HomeMy WebLinkAbout1992 Ordinance No. 020ORO l:-IANC E NO.-~
Sl~RI E:S OF 1992
BY AUTHORITY
COUNC IL BILL NO . 18
INTRODU CED BY COUN CIL
MEi\ffiER GUU,EY
AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF
ENG LEWOO D, THE CITY OF LAKEWOOD , THE CITY OF LITTLETON, AND METRO
WASTEWATER REC LAMATI ON DI STR ICT SHARING CO MM ON SERVICES AND
EXCHA NG I NG S HARED INFO RM AT IO N REGARDI NG LO WRY LANDFILL
SU PERFUND SITE .
WHEREAS , th e Cities of Englewood, Lakewood and Littl eto n, Co lorndo and the Metro
Wostewnter Reci o motion Di strk t are political subdivisions of the State of Colorado and are
t he subject of on odministrnlive proceeding by the EPA under Section l04 ond 122 of the
Co mprehen sive Environmental Response , Compensation and Liability Act of 1980
(CE RCLA ), as amended, to participate in o remedial investigation/feas ibility study at the
Lowry Lnndlill Superfund Site; a nd
WHEREAS, the parties are involved in insuranee coverage litigation styled~
Littleton et al v Commerriol lJnion Asctnrnnce Comoenic:, et aL Ci vil Action No . 91 CV
00723, Denver Di strict Cou rt: City ofl.akewood y United States Fire lnsurenQ'.,Ci1-..fl..lll ..
Civil Action 90 Z 880 U.S.D .C. Colo: and r..•(etro Wastewater RecJnma tion Qj c;J v
Continental Cos Co el a). Civi l Act ion No . 89 C 895 U.S .D.C. Colo., and expect to becom e
in volved in additional litigation relating to the Lowry Site, including a civil action Ci1x..and
County of Denyer y Adolph Coor s Co et a)., Cn se No . 91 F 22333 U.S.D.C. Colo.; nnd
WHEREAS, the parties cu rrently hove and anticipl'.t e in the future h avi ng co mmon
opponents, issues of low nnd fncL a nd claims and defe n ses in the odministrativP p,:-1ce eding
a nd litigation rel a ting to th e Lowry Site: and
WHEREAS, the parties co ntemplate that in th e future they may agree to shore various
co mmon costs and services, including but n ot li mited to a joint aocument repository,
litiga t ion s 1Jpport services, common ccul"\sel. expert witnesses and another consulting
C'O mmunicntions, information, co mmo I docu ments, legal r esearch and furthe r their
co mmon interests in the administrative p r oceedin g and lil'.igation r elating to th e Low ry Site
subject to the joint defense doctrine as set fo rth in to Re Grnnd .Jury Subooena'-902 F .2d 244
!-Ith Ci r. 1990) ond tJnjted $rn 1e• y Schwjmmer. 892 F.2d 237 (2d Cir. 1989 ); anp
WHEREAS, durinc the co urse of sharing Common Services and exchanging Shored
ln fo r mntion, confidential and/o r prh•ile ged mntters may b e com municated among or
r eceived by the Pnrti es, including co mm unications made betwet•n each party nnd i t s
nttorneys in confidence fo r t he pu rpose of seek ing, obtaining or j)r O\-iding legal a ssistance
subject t o th e ::ittomey-clicnl privilege as set fo rth in tJniobn Co v 1Joited States, 449 U.S. 383
11981) and docu ments nnd other t3ngihle things pre pared in nnticipotion oflitigntion or fo r
trial by or fo r anoth er pnrty or by or for th :n party's representa t ive subject to the work -product
doctr ine as set fo rth in Hickmon y To\·lor. 329 U.S . 495 <19 47), Federal Rul e of Civil
Procedure 26 ::ind Colo r ::ido Rule of Civ,i r'rocedu r e 26, n.nd
WHERE.-\!,, the applicability of the joint defense doctrine to the shanr.g of Com m on
Sen ices nn j th e exch:lnge of Sh:1red Inforr.1:1tio11 h as been placed into issue by the opinion of
:l mngistrnte in \J ,•tro Wo c;Jewilt Pr Reclamn tin o rn~t \' rontJOPQ fO) ca ~ ro P\ n) 'anti
C !\ "'f I ilkewood v l"mted f:t.Ht'' Eire In'-Ca el nl <unrn. dated Janu:u~ 23. 1992. :-ind
WII EREAS, it is the d esi re of the Parties to protec t nnd to not waive a ny privi leces that may
np pl y to hared In fo rmation a nd may be avail able to each pa rty, in cluding but not li mited to
ntto rney-clienl, work -produ ct, d eliberative proc ess, execu tive session, public office or other
rip pli co.b\e pri\'ilegc s ; and
WI-I EREAS , t he re nrc m utual econom ic and othe r benefits thnt will ac crue to eoch party by
the sh n?"ing o( Co mmon Services and the exchange of Shared In fo rmatio n a nd i t is in the best
in terest of the Parties to en t e r in to this Agreement to protect. co nfidential in fonnati on a nd
p r iv il eg es:
NOW , T HEREFORE, BE IT ORDAI NED BY T HE CITY COUNCIL OF THE ClTY OF
F.NGLEWOOD , CO LORADO, AS FOLLO WS:
~-The En glewood City Counci l he reby approves the agree me nt entitled "J oi nt
Defense/Litigation Ag,-ee ment" between the City of Engl ewoo d, the City of Lakewood, th e
City of Littleton and Metro W astewater Recla mation District Sha ring Com mon Se rvic es ond
Exc ha nging Shared In for mation regarding Low ry Landfill Superfund Site , said agreem e nt
generally provi des as follows:
1. It is agreed that all Shared In forma tion, whether wri tten or otherwise, ex changed
between the Parties or received by one pa rty fr om the other sh all be held in strict
confide nce by the reci pient and shall not be di sclosed lo third parties.
2 . Shared Information e xch anged a mong the Pa rties or their counsel under t he
Agreement. is fort.he sole purpose of asserting claims or defenses in pre paration of,
or in anticipation of, trial or litigation relatin g to the Lowry Site.
3. No Party may waive any Privileges a pplicable to Shared Info rmation received
from any other party to the Agreement. ·
-t . Int.he event a question arises as to wh ether a waive r of any Privi leg es a pplicable to
Shored Informatio n has occurred, it is the intentio n of the Partles that no waiver
shall be co nstrued to have occurred.
5 . Disclos ure of a ny Shared Info rmation by any party about its claims or d efe nses lo
third parties asserting or defending similar claims sh all be conside red disclo s ure
t o "frie nd ly parties" and shall not be deemed a waiver by any party to the
A-;ree ment of any Prl\'lleges.
6 The provisions of rhe Agreement shall not a pply to Shared Information which is
n ow or h ereafl.er becomes public knowledge, through no wrongful act, and any such
di sclosu re can be made v.1thout viol ation of the Agreeme nt.
i . In the t.?V "lll Shared bformauon ts required to be di closed by any pa rty as a result
oi a Cou .. Order or u nder la w, s uch pa rty ma y sa tisfy it s confide ntiality
obli gatio n£ ht"r t!u nder by not1fy10g t he party that gener3t ed the informat io n and
f;Wtn., such pa rty an opponunity to prot ect the co nfidenlinlity of the Shared
hio rmntt on
In o rde r to preserve a ll Pn\'lleges a nd confidentrnh ty protection available lo ench
p3rty to the maximum extent allowed by lnw , it is ogr~ed that no p.:irty shall use the
.c cn ices of any co m mon cc un stl h ired fo r th e Dcn\'er suit for otl-.c r iutu re li tig.:iti on
r~btrng t o Lowry, v•1Lh out t he ex pres!:. written p~rm ission of al! other parties.
-2·
e ~ Auth ority is gwen to allow th e i.,Lher entiti es to joi n and pnrticip nte in this
Agre ement upon notice to the City Cou nc il.
Introduced , ren d in full , and pn ssed on fir st ren ding on th e 20 th day of April , 1992 ,
Publi shed as a Bill fo r a n Ordinance on the 23 rd dny of Ap ril, 1992 .
Rend by li t.le and passed on final rending on the 4th dny ofMny, 1992 .
Published by title as Ordi na nce No . .;1Q Serie s of 1992, on the 7th da) of Mn y, 19 92 .
yde E. Wigginf.~ayor
ATTEST :
vJ,4u'Y ..;(J a&:< l..-'
Patricio H. Crow, City Cl erk
I, Pa tricia H. Crow , City Clerk of the Ci ty of Englewood, Col orado, hereby ce rtify that the
above and foregoin g is a true co py or the Ordinnnce passe d on final rending and publi shed
by title as Ordinance No.~. Series of 19q2_
~-uiY✓--~
Patri cia H. Crow
.3.
JOINT DEFENSE/LITIGATION AGREEMENT
W'IIEREAB, the Cities of Englewood, Lakewood and Littleton,
Co orado and the Metro Waste,..'ater Reclamation District
(h erei n after r eferred to collectively as "Parties") are polit J .:al
subdivi s io,1s of the State o f Colorado and are the subject of ar.
admi nistr a tive procee,Hng \>Y the EPA under Sections 104 and 1,.2
of the Comprehensive Env i'ronmental Response, Compensation and
Liability Act of 198 0 ("CERC LA"), as amended, to participal'.r• in a
remedial invest i gi.•-ion/f ea sibility study at the Lowry Landfill
Superfund Site ("t.owry Site "); and
lfllEREAS, the Parties are i nvolved in ins urance coverage
l itigation styl ed Ci ty of Li ttleton. et al . v. Commercial Un i on
Assurance Companies, et al ., Civil Action No. 91 -CV-00 723 (Den v er
Di stri ct Court); city of La kewood v . United states Fire In~,
et l!..k, Civil Action 9 0 -Z-880 (U.S.O.C. Co lo.); and Hll.rQ
Wastewa ter Reclamation Dist. v. Co nt inental cas. co., n tl.,.,
Civil Acti on No. 89 -C-89 5 (U.S.D .c. Colo .) and expect ·c o become
invol ved in additiona l litigat i on relati ng to the Lowry S ite,
i nclud i ng a civil act ion sty led City and Courty of Der\Y0.L.Y~
Adol oh Coors Co., tl al., Case lie. 91-F-2233 (U.s .o.c;. r:ol->.)
("Denve r s u it 11 ): a nd
WHEREAS, t he Pa rties current l y hav ~ and antici pa te in t he
:'t.:t.u re havi ng c om.man opponents, i ssue s of law an d fact: arid claims
and de~enses in :he ad~inistrat ive proceeding a nd li tigation more
pa~t:c •:la rl y de sc"ibed above rel a ting to t he Lo,r y Si te ; a nd
e IIBEREAS, the Parties cont e mplate that in the f uture they may
agr e e to share va r ious common coGts and services, including but
not lim i tad t o a jo i nt docu1nent repos1cory, li tigation support
services , comm on counsel, expert witnesses and other consult i ng
services ("Common S ervices") and may other-ise exc hange
communica t ions, in f ormation, common documents, legal researc h and
l i tigation strate g i es ("Shared Information") in an effort to
further the ir common interests in the administrative proceeding
and liti gati on more particularly described above relating to the
Lo wry Site s ubject to the joint defense doctrine as set f orth in
I n Re Gra nd Jury subpo e nas. 902 F .2d 244 (4th Cir. 1990) and
Un i ted states v . Schwimmer. 892 r.2d 237 (2d Cir . 1989): and
WBBIUIAS, during the course of sharing Common Services and
exchanging Shared Information, confidential and/or privileged
matters may be communicated among or received by the Parties,
i ncludi ng commun i cations made between each party and i ts
a ttorneys in con fi denc e for tlrn purpose of seeking, obtaining or
provid i ng legal ass i stance subject to the attorney-client
privile g e a s s et fo r th in Up john co. v . Unit ed States . 4 4 9 u .s.
38 3 (1 9 81 ) and documents and o ther tangible things prepa r ed in
a n tic i pa t ion of l i tiga tio n or f o r t rial by o r f o r a noth e r party
or by or for that pa rty 's r ep r esentative subject to t he work-
produc t doctri ne as set f orth in Hickman v . Tay lor, 329 u.s. 4 95
(1947), Fe deral Rule of Civil Procedu r e 26 and Colorado Rule of
Civil Procedure 26; and
lfHEREAS, the applica b ility o f the jo int defense doctrine to
the sharing of Common Services and the excharge of Shared
Information has been placed i n'so issue by the opinion o f a
magistrate in Metro wastewater Reclamation Dist. v. Cont i nenta l
cas. co .. ~. and city oC Lakewood v. United states Fire Ins.
CQ..,_._ ~. Jilll1n, dated January 23 , 199 2; and
WREREAS, it is the des ire of the Parties t o protect and to
not waive any privileges that may apply to Shared Information and
may be available t o ea c h party, including but not limited to
attorney-client, work-product, delibe rative process, e xecutive
session , publ ic off ice or other applicable privileges
("Pri vileges"); and
Wlll!REAS, there are mutual economic and other benef i ts that
will accrue to each party by the sharing of Common Services and
the exchange of Shared Information and it is in the best i nterest
of the Parties t o enter i nto this Agreem e nt to protect
confidentia l information and Privileges,
NOW , THERl!:FORE, in consideration f o r t h e mutual promises
co11tained herein, the Parties agree as follows:
1. It is agreed that all Shared Information, whether
writte n or other~ise, exchanged between tho Parties or
rece :ved by one party from the other shall be ,.~ld in strict
confidence by the recip ient and shall not be disclosed to t h ird
parties .
2. Sha=ed Information exchang ed among t he Parties o r their
couns e l und er th i s Agreement is f or the sole purpose or a s serting
e
e
claims o r defenses in preparation of, or in ar..~iC::ip,a:tion of,
t i a l or lit igation relating to the Lowry Site/including but n ot
limited to the administrative proceeding and litigation more
particularly described above. Any such exchange of->:5nared
<-
Information un de r this Agre e ment shall not be deemed a waivor o!
any Privileges that may be a ~plicable to said Shared ·I~f ormation.
3. No party may waive any Privileges applicable to Shared
Info rmation rec e ived from any other party to this Agreement. In
the event one party to this Agreement discloses to any third
parties Shared Information received f r om any other party to this
Agreement, such disclosure shall not constitute a waiver of any
Privileges by the other parties unless they unanimo usly consent
to said waiver . Nothing herein shall preclude any party from
using Shared Information received from any other party to enhance
its case in litigation relating to the Lowry Site . Nothing
herein shall preclude any party from disc los ing Shared
Information generated by it. In the event of inadvertent
disclosure of Shared Information, the party responsible for such
disclosure shall be obligated to take al l reasona ble efforts to
retriev e the Shared Information .
4. In the f'Vent ~ question arises as to whethe r a waiver
of any Priv ileges appli cable to Shared Info rmation has occurred,
it is the int:ntion of th e Parties that no waiver shall be
construed to ha :e occ ur red . The parties sp0c i fically intend that
this Agree~e nt and th e exchange of ShA red Info r mation and s haring
of Common Ser1ices p rsuan t o this Ag r eement be cons trt:ed
consistent with the appl i cat i on of the attorney-client pr i vilege
as set forth i n Uoj ohn c o. v. United States, 44 9 u.s. 383 (1981):
the work-product doctrine as set forth in Hickman v. Taylor. 329
U.S. 495 (194 7), f e d.R.Civ .P . 26 and Colo.R.Civ .P . 26; the joint
defense doctr ine as set f o rth in In Re Grand J ury Su;poenos, 902
F.2d 244 (4th cir. 1990) and uni ted states v. Schw imme r. 892 F .2d
237 (2d Cir. 1989); and any other Privileges .
5 . Disclosure of any Shated Information by any party about
its claims o r defenses to th i rd parties asserting or defending
simila r claims shall be considered disclosure to "friend l y
parties" and shall not be deemed a waiver by any party to this
Agreement of any Pr ivileges.
6. Any c onfidentiality and non-waiver of priv i l ege
provisiolls of t his Agreement shall remain in full force and
effect without regard to whether the matter is terminated by
final judgment or settlemen t .
7. The provis i ons of this Agr e e ment shall not apply t o
Shared Information which is n ow or hereafter becomes public
knowledge , throu gh n o wron g f ul act , and any such disclosure can
be ma de wi t h out violation of th is Agreement.
8 . In t he event Shared Inf or.nation i s t ·equi red t o be
di sclose d by any part y as a resu lt o f a Court Order or unde r law,
such p art y may satisfy its confide n tiality ob lig atio ns hereunder
by not i fying t~e party that genera ted the informa tion and giving
s uch party an cpportunity to protect the confidentiality of the
Shared Inf ot""::ia~ion .
5
9 . Each party sha ll take all customary and appropriate
me a su r es to ass u re that. any pe r s on who is granted a ccess to any
Shared Information , or who partici pates in work on joint projec t s
or as s ists counsel, is t ~mi liar with the terms ot this Agreement
a nd comp l i e s wi th its terms. It is agreed tha t no one provid i ng
Comm on Serv ices wi ll be allowed acces s to any one party's
c~nfidential a nd /or privileged information and documents, but
that anyone prov i d i ng Common Services shall only ha v e access to
Co~mon Services or Sh ared In fo rmati o n.
10. The Parties i ntend by this Agreement to protect fro m
d isclosure to th i r d pa rti es a ll Common Services and Shared
Information exchanged a mong themselves to the greatest extent
permitted by law, rega rdless of whe t her the exchange occurred
before executi on o f t his Agreement and regardless of whether t h e
wri t ing or document i s marked 11 conf i dential 11 or "pr iv ileged .11
The Parties specifically intend by th i s Agreement to protect from
di s closure to ins urance c a r riers any Shared Informa tion re l a ting
to the insura nce c overag e l i t iga t i on more part icular ly desr.r ibed
above a nd t o protect from disclosu r e to othe r po t ent i a lly
respo ns i bl e parties and EPA any Sh ared In form at ion r e l ati ng to
cost allc~ation .
11. In order to preserve all Privileges and c o n fi d e nt iality
protection a vailable t o each pa ~ty t o t he maxi mum e xt ent al l owed
by law, i t is agreed that n o party shall u se the s erv ices of any
c omm on counsel hired for the Denver suit for other futu re
6
litigation r elating to Lowry, without the express written
permiss ion o f all other parties.
12. Th is Agreemen t ma y be executed and delivered in any
number or counterparts, each of which when executed a nd del ive red
shall be deemed to be an original , but such counterpa rts s h all
together con stitute o ne and the same document.
This Agreem e nt is e ffective as ot December 26, 1991.
49 CITY OF EN GLEWOOD
By: =--,---,-~--,----,-,------,c-=-,----,-Cl yde Wiggins, Ma yor of Englewood
ATT EST:
By:~,------------Pat Crow, City Clerk
CITY OF LAKEWOO D
By:,.,....,....,...---=---,,-----,,-.,..,----,-,------Walter C. Ka ne, City Manager
9
ATTEST:
By:,-:-----,=-,,-,----=-,-,---=,--.,....-Karen Goldman, City Clerk
APPROVED AS TO FORM:
By:=---,,--,,,.----,---.,.-,---Roger w. Noonan, City Attorney
49 CIT¥ OF LITTLETON
By :.,,.__~~-=---,---
Susan M. Thornton,
President of Littleton .y Co uncil
ATTEST:
By:
"'°J-=-a"n~i-c-e-=o::-w,-,e""'n-,-=c"i-ct-:--y-::c'"'1-e-r""'k __ _
~PPROVED AS TO FORM:
By:Larr y-W7Ber~k-o-w~i~t-z-,-----
City Attorney
10
METRO WA STEWATE R RECLAMATI ON DI STRI CT
By: ··------Robert w. Hit e, Di str 'ct Man~g er
11