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17-0817_BLENHEIM FACILITY MANAGEMENT LLC_Joint Defense Agreement JOINT DEFENSE AGREEMENT This Joint Defense Agreement ("Agreement") is made and effective August 7, 2017 (the "Effective Date"), by and among, the City of San Juan Capistrano ("City") and the City's attorneys Best Best & Krieger LLP, on the one hand, and Blenheim Facility Management LLC ("Blenheim") and Blenheim's attorneys Call & Jensen, on the other hand (collectively, "Parties" and individually, "Party"). RECITALS WHEREAS, on or about June 2, 2017, Orange County Coastkeeper("OCCK") filed a lawsuit against the City and Blenheim for alleged pollution regarding Rancho Mission Viejo Riding Park of San Juan Capistrano and the Arizona Crossing in San Juan Creek. The lawsuit was filed in the United States District Court, Central District, Case No. 8:17-cv-00956-JLS-DFM ("Action"). WHEREAS, based on the claims made by OCCK in the Action, City and Blenheim have concluded they have a joint defense and/or common interests in defending against OCCK's allegations in the Action, and it is in their best interests to cooperate with each other to advance such joint defense and/or common interests in the Action without waiving any privilege. WHEREAS, to prepare a joint defense and/or common interests in the Action, the City and Blenheim desire to share confidential and/or privileged information, including, but not limited to, documents, factual material, mental impressions, memoranda, reports, attorney work product, and other information. Such information, when shared between the Parties under this Agreement, and whether oral or in writing, is referred to as"Defense Materials". WHEREAS, City and Blenheim wish to continue to pursue their separate, but joint defense and/or common, interests with respect to the Action and to preserve to the maximum extent possible the attorney-client, work product doctrine, and/or other applicable privileges, doctrines and immunities and to participate in this Agreement without diminishing such privileges, doctrines or immunities in any way. AGREEMENT Based upon the above recitals, which are incorporated by this reference, and in consideration of the mutual promises of the Parties, it is agreed as follows: 1. Confidentiality of Defense Materials A. The Parties may exchange or disclose Defense Materials in furtherance of the City's and Blenheim's joint defense and/or common interest. Defense Materials and all work performed under this Agreement, shall be protected pursuant to the attorney-client privilege, work product doctrine,joint defense doctrine, and/or other applicable privileges, doctrines and immunities. Defense Materials shall be used by the Parties solely for the preparation of the City's and Blenheim's joint defense and/or common interest. Neither the Defense Materials nor the information contained therein may be used for any other purpose. Defense Materials may be provided to consultants, investigators, experts, stenographic and clerical personnel, and other 61147.20013\29796983.1 1 persons solely for the purpose of furthering the City's and Blenheim's joint defense or common interests in the Action. All such persons shall be specifically notified by the Party disclosing the Defense Materials that the Defense Materials are confidential and/or privileged, and are subject to the terms of this Agreement. B. Unless expressly stated in writing to the contrary, all communications between the Parties concerning the Action are confidential and are protected from disclosure to any entity or individual who is not a party to this Agreement ("Third Party") by the attorney- client privilege, the work product doctrine, and/or other applicable privileges, doctrines or immunities by the joint-defense doctrine. The Party in receipt of any Defense Materials shall not disclose the Defense Materials to any Third Party without the prior written consent of the Party who disclosed the Defense Materials in the first instance. Such consent may be obtained in writing from that Party's attorney. C. Any unauthorized disclosure of Defense Materials to any Third Party shall not constitute a waiver of any otherwise available privilege, doctrine or immunity. The Party responsible for the unauthorized disclosure shall use its best efforts to "claw back" the disclosure, including filing any appropriate motion. Any Party shall have the right to seek injunctive relief to prevent a threatened disclosure of confidential or privileged materials produced pursuant to this Agreement that would violate this Agreement. All Parties agree that there is no adequate remedy at law for a disclosure in violation of this Agreement. D. If another person or entity requests or demands, by subpoena or otherwise, any Defense Materials, the Party from whom such material is requested or demanded shall immediately notify the other Parties. In addition, the Party from whom Defense Materials are requested or demanded shall, prior to production of the Defense Materials, assert all applicable rights and privileges and shall take all reasonable steps to assure that all other Parties have an opportunity to assert all applicable rights and privileges prior to production. E. The City and Blenheim acknowledge that information known to one of them need not be shared with the other, and that each is entitled to communicate and share information with the other as that Party sees fit. F. To the extent that any of the Parties exchanged Defense Materials prior to the Effective Date, such communications were made to further the joint defense of the Action, and in full expectation that all such communications would remain confidential and protected from unauthorized disclosure. Accordingly, such communications now constitute Defense Materials subject to the terms of this Agreement. G. This Agreement shall not restrict any Party from using in any manner or disclosing information which (i) was or becomes publicly available without breach of this Agreement, or(ii)was or is discovered independently by the receiving Party. H. Defense Materials exchanged under this Agreement shall continue to be confidential and/or privileged even if adversity of interest may subsequently be discerned or arise between or among the Parties to this Agreement. i 61147.20013\29796983.1 I. In the event that a Party to this Agreement is dismissed from the Action by settlement, decision,judgment or otherwise, such Party and its counsel shall not be relieved of its obligations under this Agreement with regard to the treatment of the Defense Materials. 2. No Admission of Liability or Waiver Neither this Agreement, nor any information contained in or submitted under this Agreement, nor any action taken by any Party pursuant to this Agreement, shall constitute,be interpreted, construed,or used as evidence of any admission of liability, law or fact, waiver of any right or defense, or an estoppel, against any Party by the other Party or by any Third Party. 3. No Third Party Beneficiary Except as specifically provided, nothing in this Agreement shall waive, release, or otherwise affect any right, claim, defense, interest or cause of action that any Party may have with respect to any Third Party. This Agreement is not intended for the benefit of any Third Party and shall not be enforceable by any party who is not a Party. 4. No Creation of Attorney-Client Relationship Nothing in this Agreement is intended to create an attorney-client relationship between any attorney and anyone other than the Party who is a client of that attorney. The fact that an attorney has entered into or agreed to be bound by this Agreement shall not in any way preclude that attorney from advocating any interest of the Party who is his or her client, and shall not be used as a basis for seeking to disqualify any counsel from representing the Party who is a client of that attorney in any proceeding. It is further understood that the obligations of this Agreement might in the future create a potential or actual conflict of interest such that one Party shall not be able to cross-examine another Party in this Action or in other proceedings through the use of Defense Materials, unless such materials were also obtained from independent sources not subject to this Agreement, and even though cross-examination through the use of such Defense Materials may be in the Party's interest. The rights and obligations under this paragraph shall survive the termination of this Agreement, a Party's withdrawal from this Agreement or a Party's dismissal from the Action or other proceedings. 5. No Joint Venture This Agreement does not form a joint venture or partnership by or among the Parties. 6. Amendment No part of this Agreement may be modified, altered, amended, waived or changed without the express written consent of the Parties. 7. Notice All notices under this Agreement must be in writing. Notice is given either (i) when delivered in person to the person or company intended named below, or(ii)when sent via reputable overnight courier(such as Federal Express), addressed by name and addressed to the party or persons intended, as follows, until such time as a party gives notice of a change of address in accordance with the terms of this section: 61147.20013\29796983.1 3 Blenheim C Attn: t%Gkt% A. &t4 nc e r VPoc +1Attn: Ben Siegel,City Manager Blenheim Facility Management Corporate San Juan Capistrano City Hall P.0_ to 3 5' 32400 Paseo Adelanto 4V-4 ivgi3 San Juan Capistrano,CA 92675 Phone: 9alrt.. a t 2 - $$.s co Phone: (949)493-1171 Blenheim's Attorneys City Attorney Attn: Wayne W. Call Attn: Jeffrey S. Ballinger,Esq. Call &Jensen Best Best&Krieger 610 Newport Center Drive, Ste. 700 655 West Broadway, 15th Floor Newport Beach,CA 92660 San Diego,CA 92101 Phones: (949) 717-3000 Phone: (619)525-1343 8. Assignment This Agreement shall not be assigned by either Party, either in whole or in part, without the prior written consent of the non-assigning Party. Any assignment or purported assignment of this Agreement without the prior written consent of the non-assigning Party will be deemed void and of no force or effect. 9. Interpretation The Parties have negotiated this Agreement at arm's length and have been advised by their respective attorneys, and no provision contained shall be construed against any Party. 10. Authority to Execute The individuals executing this Agreement each represent and warrant that they have the legal power, right and actual authority to bind their respective Parties to its terms and conditions. 11. Counterparts The Parties may execute duplicate originals (counterparts) of the Agreement or any other documents that they are required to sign or furnish pursuant to the Agreement. 12. Severability If any provision of this Agreement is found invalid or unenforceable, the balance of this Agreement shall remain in full force and effect. 13. Term This Agreement shall terminate as to all Parties on the date on which the earlier of the following events occurs: entry of final judgment in the Action; dismissal of all causes of action as to all Parties in the Action; settlement of the Action as to each and every Party. Any Party may terminate this Agreement effective upon written notice of termination to all other Parties. After termination, the Parties shall continue to preserve the confidentiality of all Defense Materials and this Agreement in the manner set forth herein. 14. Entire Agreement As of the Effective Date, no other agreements, express or implied, have been made by the Parties concerning the subject matter of the Agreement. All 61147.20013\29796983.1 4 prior and contemporaneous conversations, negotiations and possible or alleged agreements concerning the subject matter of the Agreement are merged and integrated in this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. CITY OF SAN JU. N C ISTRANO BEST BEST& KRIEGER LLP B. . :en - - By: Jrey S. Ballinger Cit anager / • � � T .� . A : ria orris, C f Ci" Cl-rk BLENHEIM FACILITY CALL : JENSEN MANAGE • N LLC By: Wa W. Call B tyte,. tbiara Sceat,ctee,, Title: feytee,fe tsuctrCys, • £i "`. etfleukinots, 61147.20013\29796983.1 5