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HomeMy WebLinkAboutResolution 2007-176 western area power administration 2017 hoover dam power contractsMARANA RESOLUTION N0.2007-176 RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A COMMON INTEREST IN ANTICIPATION OF LITIGATION JOINT PARTICIPATION AGREEMENT RELATING TO THE WESTERN AREA POWER ADMINISTRATION 2017 HOOVER DAM POWER CONTRACTS; AND DECLARING AN EMERGENCY. WHEREAS the Western Area Power Administration will enter into new contracts for power generated at Hoover Dam in 2017; and WHEREAS Hoover power contracts have provided for the acquisition of power at rates significantly below normal commercial market rates; and WHEREAS the proposed agreement would allow the Town to participate with the Arizona Power Authority in developing confidential legal strategies to assure that Arizona and entities within Arizona that are entitled to receive Hoover power obtain that power under the most favor- able possible terms and to minimize the risk that Hoover power will be reallocated disproportion- ately to other states; and WHEREAS the Mayor and Council of the Town of Marana feel it is in the best interests of the public to execute this agreement. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the Common Interest in Anticipation of Litigation Joint Participation Agreement attached to and incorporated by this reference in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. IT IS FURTHER RESOLVED that the Town's Manager and staffare hereby directed and au- thorized to undertake all other and further tasks required or beneficial to carry out the terms, obliga- tions, and objectives of the intergovernmental agreement. PASSED and ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 16th day of October, 2007. ~? Mayor Ed Honea ATTEST: celyn C ronson, Town Clerk TO FORM: F s~y> (00006430DOC /} ~ FJC: cds 10/2/07 k COMMON INTEREST IN ANTICIPATION OF LITIGATION JOINT PARTICIPATION AGREEMENT This Common Interest In Anticipation Of Litigation Joint Participation Agreement (hereinafter "Agreement") is entered into by and among the undersigned entities (individually "Member", and collectively, "Members" or the "Common Interest Group") as represented by their respective undersigned counsel. This Agreement memorializes certain understandings reached among Members and their counsel with respect to their common interests in connection with the subject matter about which litigation is anticipated. The Members are preparing to participate in a federal process or processes conducted by the Western Area Power Administration- ("Western") leading to contracts for power generated at Hoover Dam pursuant to the Boulder Canyon Project Act, as amended, 43 U.S.C. § 617, et seq. and other applicable federal law for the period beginning October 1, 2017 (the "Hoover Proceedings"). Given the past history of litigation over similar contracts (see State of Nevada, the State of Arizona and its Arizona Power Authority v. United States of America, Civ LV82-441-RDF (D.C. Nev. 1982)), and the high level of interest akeady expressed in the anticipated electric power contracts, the Common Interest Group anticipates that the Hoover Proceedings may result in litigation. The Members through their counsel wish to work cooperatively and to pursue their common interest in developing strategy related to the Hoover Proceedings and anticipated future litigation. The Members believe that sharing of confidential and privileged information and documents among themselves through their attorneys will be mutually beneficial to the Members in the pursuit of their interests and objectives. Serious legal, factual and administrative issues must be addressed in anticipation of an adversarial federal administrative process and associated litigation which prior history demonstrates is likely to occur. The Members have a common interest in the proper resolution of those issues and believe it to be in their interests to coordinate their efforts and the efforts of their respective counsel. The undersigned counsel consider that mutual disclosure among themselves and their respective clients of matters of common concern in this undertaking is essential to the effective representation of their respective clients and, therefore, the Members agree as follows: These understandings which are the subject of this Agreement are to further the Members' common legal interest that the State of Arizona acting through Arizona Power Authority or any successor entity, will receive the maximum available share of Hoover power. Any exchange of information in connection with such-joint efforts is not intended to waive any attorney/client or attorney work product privilege, or other protection from disclosure to third parties which may be otherwise available. Accordingly, it is the intention and understanding of the Members and their counsel that all work product of or communications made between any member of a "client set" and a member of another "client set" see Restatement (Third) of the Law Governing Lawyers §§ 70, 76 cmt. d) relating to the development and implementation of common strategies, whether offensive, defensive, or negotiation-related, including but not limited to information and communication contained in documents, memoranda, correspondence, drafts, notes, reports, factual summaries, transcript digests, communications among counsel, or counsel and clients including their employees, consultants, board members and advisors, any joint or several interview of prospective witnesses, or the sharing or exchange via any media, including but not limited to electronic media, as well as any other material and information which would otherwise be protected from disclosure to third parties are, and will remain, confidential and protected from disclosure to any third party by their clients' respective attorney-client and attorneys' work product privileges ("Privileged Communications"). A "client set" consists of a Member, the Member's agent for communication, the Member's counsel, and the counsel's agent. This Agreement however is not Privileged Communications. All work performed by the undersigned counsel and their respective firms and consultants pursuant to this Agreement and communications among the undersigned counsel and their consultants and/or clients in connection with this undertaking shall be conducted and protected pursuant to the attorney-client privilege and work product doctrine as recognized in Arizona. The Members acknowledge and agree that this Agreement is intended to facilitate the exchange of information and ideas among counsel and employees, assistants and professionals engaged from time to time by any of them, which exchange of information and ideas is deemed essential to the development of a common strategy or strategies, both offensive and defensive or negotiation-related, with respect to the Hoover Proceedings. Any Privileged Communications exchanged by counsel pursuant to this Agreement shall not be used by any Party for purposes unrelated to the Hoover Proceedings. The Members acknowledge and agree that the attorney- client privilege and work product doctrine shall apply to all Privileged Communications. It is intended that all Privileged Communications remain confidential in accordance with the terms of this Agreement, and it is on this basis that all Privileged Communications are made between and among the respective counsel and employees, assistants and professionals engaged by them. The Members and their counsel will make all reasonable efforts to maintain the confidentiality of the Privileged Communications. Each Member agrees to maintain the confidentiality of all Privileged Communications and shall also instruct counsel that none of the Privileged Communications obtained or developed by any of the Members, counsel, employees, assistants and professionals as a result of this Agreement shall be disclosed to third parties without the consent of the undersigned Members and counsel. Modifications of this Agreement can be made if such modifications are in writing and are signed by all of the counsel signatory to this Agreement. Entities who are eligible to receive Hoover power under either Title 30 or Title 45 of the Arizona Revised Statutes and who have a common interest may join the Common Interest Group on or before October 26, 2007. Additional entities who are eligible to receive Hoover power under either Title 30 or Title 45 of the Arizona Revised Statutes and who have a common 2 interest, as well as their counsel may be added to the Common Interest Group as Members of this Agreement subsequent to October 26, 2007 upon execution of this Agreement and with the unanimous written consent of all counsel then signatories to this Agreement and upon execution of an addendum to this Agreement. Additional Members and their counsel executing an addendum to this Agreement agree to and shall be bound by the terms and conditions of the Agreement the same as if they had executed the Agreement initially. Any Member or counsel receiving athird-party request or demand for disclosure of Privileged Communications subject to this Agreement shall report such request forthwith to all signatory counsel and shall utilize all reasonable means. and legal processes to maintain the confidentiality of such communications, including but not limited to opposing any requests for, or motions to compel production of such communications, or, when appropriate, seeking a protective order to prevent disclosure of such communications. Any Member is free to withdraw from this Agreement upon that Member's counsel giving written notice to all other Members and counsel to this Agreement. Withdrawal shall be effective as of the date of the notice. The withdrawing Member or counsel shall no longer be entitled to receive Privileged Communications. Concurrently with such notice, a withdrawing Member or counsel shall return all Privileged Communications and copies thereof. Members and counsel agree that any privilege by which the confidentiality of any materials and copies is protected shall remain in full force and effect during and subsequent to such withdrawal and the withdrawing Member or counsel shall be obligated to protect such privilege. The Members agree that this Agreement shall remain in effect until completion of the Hoover Proceedings or any litigation to final non-appealable judgment or to final negotiated resolution related to such proceedings, whichever is later. All Privileged Communications provided to a Member or counsel shall be returned, if requested by the furnishing Member or Member's counsel, at the conclusion thereof. By signing this Agreement, each of the undersigned counsel certifies that the contents of this Agreement have been explained to each counsel's respective client(s) and that each client becoming a Member by execution of this Agreement agrees to abide by the understandings reflected herein. Nothing contained herein shall be deemed to create anattorney-client relationship or duty of loyalty between any counsel and anyone other than the client of that counsel either expressly or by implication. Each Member executing this Agreement also certifies that it has relied upon the advice of its own counsel, and also knowingly waive(s) any and all claims of conflict of interest that may arise between or among the Members during any administrative proceedings, preparation or participation, trial preparation, conduct of trial, subsequent appeal or negotiations toward settlement. It is explicitly understood that the obligations between counsel and client are not waived by this provision. - This Agreement is effective in its original form as of the date of execution indicated next to the signature of each Member and its counsel below and, as to any additional Member added to the Common Interest Group, as of the date of execution by that new Member and its counsel. This Agreement may be executed in multiple counterparts, each signature being made part of the 3 whole Agreement as if executed as one document. Original, facsimile, and electronic signatures are sufficient and may be employed to execute this Agreement. r ~,:~ ~' ~'~ %G'~,<'~ G~7 Member: T wn o Marana C ~ sel ~ at By: Ed Honea ~''. ,~ F'` Its: Mayor f Member: Counsel Date By: Its: Member: Counsel Date By: Its: Member: Counsel Date By: Its: Member: Counsel Date By: Its: Member: Counsel Date By: Its: A315#100/Final Common Interest Agreement 9 10 07