HomeMy WebLinkAboutBERGER/ABAM Engineers - Joint Defense Agreement (Lincoln Grade Separation)JOINT DEFENSE AGREEMENT
THIS JOINT DEFENSE AGREEMENT ( "Agreement ") is made effective as of March 1, 2011,
by and among BERGER /ARAM Engineers ( "BERGER/ABAM "), Shannon & Wilson, Inc.,
( "Shannon & Wilson ") and the City of Yakima, Washington ( "City ")(collectively, the
"Parties ").
RECITALS
A. The City has retained BERGER /ABAM to provide engineering design services,
preparation of plans, specifications, and estimates, and project administration and construction
support services for a project to separate the grades of Lincoln Avenue and B Street within the
City from tracks belonging to the Burlington Northern Santa Fe. Railway ( "Project ").
BERGER/ABAM has retained Shannon & Wilson to perform certain services in support of
BERGER /ABAM's geotechnical engineering for the Project. There has been threatened, and the
Parties anticipate there may be, legal challenges relating to the Project on any number of grounds
(the "Litigation ").
B. The Parties believe that the Parties have mutual interests in mounting a joint and
cooperative strategy in anticipation and, if necessary, in defense of any Litigation.
C. The Parties wish to avoid duplicative defense efforts, minimize defense costs, and
promote cooperation, and to avoid any suggestion or claim that they have waived any privileges
by doing so.
D. In order to pursue the Parties' separate but common interests, defenses, and claims
effectively, the Parties have concluded that the mutual interests of the Parties will be best served
by: (1) discussing factual material, mental impressions, interviews, and other information
including the confidences of their clients; (2) sharing work product of counsel, including mental
impressions, conclusions, strategics, opinions, legal theories, and written work product; and (3)
sharing privileged or confidential information, including the confidences of their clients, all of
which will hereinafter be referred to as "Joint Defense Information."
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set
forth herein, and other good and valuable consideration, the adequacy of which is hereby
acknowledged, the Parties and their respective attorneys agree as follows:
AGREEMENT
I. The Parties will, at their sole discretion, share Joint Defense Information subject
to the intention and understanding that any Joint Defense Information so shared is protected from
disclosure to any third party by each of the Parties' respective attorney - client privileges, attorney
work product privileges, and other applicable privileges, including the joint defense privilege
that arises from this Agreement.
2. It is further agreed, understood, and intended that this Agreement ensures that the
exchanges and disclosures of Joint Defense Information contemplated herein do not diminish in
any way the confidentiality of the .Joint Defense Information and do not constitute a waiver of
any privilege otherwise available. By disclosing information pursuant to this Agreement, neither
the Parties nor their respective counsel intend to waive or diminish in any way the confidentiality
or privileged nature of such information. Specifically, it is the intent of the Parties and of their
respective counsel that any privilege applicable to such information and disclosure is and shall be
protected and preserved, including, without limitation, the work product, attorney - client, and
joint defense privileges.
3. The Parties agree that all confidential docu vents and information exchanged
subject to this Agreement are protected pursuant to the joint defense doctrine.
4, The Parties agree that, to the extent they or their counsel have already been in
communication or had any discussions with counsel for any of the other Parties about matters
related to the Project or the prospective Litigation, their communications, discussions, and work
product have been and are subject to the joint defense privilege. All such communications,
discussions, and work product are now subject to this Agreement.
5. Except as provided in this Agreement, the Parties will not disclose Joint Defense
Information to any third party without first obtaining the consent of the other Parties to this
Agreement. Joint Defense Information may be shared with a Party's employees and
representatives who have a need to know (including the City Attorney), with legal staff and
attorneys within a Party's counsel's firm (except to the extent prohibited by any other
arrangement, agreement, or ethical principle relating to conflicts of interest), and with any
independent consultants and experts retained by a Party's counsel and assigned any task related
to the Project or the Litigation. Any firm or individual permitted access to Joint Defense
Information shall be specifically advised that any and all such information is privileged and
subject to the terms of this Agreement. Joint Defense Information that is shared may be used
only in connection with the defense of the Litigation and not for any other purpose.
6. If any person or entity requests or demands, by subpoena or otherwise, any .Joint
Defense Information, counsel for the Party receiving the request will immediately notify counsel
for the other Parties, and all counsel will take steps necessary to permit the assertion of all
applicable rights and privileges with respect to Joint Defense Information. The Parties will
cooperate with each other in any proceeding relating to the disclosure of Joint Defense
Information.
7. to the event that any Party wishes to withdraw from this Agreement, counsel for
the Party desiring to withdraw shall notify counsel for the other Parties in writing of the
withdrawal, and this Agreement shall be terminated effective upon the receipt of quell notice,
Such termination shall not affect or impair the obligations of confidentiality with respect to Joint
Defense Information furnished pursuant to this Agreement prior to such termination.
8. This Agreement does not restrain any Party's independent judgment or the ability
of any Party to undertake or to have their counsel undertake any defense strategy that the Party
704772.0006/120 2215.1
deems appropriate. The Parties' counsel will not incur fiduciary duties to each other or to each
other's clients as a result of this Agreement, and this Agreement does not create any agency or
similar relationship between the Parties, though such agency or relationship may exist as the
result of other contractual arrangements or agreements.
9, The Parties knowingly and intelligently waive any claim that any counsel is
disqualified or otherwise precluded, due to his or her participation in this Agreement, from
examining any witness, including employees and consultants of the other Party, at any trial,
arbitration, deposition, or other proceeding related to the Litigation.
10. The Parties agree that all Joint Defense Information received from any other
Party, its counsel, or its consultants or experts retained in connection with the Project or for the
defense of the Litigation, shall be held in strict confidence by the receiving Party and by all
persons to whom such information is revealed by the receiving Party, subject to the City's rights
and responsibilities under the public disclosure laws of the State of Washington.
11. No settlement of any claims related to the Project or the Litigation by any Party
shall override or contravene the protections provided by this Agreement.
12. This Agreement shall continue in effect until it is terminated by one of the Parties
as provided in paragraph 7 above.
13. This Agreement may not be modified, altered, or amended, except pursuant to an
instrument in writing signed by all Parties and their respective counsel.
14. "Phis Agreement shall be construed and interpreted in accordance with, and any
and all disputes shall be governed by, Washington law.
15. At the conclusion of the Project or the Litigation, whichever shall be later, all
materials containing or reflecting confidential Joint Defense Information will be returned to
counsel.for the party that originally disseminated those materials if so requested.
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704772,0006/1 2022 15.1
16. This Agreement may be executed in one or .more counterparts with original or
facsimile signatures, each of which shall be deemed to be an original, and together shall be one
document.
BERGER /ARAM ENGINEERS
By:_
Its:
Dated:
SHANNON & WII.,SON, INC.
By:—
Its:
Dated:
CITY CONTRAC r NO: =Jv z G=��1
RESOLUTION NO:
4
704772.0006/1202215.1
TI ITY OF YAKIMA
Jc�y Cutter,
I3y:
its:
N
Dated:
1
Cit�, Attorney
16. This Agreement may be executed in one or snore counterparts with original or
facsimile signatures, each of which shell be deemed to be an original, and together shall be one
document.
BERGEN ABA VI ENGINEERS
By: - --
Its: �1(:F
Dated: �34 /.-:zoy/ _
SHANNON & WILSON, INC.
By:_
Its:_
Dated:
4
704772.0006/1202215.1
CITY OF YAK.IMA
By:_ _-
Its:
Dated:
Jeftrev R.. Cutter
City Attorney
CITY CONTRAC r NO:
RESOLUTION NO:
r
16. This Agreement may be executed in one or more counterparts with original or
facsimile signatures, each of which shall be deemed to be an original, and together shall be one
document.
BERGERJABAM ENGINEERS
By:
Its:
Dated:
SHANNON & WILSON, INC,
By:� -��
Its:
Dated:
704772.0006/1202215.1
TI, ITY OF YAKIMA
By;
Its:
Dated; '\
Jeffrey R.. Cutter
City Attorney
CITY CONTRAC f NO:-LL.�'
RESOLUTION NO: J