HomeMy WebLinkAbout21-12 Common Interest Joint Defense & Confidential Agmt NISP 01-13-2021RESOLUTION N0.21-12
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF
FIRESTONE, COLORADO, APPROVING THE COMMON INTEREST JOINT
DEFENSE AND CONFIDENTIALITY AGREEMENT BETWEEN THE TOWN
OF FIRESTONE, NORTHERN COLORADO WATER CONSERVANCY
DISTRICT (66NISP ENTERPRISE") ("NORTHERN WATER") AND THE
GOVERNMENTAL ENTITY PARTICIPANTS IN THE NORTHERN
INTEGRATED SUPPLY PROJECT
WHEREAS, Northern Water and the NISP Enterprise are developing and constructing and
will operate the Northern Integrated Supply Project ("Project") that will deliver water to the
Proj ect's Participants, all of which, including the Town of Firestone are municipal water providers
serving communities on the East Slope of the States and
WHEREAS, all the parties have engaged the services of attorneys, engineers, and
consultants, and seek that the work of all be conducted pursuant to a Common Interest, Joint
Defense and Confidentiality Agreement ("Agreement"); and
WHEREAS, the Agreement will allow the parties to make available to each other
privileged information and communications and permit the parties to pursue a joint defense for
any potential or actual litigation; and
WHEREAS, the Agreement will also facilitate common interest representation among the
parties while also acknowledging that at times, dependent upon the circumstances, certain
information may not be disclosed among the parties.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE
TOWN OF FIRESTONE, COLORADO:
The Common Interest Joint Defense and Confidentiality Agreement Between the Town
of Firestone, Northern Colorado Water Conservancy District ("NISP Enterprise") ("Northern
Water") and the Participants in the Northern Integrated Supply Project is approved in
substantially the same form as the copy attached hereto and made a part of this resolution and the
Mayor is authorized to execute the Agreement on behalf of the Town.
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INTRODUCED, READ AND ADOPTED this 0 day of 2021.
TOWN OF FIRESTONE, COLORADO
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COMMON INTEREST JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT
This Common Interest, Joint Defense, and Confidentiality Agreement ("Agreement") is
made and entered into onM_y and among the Northern Integrated Supply Project
Water Activity Enterprise, a government -owned business within the meaning of Article X,
§20(2)(d) of the Colorado Constitution, organized pursuant to C.R.S. § 37-42.5-101 et seq., and
owned by the Northern Colorado Water Conservancy District ("NISP Enterprise"), the Northern
Colorado Water Conservancy District ("Northern Water:), and the governmental entities listed
on attached Exhibit A, which Exhibit may be amended by Northern Water and the NISP
Enterprise from time to time to add entities that have a legal interest in NISP (sometimes referred
to collectively in this Agreement as the "Parties," or individually as a "Party"). The date of this
Agreement is N" 3K 2021
RECITALS
A. Northern Water and the Enterprise are in the process of developing and constructing, and
will in the future operate, the Northern Integrated Supply Project, which will include,
without limitation, new reservoirs, forebay reservoirs, pumping plants and pipelines (the
"Project"). The Project will deliver water from the Cache La Poudre and South Platte
Rivers to the Participants. The Participants are municipal water providers serving
communities on the East Slope of the state of Colorado. The Participants are: Central
Weld County Water District, Town of Dacono, Town of Eaton, Town of Erie, City of
Evans, Town of Firestone, Fort Collins -Loveland Water District, City of Fort Lupton,
City of Fort Morgan, Town of Frederick, City of Lafayette, Left Hand Water District,
Morgan County Quality Water District, Town of Severance, and the Town of Windsor.
The Participants will receive water through the Project.
B. All Parties are interested in and will be affected and/or benefited by the development,
construction and operation of the Project.
C. Since at least 2004, Northern Water has been developing and permitting the Project with
federal, state and local authorities, including inter alia, the U.S. Army Corps of
Engineers, Colorado Department of Public Health and Environment, Colorado
Department of Natural Resources and Larimer County.
D. The Parties anticipate that one or more persons or entities may bring legal challenges
relating to the development, construction or operation of the Project.
E. The parties understand and agree that the purpose of this Agreement is to confirm the
existence of a common interest among the Parties in the development, construction and
operation of the Project, which provides benefits to the Parties including, but not
necessarily limited to, the following:
i. Allowing and encouraging the free exchange of information by and between the
signatories to this Agreement regarding development, construction and operation of the
Project and prosecution or defense of legal actions challenging the Project; and
ii. Sharing of labor in connection with research, investigation, expert analysis and
opinions related to the Project; and
iii. Reduction in legal fees, engineering fees, and other costs related to the Project.
AGREEMENT
1. The Parties have engaged the services of various attorneys, law firms, engineers and
consultants with respect to the Project.
2. All work performed by, and all communications between, the Parties and their officers,
employees, attorneys, law firms, engineers, consultants and consulting firms with respect
to the development, analysis, and prosecution of the Project shall be conducted and
perceived pursuant to the joint defense doctrine recognized in such cases as Black v.
Southwestern Water Conservation District, 74 P.3d 462 (Colo. Ct. App. 2003), Gordon v.
Boyles, 9. P.3d 1106 (Colo. 2000), and Ritter v. Jones, 207 P.3d 954 (Colo. Ct. App.
2009), and subject to the privilege therein described ("Common Interest Privilege").
3. The Parties may make available to each other privileged information and
communications, both oral and written, including but not limited to, past and future,
notes, reports, documents, memoranda, research, discussions among the Parties or their
attorneys or consultants, at meetings, conferences or on telephones to investigate or to
pursue a joint defense to any potential litigation or to litigation that commences; written
or electronic communications between the Parties or their attorneys or consultants to
investigate or to pursue a joint defense to any potential litigation or to litigation that
commences; reports/analyses prepared by the Parties or their attorneys or consultants for
any potential litigation or for any litigation that commences; and written and oral
communications to or from the Parties and their attorneys or consultants, all in
connection with the Project relating to the respective representations of the Parties,
("Common Interest Information"). The Common Interest Information may reflect and
incorporate confidential communications made by the Parties to their attorneys and by
their attorneys to them, which are protected by the attorney/client privilege, work product
doctrine, or other applicable privilege from disclosure to others ("Primary Privilege"). It
is the intent of this Agreement to ensure that the exchange of Common Interest
Information among the Parties, shall not, in and of itself, result in any waiver or
termination of the Primary Privilege because of the Parties' common interest in, and joint
defense of, the Project and to preserve any privilege applicable to the Common Interest
Information while pursuing the Parties' common interest and to keep all Common Interest
Information confidential to the maximum extent allowed by law. Information obtained by
the Parties as a result of exchanging Common Interest Information is protected from
disclosure to any third party or non -client by the Parties' Primary Privilege in the same
manner as if the exchange of Common Interest Information had not taken place.
4. A Party's disclosure of Common Interest Information exchanged pursuant to this
Agreement shall not be deemed a waiver by the other Parties of their right to assert a
claim of the Common Interest Privilege and attorney/client or work -product privilege
with respect to any Common Interest Information.
5. Because of the privileged nature of the Common Interest Information, no Party shall
provide Common Interest Information to any non -Party or its representatives except as
required by law or with the consent of the Party who first disclosed the Common Interest
Information.
6. The Parties understand that the purpose of this Agreement is to facilitate common interest
representation by increasing the information flow between the Parties. The Parties
recognize, however, that under some circumstances, information known to one Party may
not be shared with the other Parties to the Agreement.
7. Nothing in this Agreement is intended as, shall constitute, or shall be interpreted,
construed or used as evidence of an admission by a Party of any wrongdoing, liability or
fault (including comparative or proportionate fault), a waiver of any privilege, claim,
right or defense, estoppel, or an admission as to any matter of law or fact, either as
between the Parties or with respect to any person or entity not a party to this Agreement
provided, however, that any Party shall be entitled to use this Agreement to enforce its
terms.
8. Disclosure of information obtained from another Party by one of the Party's attorneys to
his or her client is made pursuant to this Agreement and is not a waiver of the Primary
Privilege or the Common Interest Privilege.
9. If any person or entity not a Party to this Agreement requests or demands, by subpoena or
otherwise, any Common Interest Information from any Party or from any Party's agent,
officer, employee, consultant, or representative, such Party shall: (1) immediately notify
the other Parties, and (2) assert the Common Interest Privilege with respect to the
requested Common Interest Information. Each Party and each Party's respective attorney
shall take all steps necessary to assert all applicable rights and Primary Privilege with
respect to such Common Interest Information and shall cooperate fully with the other
Parties in any judicial proceedings related to the disclosure of the Common Interest
Information.
10. All previous privileged communications, and all Common Interest Information
previously exchanged, between the Parties and their respective attorneys, officers, agents,
employees, consultants, and representatives, are subject to this Agreement.
11. Neither the execution nor the performance of this Agreement shall result in the inability
of any party to this Agreement to use any data contributed by it to the effort, any raw data
generated under this Agreement, or any expert opinion which has been disclosed to other
parties in this or other litigation, in other ongoing or subsequent litigation.
12. Any Party may withdraw from this Agreement by giving written notice to every other
Party of its election to withdraw.
13. Any Party that withdraws from this Agreement, together with such Party's respective
attorneys and consultants, remains subject to all provisions herein as they pertain to
Common Interest Information theretofore received, but not as to subsequent information.
Any Party that withdraws from this Agreement shall promptly destroy or return to the
other Parties all Common Interest Information in its possession or in the possession of its
attorneys or consultants.
14. Each Party understands and acknowledges that it is represented only by its attorneys in
this matter, that while an attorney representing any other Party has a duty to preserve the
confidences disclosed to him or her pursuant to this Agreement, the attorneys
representing any other Party will be acting only as attorneys for that other Party and will
owe a duty of loyalty to their respective client only. Each Party will pay for the services
of its respective attorneys.
15. Each Party understands that the Parties may now or in the future have some adverse
interests and that the sharing of some confidences pursuant to this Agreement may lead to
potential conflicts of interest of the various attorneys in the future. The Parties do not
intend that the exchange of Common Interest Information will be a basis for the future
disqualification of their respective attorneys and consultants and agree that they will not
move for disqualification of attorneys or consultants in any matter solely on account of
the exchange of Common Interest Information pursuant to this Agreement and waive any
conflicts arising from the sharing of such confidences.
16. Colorado law shall control the interpretation and enforcement of this Agreement. This
Agreement may be enforced in the Weld County, Colorado, District Court by a
temporary restraining order and injunction in the event of a breach or anticipatory breach.
The Parties accept jurisdiction and venue in that court. Any modification to this
Agreement shall be in writing and signed by all Parties.
17. This Agreement shall be binding upon the Parties, their agents, consultants, and
respective attorneys, even after the Northern Integrated Supply Project has been
constructed and is operating. In addition, this Agreement shall be binding on the
successors and assigns of the Parties, their agents, consultants, and respective attorneys.
18. Although the Parties are engaged in a common enterprise as described in paragraph E
above, nothing in this Agreement shall be deemed to create a partnership, joint venture,
and/or principal and agent relationship between the Parties and/or their respective
attorneys or consultants.
19. If any provision of this Agreement is deemed invalid or unenforceable, the balance of the
Agreement shall remain in full force and effect.
20. The Parties acknowledge that this Agreement is the result of joint negotiations among the
Parties, and agree that this Agreement shall not be construed or interpreted against any
Party on the grounds of sole or primary authorship.
21. Each person signing this Agreement represents and warrants that he or she has been duly
authorized to execute this Agreement by the entity on whose behalf it is indicated that the
person is signing.
22. This Agreement may be executed in counterparts, each of which shall be deemed an
original.
IN WITNESS WHEREOF, the Parties have executed this Agreement in duplicate originals, as of
the date first above written.
Northern Integrated Supply Project Water Activity Enterprise
By: 112
Bradley D. W' , General Manager
Central Weld County Water District Water Activity Enterprise, organized pursuant to
C.R.S. § 37-45.1-101 et seq., and owned by Central Weld County Water District, a
Colorado special district and quasi -municipal corporation
By: CQAAt
Name: � r] 2.5 t/►� �CLj`, -
Title:)
The City of Dacono, a municipal corporation
IN
Nar
Title: "&C�(
The Town of Firestone, a municipal corporation, acting with and on behalf of the Firestone
Water Activity Enterprise, a government -owned business within the meaning of Article X,
§ 20(2)(d) of the Colorado Constitution, organized pursuant to C.R.S. § 37-45.1-101 et seq.,
and owned by the Town of Firestone
UIR
Name:
Title:
Town of Eaton, Colorado, Water Enterprise, a government -owned business within the meaning of
Article X, § 20(2)(d) of the Colorado Constitution, a government -owned business organized
pursuant to C.R.S. 37-45.1-101 et seq.
O
Tow of Eaton, Colorado, Water Enterprise , "`� F •
Scott E. Moser, Mayor �° * • j�
SEAS- �••//J
ATTEST:
on. 14
Margare Jane Winter
The Town of Erie, acting by and through its Erie Water Activity Enterprise, a water
activity enterprise and government -owned business within the meaning of Article X.,
Section 20(2)(d), of the Colorado Constitution organized pursuant to C.R.S. 37-45.1-101 et
seq.
a
By: r -
Naive:. 1- _Ci 11. vl I
Title: '� "/
City of Evans
B
Name:,,
Title: M A ,F
The Fort Collins -Loveland Water District, acting by and through its Water Activity
Enterprise, a quasi -municipal corporation and political subdivision of the State of
Colorado
By:
Title:
City of Fort Lupton Utility Enterprise
0.0
Name:
Title:
Fort Morgan Water Works and Distribution Enterprise, an enterprise of the City of Fort
Morgan, a Colorado home rule municipal corporation and political subdivision of the State
of Colorado
/ �� A
Title:p %Z
Town of Frederick
B
Name:—Tracie Crites
Title: Mayor
The City of Lafayette, a Colorado home -rule municipality, acting with and on behalf of the
Lafayette Water Fund Enterprise, a government -owned business within the meaning of
Article X, § 20(2)(d) of the Colorado Constitution, organized pursuant to C.R.S. § 37-45.1-
101 et seq., and owned by the City of Lafayette
,-- DocuSignetl by:
By: _ + jamit, RaAiy's
— ACF989D418B348 ...,
7amia HarKins
Name:
Title: Mayor
Docusign Envelope ID: 4Ae1B009-A195-403D-AC6C-FB94003C4B42
Left Hand Water District, acting by and through its Water Activity Enterprise, a Colorado
quasi -municipal corporation and political subdivision of the State of Colorado
By: ✓ V
Name:
Title:�`t�
Morgan County Quality Water District acting by and through the Morgan County Quality
Water District Enterprise, a government -owned business within the meaning of Article X, §
20(2)(d) of the Colorado Constitution, organized pursuant to C.R.S. § 37-45.1-101 et seq.,
and owned by the Morgan County Quality Water District
Name:
Title: c e„'
Town of Severance, a Colorado Statutory Town
J
By: 0 �A I ,.�
Name: t ,nnao( I�A v` . I"��L —O
Title: IA 6-12
DocuSign Envelope ID: F400ADD0-534A-4103-AB2F-DF948D205BBD
The Town of Windsor Water Utility Enterprise, an enterprise within the meaning of
Article X, §of the Colorado Constitution, owned and operated by the Town of Windsor, a
Colorado home rule municipal corporation
DmuSlgned W.
s� N.AL
By:
Name:
Shane Hale
Title: Town Manager
EXHIBIT "A"
• The Northern Integrated Supply Project Water Activity Enterprise
• Central Weld County Water District Water Activity Enterprise, organized pursuant to
C.R.S. § 37-45.1-101 et seq., and owned by Central Weld County Water District, a Colorado
special district and quasi -municipal corporation
• The City of Dacono, a municipal corporation
• Town of Eaton, Colorado, Water Enterprise, a government -owned business within the
meaning of Article X, § 20(2)(d) of the Colorado Constitution, a government -owned
business organized pursuant to C.R.S. 37-45.1-101 et seq.
• The Town of Erie, acting by and through its Erie Water Activity Enterprise, a water
activity enterprise and government -owned business within the meaning of Article X, Section
20(2)(d), of the Colorado Constitution organized pursuant to C.R.S. 37-45.1-101 et seq.
• City of Evans
• The Town of Firestone, a municipal corporation, acting with and on behalf of the Firestone
Water Activity Enterprise, a government -owned business within the meaning of Article X, §
20(2)(d) of the Colorado Constitution, organized pursuant to C.R.S. § 37-45.1-101 et seq.,
and owned by the Town of Firestone
• Town of Frederick
• The Fort Collins -Loveland Water District, acting by and through its Water Activity
Enterprise, a quasi -municipal corporation and political subdivision of the State of Colorado
• City of Fort Lupton Utility Enterprise
• Fort Morgan Water Works and Distribution Enterprise, an enterprise of the City of Fort
Morgan, a Colorado home rule municipal corporation and political subdivision of the State
of Colorado
• The City of Lafayette, a Colorado home -rule municipality, acting with and on behalf of the
Lafayette Water Fund Enterprise, a government -owned business within the meaning of
Article X, § 20(2)(d) of the Colorado Constitution, organized pursuant to C.R.S. § 37-45.1-
101 et seq., and owned by the City of Lafayette
• Left Hand Water District, acting by and through its Water Activity Enterprise, a Colorado
quasi -municipal corporation and political subdivision of the State of Colorado
• Morgan County Quality Water District acting by and through the Morgan County Quality
Water District Enterprise, a government -owned business within the meaning of Article X, §
20(2)(d) of the Colorado Constitution, organized pursuant to C.R.S. § 37-45.1-101 et seq.,
and owned by the Morgan County Quality Water District
• Town of Severance, a Colorado Statutory Town
• The Town of Windsor Water Utility Enterprise, an enterprise within the meaning of Article
X, §of the Colorado Constitution, owned and operated by the Town of Windsor, a Colorado
home rule municipal corporation