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HomeMy WebLinkAbout18-044 - Cascade Water Alliance/Joint Municipalities - Common Interest and Confidentiality Agreement18-044 Council Approval N/A COMMON INTEREST AND CONFIDENTIALITY AGREEMENT This Common Interest and Confidentiality Agreement ("Agreement") is dated for reference purposes March 15, 2018 and is made by and among Cascade Water Alliance ("Cascade"), the City of Bellevue ("Bellevue"), the City of Kirkland ("Kirkland"), the City of Issaquah ("Issaquah"), the City of Redmond ("Redmond"), Sammamish Plateau Water and Sewer District ("Sammamish Plateau"), Skyway Water & Sewer District ("Skyway"), and the City of Tukwila ("Tukwila"), each a Washington municipal corporation, (collectively, the "Parties," and individually a "Party"). RECITALS A. The Cascade Water Alliance ("Cascade") is a municipal corporation comprised of seven Members: the five cities of Bellevue, Issaquah, Kirkland, Redmond, and Tukwila, and the two water -sewer districts of Sammamish Plateau and Skyway. These cities and districts formed Cascade under the authority of Chapter 39.106 RCW for the purpose of establishing a regional approach to providing a safe, clean, and reliable water supply to over 350,000 residents and 26,000 businesses. Cascade is governed by a board of directors consisting of representatives appointed from each Member's governing body. B. Under the Cascade Water Alliance Joint Municipal Utilities Services Agreement entered into among the Cascade Members in 2012, Cascade's Purposes are to: 1) Provide a safe, reliable and high quality drinking water supply to meet the current and projected demands of Cascade Members, and for non - Members as determined by Cascade, and to carry out this task in a coordinated, cost-effective, and environmentally sensitive manner; 2) Develop, contract for, manage, acquire, own, maintain and operate Water Supply Assets, including without limitation, surface water supplies, groundwater supplies, reclaimed water supplies, and other water supply resources as determined by the Board; 3) Purchase and provide water supply, transmission services, treatment facilities and other related services; 4) Provide conservation programs to promote the wise and efficient use of resources, Cascade Water Alliance Members Common Interest and Confidentiality Agreement Page 1 5) Carry out emergency water supply and shortage management programs for its Members when demands exceed available supply; 6) Coordinate and plan cooperatively with other regional or local water utilities and other entities to maximize supply availability and to minimize system costs; 7) Develop a Water Supply Plan addressing the needs of Cascade and its Members and Cascade itself and develop a regional water supply plan with other water providers as Cascade may find convenient or necessary to meet regional, state and federal planning requirements, and to take a leadership role in developing and coordinating those supply plans; 8) Share costs and risks among Members commensurate with benefits received; and 9) Carry out, or to further other water supply purposes that the Members determine, consistent with the provisions of this Agreement. C. Cascade's water supply plan, called the Transmission and Supply Plan ("TSP"), was adopted in July 2012..The TSP supplements information on regional supplies provided by each Member in their respective individual water system plans. The TSP describes Cascade's current water supplies and operations and also its plans for development of additional water supplies to meet the needs of Cascade Members through 2060. Cascade has wholesale water purchase contracts with Seattle Public Utilities ("SPU") and Tacoma Public Utilities ("TPU"). Cascade's current water supplies are from SPU and Members' Independent Supply. Cascade will be able to meet the projected 2040 demands of its Members utilizing Member Independent Supply and purchased water. After 2040, Cascade's White River - Lake Tapps Reservoir Project (described in E. below), which requires construction of a treatment facility and additional transmission pipelines, will allow Cascade to meet projected demands beyond 2060. D. Cascade's regional water service area coincides with the individual retail service areas of its Members. Individual Members are Cascade's source of quality assurance. Each Member owns, operates and maintains its own water distribution systems, including water treatment for their independent water sources (five members have their own Independent Supplies), maintenance of water quality within their reservoirs and distribution systems; and Local monitoring of water quality conditions (some monitoring is shared with SPU or other water systems). As of the date of this Agreement set forth above, the Cascade -owned facilities for delivery of municipal water supplies consist solely of the Bellevue -Issaquah Pipeline which Cascade Water Alliance Members Common Interest and Confidentiality Agreement Page 2 provides transmission of water purchased from SPU, through Bellevue to Issaquah and Sammamish Plateau. In addition, there are instances where Cascade -supplied water is wheeled through one Member's system to a delivery point of another Member's system. E. In 2009, Cascade purchased the White River — Lake Tapps Reservoir Project ("Project") from Puget Sound Energy ("PSE"), including water rights, the lake bed of the Reservoir, the surrounding shoreline up to a specified elevation ("the 545 -foot contour line"), the dikes that form the Reservoir, and PSE's former hydro -electric generation infrastructure. The Project is a major component of Cascade's long-term water supply system: the objective of the system is to allow Cascade to provide — in a coordinated, cost-effective, and environmentally responsible manner — a safe, reliable, high quality municipal water supply that will meet the current and projected demands of the Members and the Central Puget Sound region from a source that is sufficiently large, certain, and non -speculative, and is available both for immediate, short-term use, and for long-term use over a 50- to 100 -year planning period. Currently, about 1,500 homes and several parks and homeowner association facilities surround the Reservoir. The Reservoir is used for recreation and the Project is operated as part of the flow regime that allows for the restoration of the White River fishery. Those uses will continue during the future use of the Project for municipal water supply. F. The Parties find that regional wastewater treatment matters are increasingly intersecting with and affecting water supply planning, water system service areas (both retail and wholesale), customer demand, and rates, revenues, and financial matters. Such relevant wastewater matters include, but are not limited to, Member contracts for regional wastewater collection and treatment, wastewater treatment and discharge permits, reclaimed water permits and planning, state law and regulation applicable to reclaimed water, impacts on ground water sources of drinking water (current and future), updating water system plans to address reclaimed water, local law and policy regarding reclaimed water, wastewater treatment and disposal alternatives, and long-range planning. G. The Parties have common interests in collaborating on matters related to Cascade's Purposes including but not limited to: development and implementation of the TSP and the Members' individual water system plans, including with respect to reclaimed water; the implementation of wholesale purchase contracts with SPU and TPU, including with respect to reclaimed water; and the maintenance and protection of Members' Independent Supply, including ground water sources and reclaimed water. Given the inter-connectedness'among the Cascade Water Alliance Members Common Interest and Confidentiality Agreement Page 3 Parties' water system plans and common source of wholesale water, on the one hand, and the terms and conditions of wastewater conveyance and treatment contracts and reclaimed water plans, permits, and authorities, on the other hand, the Parties have common interests in legal issues that may arise related to such matters (collectively, the "Common Interests"). H. To advance the Common Interests, the Parties desire, among other things, to have the ability to share in confidence otherwise privileged communications, information, and documents regarding the Common Interests (including, without limitation, communications, information, public records exempt from public disclosure, and documents protected by the attorney-client privilege, the work product doctrine, or a self-critical analysis privilege as may be recognized in Washington State) without the prospect or possibility of waiving any such privilege or exemption, or allowing disclosure of such information to third parties. AGREEMENT In consideration of the foregoing recitals, incorporated herein, and mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Each Party may, but is not obligated to, share with the other Parties otherwise privileged communication, information, public records exempt from public disclosure, and documents regarding the Common Interests (including, without limitation, communications, information, and documents exempt from public disclosure or protected by the attorney-client privilege, work product doctrine, or self-critical analysis privilege). For purposes of this Agreement, these communications, information, records, and documents shall be referred to as "Common Interest Material." All Common Interest Material that is shared by a Party with the other Parties and that qualifies for a joint -defense, common -interest, or similar privilege (to the fullest extent such qualification is permitted under law) shall be deemed Common Interest Material subject to this Agreement, regardless of whether such communications assert any common interest privilege or protection on their face. Facts, communications, information, records, and documents not otherwise privileged from disclosure shall not gain any privilege simply because such facts and other information are shared between and among the Parties. 2. "Party" shall include the various departments, officials, employees, attorneys, consultants, contractors, representatives, and other agents of each Party. Cascade Water Alliance Members Common Interest and Confidentiality Agreement Page 4 3. The term "Common Interest Material" shall not include any communications, information, records, or documents that are or become generally available to the public (other than as a result of a breach of this Agreement). 4. Unless stated in writing to the contrary, any and all Common Interest Material obtained by any Party: (a) shall be used solely to advance the Common Interests; (b) shall not be disclosed to any third party; (c) shall only be disclosed to persons within the receiving Party who have a bona fide need to know such information to advance the Common Interests; (d) shall be deemed to have been disclosed subject to the joint -defense, common -interest, or similar privilege; and (e) shall remain subject to any underlying attorney-client privilege, attorney work product doctrine, exemption, or any other applicable privileges or productions from disclosure. 5. Each Party agrees that irreparable damage will result from any breach of this Agreement and that the non -breaching Party(s) will have no adequate remedy at law to redress such a breach. Therefore, the Parties agree that the non -breaching Party(s) shall be entitled to specific performance and injunctive relief. Each Party further agrees that remedies for breach of this Agreement shall be limited to such specific performance and injunctive relief and will not include any monetary damages of any kind. 6. Common Interest Material shall remain confidential and exempt from public disclosure and shall not be disclosed to a third party except in one of the following two circumstances: a. A Party ("Requested Party") that is asked by a third party to disclose Common Interest Material may disclose that Common Interest Material with the consent of the attorneys for the other Parties. A Party's decision on such disclosure shall be in the sole discretion of each Party. b. If a Party receives a request for Common Interest Material pursuant to the Washington Public Records Act (RCW Ch. 42.56), a subpoena, or some similar process, the Requested Party shall promptly give notice of such request to the other Party(s) and consult as to whether the requested information is subject to disclosure. Thereafter, the Requested Party will promptly inform the other Parties as to whether the Requested Party intends to disclose the requested information pursuant to authority that may be provided by law.. If the Requested Party intends Cascade Water Alliance Members Common Interest and Confidentiality Agreement Page 5 to disclose the requested information, the Requested Party shall not disclose the requested information to allow the other Parties at least fourteen (14) calendar days from receiving notice of such determination to take whatever action the other Party deems necessary to protect its interests. The time allowed to the other Parties may be less than fourteen (14) days if the legal process associated with the request for the Common Interest Material does not provide that amount of time to respond. In such case, the Requested Party will seek to allow the other Parties a reasonable time to respond under the circumstances. A Requested Party releasing Common Interest Material shall not be in breach of the Agreement if the Requested Party follows the procedures in this subsection and discloses the information pursuant to: (i) state or federal statute, administrative regulation, or case law designating particular information as subject to public access or disclosure; or (ii) an order of a court of competent jurisdiction or administrative officer with authority to order release of the information. 7. Any disclosure, inadvertent or otherwise, by a Party of Common Interest Material will not constitute a waiver of any privilege or exemption associated with such information or communications held by the other Parties. Any settlement or other resolution of litigation related to the Common Interests as to any one Party shall not relieve that Party from its obligations under this Agreement. 8. Any Party may withdraw from this Agreement at any time by providing written notice of such withdrawal. This Agreement will be terminated as to the withdrawing Party upon receipt of that notice by the other Parties or upon such date as the notice shall provide. Following the withdrawal of a Party to this Agreement pursuant to this Section, this Agreement shall no longer be operative as to subsequent communications involving that Party, but shall remain in effect as to the other Parties and shall continue to protect all communications and information covered by this Agreement disclosed to or by the withdrawing Party before this Agreement's termination. 9. Nothing in this Agreement shall obligate any Party to share any Common Interest Material or any independently -obtained or independently -created materials with the other Parties. Nothing in this Agreement creates a joint venture or renders any Party an instrumentality of the other Parties. Cascade Water Alliance Members Common Interest and Confidentiality Agreement Page 6 10. No provision of this Agreement shall be construed to defeat the attorney-client or other applicable privilege between any of the Parties and their or its respective counsel, and no provision of this Agreement shall be construed to create an attorney-client relationship between any of the Parties and the counsel for any of the other Parties. 11. In entering into this Agreement, the Parties maintain that they have a mutuality of interest in Cascade's Purposes and a possible joint strategy in defending the Common Interests. 12. All notices required or permitted to be given hereunder shall be made in writing and shall be personally delivered via messenger to the offices of the following persons, and shall be deemed to have been given, made, and received when delivered: Cascade Water Terese (T.C.) Richmond Adam Gravley Alliance Van Ness Feldman LLP Van Ness Feldman LLP 719 Second Avenue, Suite 1150, 719 Second Avenue, Suite 1150, Seattle, Washington 98104-1728 Seattle, Washington 98104-1728 ter@vnf.com, (206) 802-3839 awg@vnf.com, (206) 802-3830 City of Bellevue Catherine A Drews, Assistant City Attorney City of Bellevue P.O. Box 90012, Bellevue, WA 98009-9012 CDrews@bellevuewa.gov bellevuewa.gov (425) 452-6134 City of Kirkland Kevin Raymond, City Attorney City of Kirkland 123 5th Ave, Kirkland, WA 98033-6189 kmraymond@comcast.net; KRaymond@kirklandwa.gov (206) 351-5717 City of Issaquah James Haney Ogden Murphy Wallace, P.L.L.C. 901 5th Ave Ste 3500, Seattle; WA 98164-2008 jhaney@omwlaw.com, (206) 447-7000 Cascade Water Alliance Members Common Interest and Confidentiality Agreement Page 7 City of Redmond James Haney Ogden Murphy Wallace, P.L.L.C. 901 5th Ave Ste 3500, Seattle, WA 98164-2008 jhaney@omwlaw.com, (206) 447-7000 Sammamish John W. Milne Water and Sewer Inslee Best Doezie & Ryder, P.S. District 10900 NE 4th Street, Suite 1500, Bellevue, WA 98009 jmilne@insleebest.com, (425) 450-4237 Skyway Water John W. Milne and Sewer District Inslee Best Doezie & Ryder, P.S. 10900 NE 4th Street, Suite 1500, Bellevue, WA 98009 jmilneninsleebest.com, (425) 450-4237 City of Tukwila Rachel Turpin, City Attorney Kenyon Disend, PLLC 11 Front St S, Issaquah, WA 98027-3820 rachel@kenyondisend.com, (206) 433-7199, (425) 392-7090, 13. This Agreement memorializes the understanding and practice to date of the Parties with respect to the Common Interests. This Agreement applies to all Common Interest Material shared between the Parties (including, without limitation, their counsel) prior to the date of this Agreement. 14. This Agreement is limited to the Common Interests defined by this Agreement. 15. This Agreement may be executed in any number of counterparts, each of which when executed shall be deemed to be an original, and all such counterparts taken together shall constitute one and the same Agreement. 16. If any portion of this Agreement is found to be unenforceable by a court of component jurisdiction, the remaining terms and provisions unaffected thereby will remain in full force and effect. Cascade Water Alliance Members Common Interest and Confidentiality Agreement Page 8 17. This Agreement is governed by the laws of the State of Washington, and the venue for any actions hereunder shall be the King County Superior Court. 18. This Agreement may not be amended or modified, and none of its provisions may be waived, without the written consent of the Parties. 19. The individual signing this Agreement on behalf of each Party warrants that he or she has the authority to sign the Agreement and thereby bind that Party. CASCADE WATER ALLIANCE CITY OF REDMOND By: By: Its: Its: CITY OF BELLEVUE SAMMAMISH WATER AND SEWER DISTRICT By: Its: By: Its: CITY OF KIRKLAND SKYWAY WATER & SEWER DISTRICT By: Its: By: Its: CITY OF ISSAQUAH CI OF TU WILA By: By: Its: Its: 85527v3 Cascade Water Alliance Members Common Interest and Confidentiality Agreement Page 9