HomeMy WebLinkAbout2007 Ordinance No. 071•
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ORDINANCE NO. '7/
SERIES OF 2007
BY AUTiiORITY
COUNCIL BILL NO. 73
INTRODUCED BY COUNCIL
MEMBER MOORE
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT ENTITLED
''CONFIDENTIALITY AGREEMENT'' BETWEEN THE COUNTY OF PARK, COLORADO;
THE UPPER so urn PLATTE WATER CONSERVANCY DISTRICT; THE CENTER OF
COLORADO WATER CONSERVANCY DISTRICT; THE CITY OF TIIORNTON,
COLORADO; PUBLIC SERVICE COMPANY OF COLORADO; THE CENTENNIAL
WATER AND SANTTATICN DISTRICT; AND THE CITY OF ENGLEWOOD, COLORADO,
PERT AINlNG TO A JOINT EFFORT TO COLLECT ON JUDGMENTS AWARDED
AGAINST THE PARK COUNTY SPORTSMEN'S RANCH IN THE DISTRICT COURT FOR
WATERDMSION !,COLORADO.
WHEREAS, the passage of this proposed Ordinance authorii.es Englewood 's water rights
attorney to work with the County of Parle, Upper South Platte Water°Conservancy District, the
C.onler of Colorado Waler Conservancy District, the City of Thornton, the Public Service
,:oinpany of Colorado , and the Centennial Water and Sanitati on District in a joint effort 10
co ll ect on judgments awarded against Park County Sportsmen 's Ranch; and
WHEREAS , the panics of this Agreement were objectors to an aggressive water rights
application filed by the City of Aurora and Park County Sportsmen's Ranch, LLP ("PCSR") in
Case No . 96CW014, in the District Court for Water Division I; and
WHEREAS, the initial trial took place in 2000 with judgment and costs for litigation awarded
to the objectors in 2003 against Park County Sportsmen 's Ranch LLP , with the City of
Englewood being awarded $100,000 ; and
WHEREAS, no payment have been received, just a recorded interest in the ranch ; and
WHEREAS , the passage of this proposed Ordinance and this Agreement allows the objectors
to share and exchange infonnation, share costs and strategies and keep infonnation confidential
to determine whether to pursue the judgment funher to collect these judgments ;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD, COLORADO, AS FOLLOWS:
~ The Intergovernmental Agreement for "Confidentiality Agreement" is hereby
accepted and approved by ti 'Englewood City Council and is attached hereto as "Exhibit A" .
~ The Mayor is authorized to sign said Agreement for and on behalf of the City of
Englewood .
Introduced, read in full, and passed on first reading on the 3rd day of December, 2007.
Published as a Bill for an Ordinance on the 1• day of December. 2007 .
Read by title and passed on final rcadi -on the 17th day of December, 2007 .
Published by tide as Ordinance No .'? I, Series of 2007, on the 21st day of December, 2007 .
I, Loucrishia A. Ellis, City Clerk of the City of Eng lewood, Colo rad o, hereby cenify that the
above and foregoing is ~rye copy of the Ordinance passed on final reading and published by
"""'°""""""'· :.JJS,rioo "'"°'· ~j ~
Loucrishia A. Ellis
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TO :
FROM :
DATE :
RE :
Nancy Fritz
Jeanne Kelly ./
Cathy Burrage J/J
Nancy N. Reid, As sistant City Attorney /t11 cl
2008
Re Unsigned Agreement that goes with Ordinance on Joint
Defense and Confidentiality Agreement -Sportsmen's Ranch
Cathy has spoken with Dave Hill's office and they will not have the agreement signed at
this time because the case has gone to trial and is completed . Therefore , the entire issue
is moot. Please attach the agreement that shows that our Mayor signed and make a
notation that we do not have signatures of the other parties and attach it to your copy of
the ordinance for your file s. ~ ,!Iv , 7; S ev it',r :.U," '1, o ;o, ,.,,,,.,vt.,~ .J
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CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT ("Agreement') 11 entered Into thl1
__ day of December, 2007 , by and among the County of Park, State of
Colorado, whose address Is P.O. Box 1373, Fairplay, Colorado 80440-1373 ("PC ");
the Upper South Platte Water Conservancy District, a qu111l-munlclpal corporation
organized under TIiie 32, whose address Is P.O. Box 612, Fairplay , Colorado
80440-0612 ("USPWCD"); the Center of Colorado Water Conservancy District, a
quasi-municipal corporation organized under TIiie 32, whose address Is P.O. Box
1747, Fairplay, C'l 80440-1747 ('CCWCD"); the City of Thornton , a Colorado
municipal corporation , whose addre Rs Is 9500 Civic Center Drive, Thornton, CO
80229 ("Thornton "); the City of fnglewood , a Colorado municipal corporation ,
whose address I~ 1000 Englewood Parkway, Englewood, Colorado 80110-2304
('Englewood "); t,:c, Centennial Water and Sanitation District, a quasi-municipal
corporation organized under TIiie 32, whose address Is 62 West Plaza Drive,
Highlands Ranch, Colorado 80129 ("Centennial"); (collectlvaly the "Parties").
WHEREAS , the Parties were objectors to the application for water rights
filed by the City of Aurnra and Park County Sportsmen's Ranch, LLP ("PCSR ") In
Case No . 96CW014, iii the District Court for Water Division 1 ("the Application '),
and were similarly aligned In oppos i ng the Application ;
WHEREAS, the entitles below were each awarded their costs against Park County
Sportsmen 's Ranch LLP In the following amounts :
PC/USPWC $473,916.31
Center of Colorado Water Conservancy District $206,687.69
("CCWCD
Thornton $235,775.87
Centennial $186,547.42
Englewood $98,908 .84
PCWPC $14,107.07
James T. Benes , James T. Benes Jr. and $4,692.91
Cassandra L. Benes Trust and Tarryall Land &
Cattle Company ("Benes
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WHEREAS , the Judgment awarded to PCWPC has been a,.slgned to CCWCD and the
judgment awarded to Benes has been assigned to Centennial ;
WHEREAS, the purpo se of this agreement Is to allow for poten ti al f uture Joint efforts
to collect the above referenceu j udgments ;
WHEREAS . the Parties have concluded that for the purpose of collecting the
judt(m ents, they have substantially Identical legal Interests and that , due to such Identical
Interest, the parties and legal counsel must engage In free and open communication In
sharing of Information so that legal counsel can provide efficient and appropriate legal
advice co nr ernl ng this matter;
WHEREAS, the Parties have concluded that It Is In their common Interest to share
Information regarding the collection of the Judgments , Including written and verbal
communications which would normally be subject to the attorney/client privilege and/or
the attorney work product doctrine If solely shared between counsel and their own clients;
WHEREAS , the Parties enter Into th is agreement to confirm their common Interest
in this matter and to preserve all privileges and Immunities whi ch attach to any materials
and commun ications that may have been or may be In the future shared among the
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Parties and their legal counsel In pursuit of the collection ; •
WHEREAS , all of the Parties filed transcripts of their Judgments In the real estate
records of Park County;
NOW THEREFORE , In consideration of the foregoing recitals, the Parties and their
counsel agree as follows:
fAtl.!n
The Parties to this Agreement Intend It to Include the law firms and
attorneys who have signed their names below (the 'Signatories "), as well as those
employees, officers , directors, non-testifying consultants and other Individuals
associated with each party who have actual know l edge of shared privileged
information.
W!!l.L!lod Consideration
1 . All communications among the Signatories and the Parties which are
made In connection with the Action are confidential and privileged . Such
communications (hereafter referred to as "Shared Privileged Information")
Include, but are nol limited to: (a) discussions among the Parties at meetings to
Investigate or pursue cost recovery litigation; (b) consultations with experts, or •
reports or analyses prepared by such experts, prior to a Joint decision that any
such expert will be called as a witness or that such report or analysis will be used
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at trial ; (c) any communication to or from the Signatories, or the Parties, whether
written or oral, which relates In any way to the mental Impressions, co ~duslons,
opinions, or legal theories of any Signatory or other representative of a party
concerning cost recovery lltlgatl,n .
2 . Unless all the Signatories consent , shared privileged Information
may be transmitted only to the Signatories , the Parties, separate counsel
re presenting the Parties, and, to the extent necessary , expert consultants
retained by the parties . No party shall know in gly make use of Shared Privileged
Information to the disadvantage of any of the other parties to this Agreement .
3 . It Is understood that the types of materials which might not be
•ro tected by the Joint litigation privilege pursuant to this Agreement Include: (a)
i11 tervlews with non-party witnesses; or (b) any Information available In the public
d1.,main , whether or not such Information was obtained from such public sources.
4 . The Signatories w i ll take responsibility for ensuring that their clients,
any experts consulted , and any w itnesses Interviewed will be Informed , to the
ex tent appl i cable , of the confldentlallty restrictions Imposed by this Agreement.
5 . Any party who withdraws from this Agreement , or falls to comply
with Its terms , shall promptly destroy or return to any other pa rty to the
Agreement any Shared Privileged lnlormatlon In hi s, her, or Its possess i on . The
withdrawing party shall remain obligated to preserve the conf i dentiality of all
Sh a red Privileged Information received by or disclosed to It pursuant to the terms
of this Agreement .
6. Damages for breach of contract, specific performance , and
injunction , are remedies available for enforcement of the confidentiality te r ms of
this Agreement.
7 . This Agreement may be executed In counterparts , and a signature
transmitted by facsimile shall have the same force and effect as the original
signature.
Dated this ____ day of _______ , 2007 .
Signatories:
PARK COUNTY
By ___________ _
CENTER OF COLORADO WATER
CONSERVANCY DISTRICT
By ____________ _
Its ___________ _
UPPER SOUTH PLATTE WATER
CONSERVANCY DISTRICT
By ___________ _
Its ___________ _
BERNARD LYONS GADDIS & KAHN, P.C.,
Counsel for P<i rk County and Upper
South Platte Water Conservancy District
By ___________ _
CITY OF THORNTON
By Jack Ethredge
Its ~\y Manager
Approved as to form and as Counsel for
Thornton
Margaret Emerich, City Attorney
Dennis A. Hanson, Assistant City
Attorney
Its ___________ _
CENTER OF COLORADO WATER
CONSERVANCY DISTRICT as assignee of
PARK COUNTY WATER PRESERVATION
COALITION
By ___________ _
Its ___________ _
FELT MONSON & CULi CHiA, LLC ,
Counsel for Center of Colorado Water
Conservanc_y District and Center of
Colorado Water Conservancy District as
... 3lgnee of Park County Water
f', :servatlon Coalition
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By ___________ _
CITY OF ENGLEWOOD
By Stewart H, Fonda
Its Pf rector of Utilillei
BERG HILL GREENLEAF & RUSCITTI LLP,
Special Water Counsel for City of
Englewood
By Geoffrey M, wunam10n
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CENTENNIAL WATER AND SANITATION DISTRICT
By _____________ _
Its ____________ _
HAHN , SMITH , WALSH & MANCUSO ,
P.C., Counsel for Center
Sanitation District -Nater and
Steven J. Hahn
GIibert Y. Marchand , Jr., Counsel for
Centenn ial Water and Sanitation District ,
l:\tlltnts\p\p,,filc\ltc \20010921i0ult contct1on Md confkltnUa1i«r •1rNmtn1.c1oc
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COUNCIL COMMUNICATION
Date: Agenda Item: Subjed:
December 3, 2007 11 a Ill Confidentiality Agreement with Park Coun ty and
South Platte Water Conservancy District regarding
Sportsmen's Ranch
Initiated By: I Staff Source :
Utilities Department Stewart H. Fon da, D irector of Utilities
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
None.
RECOMMENDED ACTION
The Englewood Water and Sewer Board, at its November 13, 2007 meeting, recommended
Council adopt a Dill for an Ordinance approving a Confidentiality Agreement authorizing the City of
Englewood's Water Rights Attorney to work with Park County, the Upper South Pl atte Water
Conservancy District, the Center of Colorado Water Conservancy District, the City of Th ornton,
Centennial Water and Sanitation District, and the City of Englewood in a joint collection effort on
judgments award ed against the Park County Sportsmen's Ran c h.
BACKGROUND, ANALYSIS, AND ALTERNATIVES IDENTIFIED
Englewood's Water Rights Attorney David Hill of Berg Hill Greenland and Ruscitti submitted a
Confidentiality Agreement to all ow M r. Hill to work with the County of Park, Upper South Platte
Water Conservancy District, the Center of Colorado Water Conservancy Distric~ the City of
Thornton, and the Centennial Water an d Sanitation D istrict. The Confidentiality Agreement would
allow a joint effort to coll ect on judgments awarded against Park County Sportsmen's Ranch.
The original litigation (Case #96-CW0l 4) was an aggressive wate r rights application involving the
Park County Sportsmen's Ranch and the City of Aurora. The initial trial took place in 2000 with
judgment costs for litigation costs awarded to the objectors in 2003. En glewood's share awa, ded
was S 100,000. Th ~ applicants In the case had funded their case through loans, so no payment was
receive d, just a recorded interest in the Ranch .
This agreement would allow Englewood and the parties involved to exchange information and
share costs and strategies. The Confidentiality Agrv i ment would allow the objectors to share and
exchange Information and keep Information confidential to determine w hether to pursue the
judgment further to collect our share. Other parties In this agreement have already si gned a joint
prosecution agreement Englewood is waiting to determine if It should join the effort based on the
results of the efforts of the other parties. The Confidentiality Agreement will allow Englewood to
evaluate the efforts.
FINANANCIAL IMPACT
~one .
LIST Of ATTACHMENTS
Bill for an Ordinance
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