adequacy of the final EIS and the validity of the decisions of the Planning Commission. An outside, independent attorney will be retained to represent the City Council in its quasi-judicial function. The City Attorney will represent the City in its administrative capacity. The City and NPIUSA wish to work together to defend the permitting decisions made by the City to date and the adequacy of the EIS that supports those City decisions. The City and NPIUSA agree that they have common and mutual interests in these matters. This Agreement relates only to the role of the City in its administrative capacity with regard to the issues identified above. This Agreement does not affect or operate with regard to the City Council's quasi-judicial function. Additionally, the City and NPIUSA recognize that the City must maintain its independence and oversight authority over NPIUSA for future permits and approvals and other matters not addressed in the Appeal, and this Agreement shall not affect or relate to any such permits, approvals, or matters. By this Agreement, the City and NPIUSA state that in the pursuit of their common interest in defending this Appeal, they do not intend to waive any applicable privileges, nor does the City waive any of its land use, police, or other powers relating to NPIUSA. By this Agreement, the City and NPIUSA intend to preserve to the maximum extent the attorney- client privilege, the work product doctrine, confidentiality, and all other privileges or protections that they may have. Page 1 of 3 S, i ova, 2. Joint Defense Materials. The City and NPIUSA agree that it is in their mutual best interests to cooperate with each other and to share information, both orally, and in documents, in order to assert common and/or joint claims and defenses in the Appeal "Joint Defense Materials Joint Defense Materials shall include but not be limited to written communications, the disclosure of documents, factual and legal analyses and memoranda, interview reports and reports of experts, consultants or investigators, meetings in person, by telephone or forms of electronic communication, and records or reports of such communications. 3. Attorney Client Privilege Work Product. Some or all of the Joint Defense Materials may be privileged from disclosure to adverse or other parties as a result of the attorney client privilege, the work product doctrine, or other applicable privileges or protections. It is the desire, intention and mutual understanding of the City and NPIUSA that: (a) the sharing of Joint Defense Materials among one another is not intended to, and shall not, waive or diminish in any way their continued protection under the attorney client privilege and the work product doctrine, and (b) all Joint Defense Materials provided by the City or NPIUSA pursuant to this Agreement that are entitled to protection under the attorney client privilege, the work product doctrine, or other applicable privileges or protections, shall remain entitled to such protection under the joint defense doctrine, and may not be disclosed without mutual consent. The City and NPIUSA also intend and understand that any disclosure of Joint Defense Materials pursuant to this Agreement will not constitute a waiver of any other available privilege protection. 4. Confidentiality. The City and NPIUSA agree to maintain, to the extent allowed by applicable law, the confidentiality of all Joint Defense Materials. Except as required by applicable law or a Court order or unless there is mutual consent, neither party shall disclose Joint Defense Materials to any other person or entity. If any person makes a public records request, otherwise requests, or demands access to Joint Defense Materials by request, subpoena, or otherwise, counsel for the party receiving the request shall immediately notify counsel who supplied the Joint Defense Materials. Counsel who supplied the Joint Defense Materials may then take all necessary and appropriate steps to assert all applicable rights and privileges with regard to the Joint Defense Materials in the appropriate forums and in any proceeding relating to the disclosure sought. This Agreement shall not prohibit disclosure by either the City or NPIUSA of materials that either party alone has prepared or obtained, where such materials contain no privileged or protected information obtained directly or indirectly from the other party. Nor shall this Agreement prevent either party from using in the Appeal non privileged facts, documents, and theories that are learned or derived from Joint Defense Materials. Page 2 of 3 5. No Waiver; Separate and Independent Representation. Neither the City nor NPIUSA shall have the authority to waive any applicable privilege or doctrine on behalf of the other party. Nothing in this Agreement shall be construed to affect the separate and independent representation of the City and NPIUSA by their respective counsel. This Agreement is executed by the City and NPIUSA, by and through their legal representative. CITY OF PORT ANGELES (CITY) NIPPON PAPER INDUSTRIES USA, CO., LTD. (NPIUSA) By: Kent Myer ity Manager Page 3 of 3 By: k THOMAS ELI BACKER ATTORNEY -AT -LAW, PLLC