HomeMy WebLinkAboutAGMT - Test-Claimant Permittees (MOU) MEMORANDUM OF UNDERSTANDING
BY AND BETWEEN TEST-CLAIMANT PERMITTEES
REGARDING SHARING OF COSTS FOR COMMON
TASKS ASSOCIATED WITH THE PROSECUTION/DEFENSE
OF UNFUNDED STATE MANDATES CLAIM
This Memorandum of Understanding ("MOU" or "Agreement") is being entered into by
and between the following local government agencies located in Orange County, California:
COUNTY OF ORANGE, ORANGE COUNTY FLOOD CONTROL DISTRICT, AND THE
CITIES OF ANAHEIM, BREA, BUENA PARK, COSTA MESA, CYPRESS, DANA POINT,
FOUNTAIN VALLEY, FULLERTON, HUNTINGTON BEACH, IRVINE, LAGUNA HILLS,
LAGUNA NIGUEL, LAKE FOREST, MISSION VIEJO, NEWPORT BEACH, PLACENTIA,
SAN JUAN CAPISTRANO, SEAL BEACH AND VILLA PARK (collectively, "Test-Claimant
Permittees"), effective as of March 24, 2010 ("Effective Date"), with regard to the following:
RECITALS
A. Test-Claimant Permittees are subject to Order No. R8-2009-0030/NPDES Permit
No. CAS618030 ("Santa Ana Permit") adopted by the California Regional Water Quality
Control Board, Santa Ana Region ("Santa Ana Regional Board") on May 22, 2009 and to Order
No. R9-2009-0002/NPDES Permit No. CAS0108740 ("San Diego Permit") adopted by the
California Regional Water Quality Control Board, San Diego Region ("San Diego Regional
Board") on December 16, 2009. The Santa Ana Permit and the San Diego Permit are hereafter
collectively referred to as "Stonnwater Permits." The Santa Ana Regional Board and the San
Diego Regional Board are hereafter collectively referred to as "Regional Boards". The Test-
Claimant Permittees, along with the other named permittees in the Stormwater Permits, are
hereafter collectively referred to as the"Co-Pennittees."
B. The Regional Boards have denied that any portion of the Stormwater Permits
constitute an unfunded state mandate that exceeds the scope of the Federal Clean Water Act and
its implementing regulations. Test-Claimant Permittees believe that portions of the Stormwater
Permits in fact constitute unfunded state mandates, which therefore, pursuant to Article XIII B §
6 of the California Constitution, require a State subvention of funds for the Co-Pennittees to
implement such Permit terms.
C. Test-Claimant Pennittees desire to pursue the recovery of funds from the State in
implementing unfunded State mandates, and believe that it is in their collective interest that the
necessary administrative, legal and procedural actions associated with the same be jointly
undertaken to present unified and coordinated positions and to achieve cost savings through
economies of scale and the sharing of legal resources. The Test-Claimant Permittees collective
actions may include, but are not be limited to, the following: the preparation and prosecution of
Test Claims before the State Mandates Commission; the prosecution of a petition for Writ of
Mandate in Superior Court and related appeals and re-hearings; the defense of a Petition for Writ
of Mandate and related appeals and re-hearings; settlement negotiations with the State Mandates
Commission and/or the Regional Boards and State Water Resources Control Board; and
intervention and/or amicus submissions into related lawsuits involving similar unfunded State
Mandates (collectively, "Mandates Claim").
D. The Test-Claimant Pennittees have concluded that: (a) there are common
questions of law and fact that affect the ability of the Test-Claimant Permittees to prosecute
and/or defend the Mandates Claim; (b) the Test-Claimant Permittees share a mutuality of interest
in a common and joint prosecution/defense of the Mandates Claim; (c) the Test-Claimant
Permittees desire to share and exchange confidential, privileged information without waiving or
otherwise diminishing any attorney-client privilege, attorney work product protection or any
other protections that may apply, inasmuch as the Test-Claimant Permittees believe such
cooperation is reasonably necessary to permit the best representation for each Test-Claimant
Pennittee; and (d) the Test-Claimant Pennittees agree to share in the payment of common fees
and costs incurred by individual Test-Claimant Pennittees for the collective benefit of the Co-
Pennittees in pursuing the Mandates Claim, including, but not limited to, attorney fees and costs
and related fees and expenses, as well as other common expenses incurred for the collective
benefit of the Co-Permittees prosecution/defense of the Mandates Claim ("Common Expenses").
E. On or about June 28, 2010 and on June 30, 2011 Test Claims for each Test-
Claimant Pennittee were submitted by the County of Orange ("County") to the State
Commission on Mandates on behalf of the Test Claimant Permittees, with the Test-Claimant
Pennittees and their legal counsel having worked cooperatively on the submission of such Test
Claims since approximately March 24, 2010, and with such collaborative effort having been
undertaken with the mutual understanding that the legal work product and communications
between Test-Claimant Pennittees was being performed pursuant to an agreement, to be
subsequently memorialized in writing, that the collective work product and all related
communications would be confidential and protected from disclosure under a joint
prosecution/defense agreement, and that the individual fees and expenses incurred or to be
incurred for the collective benefit of the Co-Pennittees, would be shared amongst all Co-
Pennittees pursuant to a funding agreement to be entered into in the future. This MOU shall
constitute the memorialization of the previously acknowledged joint prosecution/defense
agreement, and shall also constitute the funding agreement for the common expenses incurred
and to be incurred in the prosecution and defense of the Mandates Claim.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and of
the Recitals, it is mutually agreed by and between the parties as follows:
1. Joint Prosecution of Mandates Claim, Confidentiality and Privilege.
a. Test-Claimant Permittees agree that all communications between Test-
Claimant Permittees and their attorneys, representatives, consultants and/or experts, in
furtherance of the purpose of this MOU, are protected by the attorney-client privilege and the
attorney work-product doctrine to the fullest extent permitted by law. Each Test-Claimant
Permittee will take all reasonable steps necessary to protect such communications and
information from disclosure to third parties not subject to this MOU. If such information is
demanded by any person, each Test-Claimant Pennittee shall assert all relevant privileges and
defenses to disclosure.
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b. This MOU applies to all communications: (i) related to the prosecution
and/or defense of the Mandates Claim; (ii) that are protected by the attorney-client privilege, the
Work product doctrine and/or any other privileges, confidentialities and protections provided by
law; and (iii) that are shared or exchanged among the Test-Claimant Permittees or their
attorneys, representatives, consultants and/or experts ("Confidential Information"). Confidential
Information includes, but is not limited to, all verbal and written exchanges of information
among the Test-Claimant Pennittees and/or their attorneys, representatives, consultants and/or
experts, and all documents containing Confidential Information shared or exchanged among such
parties, including, without limitation, memoranda, correspondence, electronic mail, and all
summaries and compilations, data, mental impressions, strategies, legal theories, legal research,
work performed or prepared by consultants or experts at the direction of counsel for the Test-
Claimant Permittees, interviews with prospective witnesses and/or all other information and
analysis and the work product of any Test-Claimant Pennittee's attorney in any format.
c. The Test-Claimant Pennittees understand and agree that the sharing or
exchanging of Confidential Information between or among the Test-Claimant Permittees, and the
joint creation, development or solicitation of Confidential Information by two or more Test-
Claimant Permittees (or their employees or agents) in connection with the prosecution and/or
defense of the Mandates Claim, shall be accomplished pursuant to the attorney-client privilege,
the work product doctrine, the "common interest" doctrine, the "joint defense" doctrine and any
other applicable rights, privileges and doctrines, and that any and all such shared or exchanged
Confidential Information shall be and remain protected against disclosure to any third party to
the fullest extent allowed by law.
d. The Test-Claimant Permittees agree to take all measures reasonably
necessary to protect the confidentiality and privileged nature of the Confidential Information.
Unless otherwise required by law, none of the Confidential Information obtained by any Test-
Claimant Pennittee shall be disclosed to third parties without the written consent of all of the
Test-Claimant Permittees.
e. If any third party requests or demands any Confidential Information via a
subpoena, discovery request, Public Records Act request, or otherwise, the Test-Claimant
Pennittee receiving such request or demand shall immediately notify counsel for all other Test-
Claimant Pennittees. The Test-Claimant Pennittee receiving such request or demand shall assert
all applicable privileges, protections, exclusions and confidentiality rights, and shall appear in
any judicial proceeding relating to any such third party request or demand. Each Test-Claimant
Pennittee will take any and all steps as may be reasonably necessary to assert and preserve the
protections provided by this MOU or other applicable law, and shall fully cooperate with any
other Test-Claimant Pennittee seeking to enforce such protections in any judicial or other
proceeding relating to the disclosure of the Confidential Information. The Test-Claimant
Pennittee receiving the request also shall notify the other Test-Claimant Permittees in writing if
the receiving Test-Claimant Pennittee intends to release or disclose some or all of the
information that is being sought. If possible said notice shall be given at least ten (10) days prior
to the time that a response to the request is due. If any Test-Claimant Permittee objects to such
release or disclosure, and if such objection is received no later than two (2) days prior to the date
that a response is due, then the Test-Claimant Pennittee who received the disclosure request may
not release or disclose such information unless otherwise required to by applicable law or Court
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Order, or unless subsequently consented to by the other Test-Claimant Permittee. If the above
time limits conflict with the time within which response to discovery or information requests
must be made under applicable law, then the Test- Claimant Pennittees shall act in good faith to
provide the notification contemplated by this paragraph as soon as possible.
f. At the request and option of any Test-Claimant Permittee, privileged or
confidential documents generated by that Test-Claimant Permittee shall be returned to that Test-
Claimant Permittee or shall be destroyed by the receiving Test-Claimant Permittee, subject to
any applicable federal and state laws mandating recordkeeping.
2. Conflicts of Interest. Participation in the joint prosecution and defense of the
Mandates Claim, as contemplated by this MOU, shall not constitute representation by any
attorney for any individual Test-Claimant Permittee, of any other Test-Claimant Permittee, nor
shall such participation be grounds to disqualify any such attorney, consultants or experts from
representing any Test-Claimant Permittee, or any other party, in any other proceeding, including
from representing any party adverse to a Test-Claimant Permittee, in any unrelated matter.
Neither the execution of this MOU nor the sharing of information by the Test-Claimant
Permittees under this MOU shall provide the grounds for the disqualification of any attorney,
consultant, or any other representative of any Test-Claimant Permittee hereto, from the Mandates
Claim or any future litigation or proceedings arising out of the Mandates Claim. Neither this
MOU nor any actions taken under it shall constitute, or be deemed to create, a conflict of interest
should the interest of the Test-Claimant Permittees become adverse in connection with this
Mandates Claim or any future litigation or proceedings. For purposes of the prosecution and/or
defense of the Mandates Claim, each individual Test-Claimant Permittee acknowledges such
other representation or the possibility of such other representation, and waives any conflict of
interest that could allegedly be created as a result of the payment by or reimbursement to any
individual Test-Claimant Permittee of Common Expenses, including specifically, but not limited
to, legal fees and costs and related expenses.
3. Cost Sharing by Test-Claimant Permittees. Test-Claimant Pennittees agree that
the Common Expenses that have been incurred and that will be incurred are for the collective
benefit of the Test-Claimant Permittees and other Co-Pennittees, and as such are to be borne by
the Co-Pennittees on a pro rata basis according to their population and geographic arca, as set
forth in Agreement D02-048 attached as Exhibit A. Common Expenses shall include, but shall
not be limited to, legal fees and costs, and consultant and expert fees and costs. Test-Claimant
Permittees that have incurred Common Expenses shall submit invoices documenting their
Common Expenses to the County within thirty (30) days of the end of each calendar quarter,
except that Common Expenses incurred by a Co-Permittee prior to its execution date of this
Agreement shall be submitted within thirty(30) days of the end of the calendar quarter following
such execution date. All such Common Expenses shall be treated as a legal expense under
Agreement D02-048. The County, after verification and approval of an acceptable invoice, shall
then reimburse the individual Test-Claimant Permittees in accordance with the terms of
Agreement D02-048 who incurred Common Expenses. Invoices should be mailed to:
Jennifer Shook
OC Public Works/OC Watersheds
2301 N. Glassell Street
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Orange, CA 92865
Each invoice shall include a number and include the following information:
Invoice Amount
Description of services requesting reimbursement
Remittance information
Supporting documentation
4. Draft Budget. Test-Claimant Pennittees have prepared budgets that reflect costs
incurred to date and of anticipated costs and expenses associated with the proposed pursuit of the
Mandates Claim before the Commission on State Mandates that will be incurred through June
30, 2013, which budgets are attached hereto as Exhibit `B" and incorporated herein by this
reference ("Draft Budget"). Test-Claimants will prepare budgets for fiscal year 2013/2014 and
for future years until the Mandate Claim is finally decided by the Commission. The amount
necessary to cover these costs and expenses will be included in the budget prepared under
Agreement D02-048. Test-Claimant Pennittees acknowledge that the Draft Budget is based on
information presently known, and is only an estimate of the overall potential Common Expenses
expected to be incurred in the initial prosecution of the Test Claims before the Commission on
State Mandates, but does not include any other Common Expenses, and agree that they will share
all reasonable and properly incurred actual Common Expenses for the Mandates Claim, as
provided in this MOU.
5. Withdrawal from MOU. Any Test-Claimant Permittee may withdraw from
participation in this MOU upon thirty (30) days' prior written notice to the other Test-Claimant
Permittees. The withdrawing Test-Claimant Pennittee shall remain responsible for the payment
of its share of all Common Expenses incurred through the end of the calendar quarter in which it
gave notice of its termination. If a Test-Claimant Permittee withdraws from this MOU under this
paragraph, the withdrawing Test-Claimant Pennittee and the remaining Test-Claimant Pennittees
will remain obligated to preserve the confidentiality of all Confidential Information received
from or disclosed to the withdrawing Test-Claimant Pennittee. A withdrawing Test-Claimant
Permittee shall also remain obligated under this MOU not to assert participation in this MOU as
grounds for disqualification of any attorney, consultant, or expert of any Test-Claimant
Permittee, and to waive any conflict that may be created between Test-Claimant Pennittee and/or
their attorneys, consultants and experts as a result of the Mandates Claim. A withdrawing Test-
Claimant Permittee will have no other obligation under this MOU. Upon the withdrawal of any
Test-Claimant Pennittee, the remaining Test-Claimant Pennittees shall continue to pay Common
Expenses in accordance with the terms of this MOU based on a recalculated pro rata share,
consistent with Exhibit "A" hereto, with the Common Expenses previously allocated to the
withdrawing Test-Claimant Pennittee being allocated to the remaining Test-Claimant Permittees.
Notwithstanding the above, Test Claimant Pennittees understand that before a petition for Writ
of Mandate in Superior Court may be initiated further authorization will be needed by the City
Councils and Board of Supervisors of the respective Test Claimant Pennittees. No Test
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Claimant Pennittee will be responsible for any costs related to the prosecution of such a petition
for Writ of Mandate until and if their City Council or Board of Supervisors authorizes such
litigation.
6. Notices. Unless otherwise specifically permitted by this MOU, all notices or
other communications required or permitted under this MOU shall be in writing, and shall be
personally delivered or sent by registered or certified mail, postage prepaid, return receipt
requested, sent by telecopy, provided that the telecopy cover sheet contains a notation of the date
and time of transmission, or sent via electronic mail, provided that the sent electronic mail
contains the date and time of its transmission, and shall be deemed received: (i) if personally
delivered, upon the date of delivery to the address of the person to receive such notice, (ii) if
mailed in accordance with the provisions of this paragraph, two (2) business days after the date
placed in the United States mail, (iii) if mailed other than in accordance with the provisions of
this paragraph or mailed from outside the United States, upon the date of delivery to the address
of the person to receive such notice, (iv) if given by telecopier during business hours when
delivery can be confirmed, when delivered or (v) if given by electronic mail, the business day
received where receipt is during business hours. Notices shall be given at the following
addresses:
To: County of Orange/Orange County Flood Attn: Ignacio G. Ochoa, Interim Director of
Control District Public Works
300 N. Flower Street (714) 667-8800
Santa Ana, CA 92703 Ign acio.Ochoa aP,ocpw.ocgov.com
To: City of Anaheim Attn: Michael R.W. Houston, Interim City
200 S. Anaheim Blvd. #356 Attorney
Anaheim, CA 92805 (714) 765-5169
MHouston( aanaheim.net
To: City of Brea Attn: Charlie View, Director of Public Works
I Civic Center Circle (714) 990-7698
Brea, CA 92821 charliev(cD,ci.brea.ca.us
To: City of Buena Park Attn: James A. Biery, Director of Public Works
6650 Beach Blvd. (714) 562-3670
Buena Park, CA 90620 ibiery(a huenapark.com
To: City of Costa Mesa Attn: Ernesto Munoz, Director, Department of
77 Fair Drive Public Services
Costa Mesa, CA 92628 (714) 754-5343
emunozReostamesaca.Pov
To: City of Cypress Attn: Gonzalo Vazquez, Water Quality Manager
5275 Orange Avenue (714) 229-6752
Cypress, CA 90630 gvazquez @ci.cypress.ca.us
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To: City of Dana Point Attn: Brad Fowler, Director of Public Works and
33282 Golden Lantern Engineering Services
Dana Point, CA 92629 (949) 248-3554
bfowler n,danapoint.org
To: City of Fountain Valley Attn: Steven M. Hauerwaas
10200 Slater Avenue (714) 593-4441
Fountain Valley, CA 92708-4736 steve.hauerwaas @fountainvalley.org
To: City of Fullerton Attn: Trung Phan, Stonnwater/Wastewater
303 W. Commonwealth Ave Compliance Specialist
Fullerton, CA 92832 (714) 738-5333
trungp@cityoffullerton.com
To: City of Huntington Beach Attn: Travis K. Hopkins, Director of Public
2000 Main Street Works
Huntington Beach, CA 92648 (714) 536-5437
thopkins @surfcity-hb.org
To: City of Irvine Attn: Eric Tolles, Director of Community
P.O. Box 19575 Development
Irvine, CA 92623-9575 (949) 724-6453
etolles @ci.irvine.ca.us
To: City of Laguna Hills Attn: Bruce E. Charming, City Manager
24035 El Toro Road (949) 707-2600
Laguna Hills, CA 92653 bchanning @ci.laguna-hills.ca.us
To: City of Laguna Niguel Attn: Dave Rodgers, Director of Public
30111 Crown Valley Parkway Works/City Engineer
Laguna Niguel, CA 92677 (949) 362-4300
drogers i,cityoflagunaniguel.org
To: City of Lake Forest Attn: Thomas Wheeler, Director of Public
25550 Commercentre Drive, Suite 100 Works/City Engineer
Lake Forest, CA 92630 (949) 461-3480
twheeler @lakeforstca.gov
To: City of Mission Viejo Attn: Richard Schlesinger, City Engineer
200 Civic Center (949) 470-3079
Mission Viejo, CA 92691 rschlesinger a,cityofmissionviejo.org
To: City of Newport Beach Attn: Dave Kiff, City Manager
3300 Newport Blvd. (949) 644-3000
Newport Beach, CA 92663 dkiffPnewportbeachca.gov
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To: City of Placentia Attn: Antonia Castro-Graham, Management
401 E. Chapman Avenue Analyst
Placentia, CA 92870 (714) 993-8149
acgraham @placentia.org
To: City of San Juan Capistrano Attn: Keith Van Der Maaten, Utilities Director
32400 Paseo Adelanto (949) 443-6363
San Juan Capistrano, CA 92675 kvandennaatcn i,sanjuancapistrano.org
To: City of Seal Beach Attn: Michael Ho, City Engineer
211 Eighth Street (562) 431-2527, ext. 1322
Seal Beach, CA 90740 mho @ci.seal-beach.ca.us
To: City of Villa Park Attn: Jarad Hildenbrand, City Manager/City Clerk
17855 Santiago Blvd. (714) 998-1500
Villa Park, CA 92861 Thildenbrand@villapark.org
7. No Employment, Partnership. Nothing contained in this MOU shall be deemed or
construed to create an employment, partnership, joint venture or any other similar relationship
between the parties hereto or cause Test-Claimant Permittees to be responsible in any way for
the debts or obligations of other individual Test-Claimant Pernittees, any other Co-Pennittee, or
any other person.
8. Authority to Sign. Each Test-Claimant Permittee wan-ants and represents that the
persons executing this MOU on its behalf has full authority to do so and to bind such Test-
Claimant Permittee to perform pursuant to the terms and conditions of this MOU.
9. Counterparts. This MOU may be signed in multiple counterparts with the same
force and effect as if all original signatures appeared on one copy; and in the event this MOU is
signed in counterparts, each counterpart shall be deemed an original and all of the counterparts
shall be deemed to be one agreement.
10. Severability. If any portion of this MOU shall be held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions shall remain
enforceable to the fullest extent permitted by law if enforcement would not frustrate the overall
intent of the parties (as such intent is manifested by all provisions of the MOU, including such
invalid, void or otherwise unenforceable portion).
11. Applicable Law. This MOU shall be construed in accordance with, and governed
by, the laws of the State of California.
12. Headings. The headings in this MOU are inserted only as a matter of
convenience, and in no way define, limit, extend or interpret the scope of this MOU or of any
particular provision hereof.
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IN WITNESS WHEREOF, the parties have executed this MOU as of the dates set forth
below.
To be added—signature blocks for
Signatories, with attestation blocks and
Approved as to Form blocks
CITY OF SEAL BEACH
Dated: d'4- 13 By: at, ,_ y,
J . Ingram
City Manager
Atte t:
zritfr (e' tirU
rty Clerk
Approved as to Form:
Dated: Jive .2 V 2 0 / 722 �
Quinn M. Barrow
City Attorney
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EXHIBIT "A"
TEST-CLAIMANT PERMITTEE COMMON EXPENSES SHARE
227,048170-0936
1122670.02 a06'06,12 EXHIBIT "A"
Permittee Population * Area (sq. mi.) ** Weighted Average
•
Share of Expenses (%)
Aliso Viejo 48,320 6.92 1.174644039
Anaheim 341,034 49.88 8.359100787
Brea 40,065 11.98 1.38619447
Buena Park 80,868 10.55 1.897772669
Costa Mesa 110,146 15.83 2.681298318
Cypress 47,907 6.6 1.147377749
Dana Point 33,429 6.43 0.921121384
Fountain Valley 55,423 9.06 1.421461579
Fullerton 135,574 22.32 3.487549753
Garden Grove 171,327 17.92 3.727989919
Huntington Beach 190,377 26.94 4.606591748
Irvine 219,156 63.77 7.466222934
La Habra 60,432 7.37 1.384250953
La Palma 15,596 1.8 0.350503961
Laguna Beach 22,792 8.84 0.92229173
Laguna Hills 30,410 6.65 0.890811148
Laguna Niguel 63,228 14.79 1.915783801
Laguna Woods 16,224 3.31 0.459549363
Lake Forest 77,490 16.78 2.259022287
Los Alamitos 11,474 2.01 0.303151389
Mission Viejo 93,483 17.93 2.572497494
Newport Beach 85,376 24.74 2.901813539
Orange 136,995 25.78 3.737148136
Placentia 50,665 6.62 1.189660822
Rancho Santa Margarita 47,947 12.94 1.566656347
San Clemente 63,743 17.91 2.129473
San Juan Capistrano 34,734 13.49 1.406735754
Santa Ana 325,228 27.35 6.636498385
Seal Beach 24,215 4.02 0.625120486
Stanton 38,317 3.09 0.773150009
Tustin 75,781 10.98 1.850616232
Villa Park 5,823 2.08 0.223844441
Westminster 89,937 10.05 1.999447772
Yorba Linda 64,855 19.82 2.272122282
County of Orange 121,488 174.87 13.35252532
OCFCD 0 0 10
TOTALS 3,029,859 681.42 100
227/048170-0936
22670 02 a06roei12 EXHIBIT "A"
EXHIBIT "B"
BUDGET FOR PROSECUTION OF
MANDATES CLAIM BEFORE
COMMISSION ON STATE MANDATES ONLY
Fiscal Year Total Costs Notes
2010/2011 -2012/20l3 165,000 I
2013/2014-2014/2015 150,000 2
This represents actual costs of preparing Permittees' initial claim for the to San
Diego Permit and Santa Ana Permit and cost of preparing responses to comments from
Santa Ana Regional Water Quality Control Board's and State Water Resources Control
Board to Permittee
2, This represents an estimate of the costs that will be required to prepare responses
to comments from the San Diego Regional Water Quality Control Board. Costs will be
included in the line item for legal services in the budget prepared for Agreement D02-
048. Budget for future fiscal years will be prepared by the Permittees and this Exhibit
revised.
•
227/048170-0936
1122670.02 a06/06/12 -2-