HomeMy WebLinkAboutSanta Clara Valley HCP/NCCP 2013 AgreementAGREEMENT REGARDING CONFIDENTIAL COMMUNICATIONS
AND JOINT DEFENSE PRIVILEGE RELATED TO
THE SANTA CLARA VALLEY HCP/NCCP
This Agreement Regarding Confidential Communications and Joint Defense Privilege
( "Agreement ") is between the City of San Jose, a municipal corporation ( "San Jose "), the County
of Santa Clara, a political subdivision of the State of California ( "County "), the Santa Clara
Valley Water District, a public entity ( "Water District "), the Santa Clara Valley Transportation
Authority, a public entity ( "VTA "), the City of Morgan Hill, a municipal corporation ( "Morgan
Hill "), the City of Gilroy, a municipal corporation ( "Gilroy "), and the Santa Clara Valley Open
Space Authority ( "OSA "), and relates to the preparation of a Habitat Conservation Plan ( "HCP ")
pursuant to the Federal Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq., and a Natural
Community Conservation Plan ( "NCCP ") pursuant to the Natural Community Conservation
Planning Act, California Fish and Game Code § 2800 et seq., and the California Endangered
Species Act of 1984, as amended, California Fish and Game Code § 2050 et seq. (referred to as
the "Santa Clara Valley HCP/NCCP" or "HCP/NCCP "). San Jose, the County, the Water
District, VTA, Morgan Hill and Gilroy are collectively referred to as the "Local Partners" in this
Agreement. On April 26, 2013, the Local Partners executed a Joint Exercise of Powers
Agreement forming the Santa Clara Valley Habitat Agency, a joint powers agency ( "VHA "), as
the implementing entity for the HCP. The Local Partners, OSA, and VHA are collectively
referred to as the "Parties" in this Agreement.
RECITALS
A. In 2001, as a result of applications for Section 7 authorizations under the Federal
Endangered Species Act for public facilities projects undertaken by some of the Local Partners,
the U.S. Fish & Wildlife Service ( "USFWS ") required the County, San Jose, Water District and
VTA to sign commitment letters to join with other local agencies within Santa Clara County to
prepare a multi- species HCP/NCCP within six months of USFWS' issuance of biological
opinions for certain local agency projects.
B. The County, San Jose, Water District, and VTA signed the commitment letters
requested by USFWS and have been working together since approximately June 2002 to
formulate a joint plan for preparing the HCP/NCCP and related documents. To formalize this
collaborative relationship, the County, San Jose, Water District, and VTA entered into a
Memorandum of Understanding (`Plan Preparation MOU ") related to preparation of the
HCP/NCCP effective June 25, 2004.
C. In 2005, the County, San Jose, Water District and VTA entered into MOUs with
Gilroy and Morgan Hill whereby Gilroy and Morgan Hill became parties to the Plan Preparation
MOU.
D. All of the Local Partners are signatories to a Planning Agreement with the California
Department of Fish and Wildlife ( "CDFW ") and USFWS regarding preparation of the
HCP/NCCP and related documents.
E. The HCP/NCCP process includes the preparation and approval of several legal
documents, including but not limited to the following:
o the HCP/NCCP;
o ajoint Environmental Impact Report/Environmental Impact Statement
( EIR/EIS ") prepared pursuant to the California Environmental Quality Act
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( "CEQA" ), California Public Resources Code § 21000 et seq., and the National
Environmental Policy Act ( "NEPA "), 42 U.S.C. § 4321 et seq.;
o an application for State and Federal permits for the incidental take of endangered
species;
o an Implementing Agreement between the Local Partners and any other public
agencies receiving endangered species incidental take permits and CDFW and
USFWS;
o a Joint Exercise of Powers Agreement between the County and the Cities of San
Jose, Gilroy and Morgan Hill creating the VHA for purposes of implementing the
HCP/NCCP;
o a Memorandum of Understanding between the Parties; and
o various local implementation documents or policies, including local
implementation ordinances whereby private development projects are made
subject to the HCP/NCCP.
F. Habitat Conservation Plans, Implementing Agreements, and related documents such
as EIR/EISs are frequently the subject of litigation by Third Parties.
G. While each Party is represented by its own counsel in the HCP/NCCP process, the
collaborative nature of the process and the need for legal documents that are jointly prepared,
negotiated and submitted to CDFW and USFWS necessitated that the Parties' attorneys engage
in confidential communications with each other and their clients. The Local Partners also
collectively selected Resources Law Group to serve as outside counsel to provide certain highly -
specialized legal services related to the HCP/NCCP and related documents.
H. While not a direct permittee, the OSA is expected to play a critical role in
HCP/NCCP implementation, including potential contributions of land to the Habitat Plan
Reserve System and /or potentially undertake management and monitoring, and/or provide other
services related to implementation of the Habitat Plan. Because of this, OSA and its counsel
have participated in confidential discussions with the Local Partners regarding the HCP/NCCP,
the EIR/EIS, and other actions related to adoption of the HCP/NCCP and issuance of the related
permits. The Parties have also entered into the Santa Clara Valley Habitat Plan Memorandum of
Understanding ( "Implementation MOU ") to address various implementation issues.
I. At various points throughout the HCP/NCCP development and public review process,
representatives of certain persons and entities have declared their intent to file lawsuits
challenging the HCP/NCCP, the EIR/EIS, or other actions related to adoption of the HCP/NCCP
and issuance of the related permits. These entities have included the Building Industry
Association and, most recently, YCS Investments, Inc. ( "YCS "). In fact, in September 2012
YCS requested that the Local Partners execute a tolling agreement to toll the statute of
limitations for filing lawsuits challenging the HCP/NCCP and EIR/EIS.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Mutuality of Interest /Confidentiality of Legal Communications. The Parties
acknowledge their mutuality of interest and need for joint cooperation in legal matters relating to
the HCP/NCCP, EIR/EIS, application for and issuance of permits, and any matters related
thereto. In furtherance of this common interest, the Parties agree that any communications
related to the HCP/NCCP between any of their officials or employees and counsel for any of the
Parties, or any outside counsel selected and retained by one or more of the Parties for legal
services related to the HCP/NCCP ( "Joint Outside Counsel "), whether oral or written
(collectively, "Legal Communications ") shall be kept confidential and protected from disclosure
to any Third Party by each and every applicable privilege, immunity, doctrine or exemption,
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including but not limited to the attorney- client privilege, attorney work product doctrine, joint
prosecution doctrine, joint defense doctrine, common interest doctrine, and California Evidence
Code sections 912(d) and 952. The assertion of said privilege shall be required only where
permitted by State and local law.
2. Applicability. The Parties intend for this Agreement to apply to all Legal
Communications whenever made, including those that occurred prior to the execution of this
Agreement, and shall continue in effect notwithstanding any conclusion or resolution of the
HCP/NCCP process or related litigation with respect to any or all of the Parties.
3. Waiver of Privileges/Demand for Disclosure. The Parties agree that they will not
voluntarily disclose Legal Communications to any Third Party without a written waiver of the
privileges by all of the Parties. If Legal Communications are requested by a Third Party
pursuant to the Public Records Act, Freedom of Information Act, a subpoena, discovery request,
or other request, then the Party receiving the request shall assert all applicable privileges against
disclosure and shall also notify the other Parties in a timely fashion so that they may also assert
privileges against disclosure.
4. Withdrawal. Should any Party withdraw from, be expelled from, or otherwise
terminate its participation in the HCP/NCCP process, such withdrawal, expulsion or termination
shall not impair the privileges that protect any Legal Communications that have been shared
prior to such action. Any Party who withdraws from the HCP/NCCP process shall promptly
return all privileged materials that the Party has received.
5. No Attorney - Client Relationship /Conflicts Created. The Parties agree that there is no
attorney- client relationship between each of their agencies and any other Party's attorney, and
that they are represented only by their attorney and any Joint Outside Counsel in this matter.
While each Party's attorney has a duty to maintain the confidentiality of the Legal
Communications, each attorney will be acting only as the attorney for their respective client and
will owe a duty of loyalty only to their own client. Neither this Agreement nor any conduct
contemplated by this Agreement is intended to create an attomey- client relationship. Each Party
agrees that counsel for any other Party will not be disqualified from continuing to represent its
client. Each Party further agrees that withdrawal of any Party from the HCP/NCCP process will
not disqualify any Joint Outside Counsel from continuing to represent the remaining Parties in
the HCP/NCCP process. Each Party, after being informed by its attorneys of the general nature
of the conflicts that might arise, concludes that the risk of any potential conflict of interest is
outweighed by the benefits and economies of cooperating and sharing information as part of the
collaborative HCP/NCCP process, and knowingly and intelligently waives any conflict of
interest that may arise on account of this Agreement.
6. Injunctive Relief. The Parties agree that any violation of this Agreement by any party
will irreparably harm the other parties and that no adequate remedy at law exists for such a
violation; therefore, any party shall be entitled to injunctive relief and specific performance of
this Agreement.
7. Miscellaneous Provisions.
a. This Agreement and any disputes related hereto shall be governed by California law
b. The Parties intend for the terms of this Agreement to also apply to the VHA, once
established. If any additional Parties or other local public entities officially join the HCP/NCCP
process, the parties will promptly undertake to secure the written consent of each such entity to
be bound by this Agreement.
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c. This Agreement may be executed in counterparts, which together will constitute one
and the same Agreement.
d. The signatories to this Agreement represent that they are fully authorized to execute
the Agreement on behalf of their respective public entities.
e. For purposes of this Agreement, "Third Party" means any person or entity other than
the Parties and the Parties' attorneys, officials, and employees with whom communications
regarding the subject matter of this Agreement fall within the scope of the attorney - client
privilege (see, e.g., Upjohn Co. v. US. (1981) 449 U.S. 383).
f Pursuant to Section 12 of the Implementation MOU, the VHA is obligated to
indemnify, defend and hold harmless all of the Local Partners and OSA from any claims or
liability arising from the Habitat Plan, the EIR/EIS, the Permits, the Implementing Agreement,
the Agency Agreement or the Implementation MOU. Please refer to Section 12 of the
Implementation MOU for more information about the VHA's indemnification responsibilities.
IN WITNESS WHEREOF, the Parties duly authorize and execute this Agreement:
CITY OF SAN JOSE:
Dated:
C
Print Name and Title
COUNTY OF SANTA CLARA:
Dated:
C
Print Name and Title
SANTA CLARA VALLEY WATER DISTRICT:
Dated:
Print Name and Title
SANTA CLARA VALLEY TRANSPORTATION AUTHORITY:
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Dated:
:
Print Name and Title
CITY OF MORGAN HILL:
Dated:
Print Name and Title
CITY OF GILROY:
Dated: 3
By:
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Print Name and Title
SANTA CLARA VALLEY OPEN SPACE AUTHORITY:
Dated:
:
Print Name and Title
SANTA CLARA VALLEY HABITAT AGENCY:
Dated:
in
Print Name and Title
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