2404339.1 14793.003
1 CONFIDENTIALITY AND COMMON INTEREST AGREEMENT
This Confidentiality and Common Interest Agreement (Agreement), dated as of __, 2023 is hereby entered into by and between the following public entities: City of Santa Rosa, Marin Municipal Water District, North Marin Water District, City of Petaluma, City of Rohnert Park, City of Cotati, Town of Windsor, City of Sonoma, and the Valley of the Moon Water District (sometimes individually referred to as Party, and collectively as Parties).
RECITALS
WHEREAS, the Pacific Gas & Electric Company (PG&E) owns that certain hydroelectric project commonly known as the Potter Valley Project (Potter Valley Project or PVP) by which PG&E for many decades has diverted, and continues to divert, water from the Eel River to generate hydroelectric power before discharging the diverted water into the Russian River Basin pursuant to License No. P-77 issued by the Federal Energy Regulatory Commission (FERC); and
WHEREAS, the Potter Valley Project’s historic and ongoing discharge of certain Eel River water flows into the Russian River Basin physically increases the availability of water to meet various urban, agricultural and ecological water needs in the Russian River Basin; and
WHEREAS, the Sonoma County Water Agency (Sonoma Water) for many decades has diverted, and continues to divert, certain water discharged into the Russian River Basin by PG&E’s Potter Valley Project, consistent with certain water rights owned by Sonoma Water; and
WHEREAS, Sonoma Water uses its Russian River diversions to supply water deliveries pursuant to the 2006 Restructured Agreement for Water Supply (Restructured Agreement) and certain other supplemental water supply contracts; and WHEREAS, the Parties have either signed the Restructured Agreement or a supplemental water supply contract with Sonoma Water, and they significantly rely on Sonoma Water’s deliveries of water under these agreements to provide public water service to families, farms, workplaces, schools and other uses within the Parties’ 2404339.1 14793.003
2 respective service areas; and
WHEREAS, PG&E has elected not to renew its FERC license for the PVP and instead seeks FERC’s approval to surrender the license and to decommission the Potter Valley Project; and
WHEREAS, PG&E is preparing a PVP decommissioning plan for public review prior to formally filing a proposed plan with FERC, which plan may include removal of certain Potter Valley Project facilities, including Scott Dam, Cape Horn Dam and facilities that currently facilitate water diversions from the Eel River to the Russian River Basin and which are expected to have an impact on the water diversions from the Eel River to the Russian River Basin; and
WHEREAS, the Parties anticipate that in connection with the proposed decommissioning plan to be filed with FERC by PG&E administrative and court litigation will be filed by one or more interests to challenge FERC's final decision in the decommissioning proceedings and that in addition to these challenges, other legal challenges are likely to follow, including, but not limited to, administrative proceedings and court litigation pertaining to continued PVP diversions, if any are anticipated in the proposed decommissioning plan, as well as the impacts of discontinued diversions from the PVP on Sonoma Water given potentially competing interests in the upper Russian River Basin and the Eel River; and
WHEREAS, the Parties share a common interest in assuring Sonoma Water continues to meet its contractual obligations to the Parties regardless of PVP diversions and other upper Russian River Basin water users; and
WHEREAS, each Party’s counsel recommends that the Parties cooperate in analyzing and discussing potential outcomes, risks, and options for responding to PG&E’s decommissioning proceedings for the PVP and any resulting administrative or judicial litigation, as well as certain legal issues relating to the priority of Sonoma Water’s rights to divert Russian River water relative to other water right holders (not the Parties) if PVP diversions from the Eel River are reduced or entirely curtailed; and WHEREAS, the Parties’ pursuit of effective cooperation is anticipated to require the sharing of sensitive information that is protected by the attorney-client privilege, the work-product doctrine, the deliberative process privilege, the official information privilege, or other applicable privileges or protections against forced disclosure; and WHEREAS, the Parties therefore wish to set forth in this Agreement the terms 2404339.1 14793.003
3 and parameters by which they may preserve the confidentiality and privileges applicable to information and materials the Parties find it necessary to share in furtherance of their common interest in maximizing the water supply available to Sonoma Water for use in making contract water deliveries to the Parties.
TERMS OF AGREEMENT
THEREFORE, the Parties agree as follows:
1. The preceding recitals to this Agreement are hereby incorporated into and made a part of this Agreement.
2. The purpose of this Agreement is to memorialize the Parties’ intentions concerning the exchange of information among them in their investigation and advocacy on issues relating to potential outcomes, risks, and options for responding to PG&E’s decommissioning proceedings for the PVP and any resulting litigation, as well as certain legal issues relating to the priority of Sonoma Water’s rights to divert Russian River water relative to other water right holders (not the Parties) if PVP diversions from the Eel River are reduced or entirely curtailed, and to support a joint defense, joint prosecution, and/or common-interest-based assertion by the Parties, or any Party, of the attorney-client privilege, work product doctrine, deliberative process and official information privileges, and any other privileges and protections that may apply to any Confidential Information (as defined by Section 3 below) that might be shared among the Parties to this Agreement pertaining to the subject matter set forth in the Recitals. This Agreement addresses the exchange, handling, security, and disclosure of documents, data, and oral and written information that are not required to be produced in response to discovery requests or California Public Records Act (CPRA) requests, and that may be shared by the Parties to this Agreement. The Parties intend that the exchange of Common Interest Communications among Parties to any Party or Parties will not constitute a waiver of any privilege or protection, including without limitation the attorney-client privilege, the attorney work product doctrine, and the deliberative process and official information privileges. The Parties agree that any consultation between or among the Parties or their counsel, and any exchange of work product or other Confidential Communications are in reliance on the Parties’ common interests, as described herein, and their intent to share information and to cooperate in these efforts without waiving any privilege or protection. In that regard, the Parties have agreed to provide reasonable cooperation in the execution of their respective duties under this Agreement. However, no obligation to share any documents, data or information is 2404339.1 14793.003
4 created by this Agreement.
3. For purposes of this Agreement, "Confidential Information" means any documents, data, or information (including correspondence, reports, studies, memoranda of law and/or fact, factual material and summaries, mental impressions, transcripts, digests, and any other written material or oral information of any kind whatsoever) that relate to matters addressed by this Agreement that any Party receives from any other Party or its officers, partners, employees, agents, consultants, attorneys, representatives, or exports that would otherwise be protected from disclosure to third parties pursuant to applicable legal and evidentiary privileges, including the attorney-client privilege, work product doctrine, the deliberative process and official information privileges, and exemptions from disclosure under the California Public Records Act (Government Code sections 6250 et seq.). Confidential Information may also include, but is not limited to, financial, appraisal, statistical, personal, engineering, technical, and other data and information or to legal claims and disputes arising therefrom. Such information may be generated by a Party or provided to a Party by non-employee agents of the respective Parties, including consultants and legal counsel.
4. The Parties agree that any Confidential Information they elect to share with any other Party pursuant to this Agreement will only be shared because it is necessary to further their common interests. The Parties hereby affirm that disclosure of Confidential Information among the Partiessubject to this Agreement is essential to effective representation of the Parties by their respective counsel, collectively and individually, on matters of common interest described in the Recitals above, and that the Parties intend that the common interest doctrine govern the communication of Confidential Information and materials under this Agreement. In this regard, the shared Confidential Information is intended to advance the Parties’ shared interest in securing legal advice on the common matter related to their efforts to prosecute or defend against claims and/or defenses raised in any legal, judicial, regulatory, administrative, or legislative action or activity.
5. Confidential Information may be disclosed or transferred between any or all of the Parties orally or in writing and by any other appropriate means of communication.
The Parties agree that all Confidential Information shared pursuant to this Agreement shall be held in strict confidence by the Parties and by all persons to whom the Confidential Information is disclosed and shall not be disseminated to anyone or any entity beyond such Parties. The Parties agree that all persons permitted access to any 2404339.1 14793.003
5 Confidential Information shall be specifically advised that the Party to which they are attached is bound by the terms of this Agreement, that the Confidential Information is privileged, confidential, and subject to the terms of this Agreement, and that they must agree to be bound by the terms of this Agreement as a condition to receiving Confidential Information. If Confidential Information is intended by the disclosing Party to be disclosed or transferred only to one or more specific Parties to this Agreement, the disclosing Party shall specify the Parties who are entitled to review or receive this Confidential Information. All Parties agree that they will not share or disclose such Confidential Information to any Party or person who is not designated by the disclosing Party.
6. All Confidential Information that is privileged or protected as to any of the Parties, their counsel, employees, agents or consultants, will remain privileged and protected notwithstanding the communication of such Confidential Information or communicationsto and among the Parties, and their counsel, employees, agents and consultants in accordance with California Evidence Code section 912(d), as recognized by the "common interest doctrine" described in Raytheon Co. v. Superior Court (1989) 208 Cal.App.3d 683, and the cases decided thereafter, which allow entities to share privileged communications without waiving a statutory privilege, when certain conditions are fulfilled.
7. The Parties shall take all necessary measures to protect Confidential Information and, consistent with provisions of the CPRA, California’s Discovery Act, and any other laws requiring disclosure, treat any shared Confidential Information as confidential. The Parties shall impose all the requirements of this Agreement on all of their respective officers, members, employees and agents with access to Confidential Information. Furthermore, any Confidential Information obtained by the Parties shall only be usedfor purposes which are consistent with existing law. As provided in Government Code section 6254.5, any exchange of Confidential Information among the Parties for the purpose of advancing the common interest described herein shall not constitute a "waiver" of any exemption provided under the California Public Records Act.
8. The Parties shall ensure that all media, including electronic media, containing Confidential Information to which the Parties, and any of their officers, employees, and agents, whom are given access, are protected at the level of the most confidential or sensitive piece of data on the media. Any Party shall notify all other Parties promptly if a security breach involving Confidential Information occurs.
2404339.1 14793.003
6 9. The Parties agree to notify one another promptly of any requests or demands by subpoena, discovery request, the California Public Records Act, or otherwise, for disclosure of any Confidential Information. If the Parties are legally compelled to disclose any Confidential Information to any outside party, the following procedures shall be followed:
a. The Party that received the request or demand shall notify the other Parties and initially determine whether the requested or demanded Confidential Information may be protected pursuant to law. b. Any Party to this Agreement shall have the right to seek a protective order that may be based upon a privilege that another Party that received the request or demand might hold.
c. If such an order is sought, the Party that received the request or demand will refrain, to the extent provided by law, from disclosing the requested or demanded Confidential Information until such time as a final disclosure agreement or judicial determination is made concerning the request or demand. The costs and expenses for seeking a protective order, including any attorney's fees, shall only be borne by the Party opposing the request or demand.
10. Nothing in this Agreement shall constitute or is intended to be a waiver of any attorney client privilege, work product privilege, deliberative process or official information privilege, or any other privilege, exemption, or immunity, including protections or requirements imposed by or available under any applicable law. All documents and other information comprising Confidential Information hereunder shall remain subject to the applicable privileges and will be kept confidential by the Parties.
11. Any written Confidential information that is shared or exchanged will be clearly marked "Confidential Common-interest Communication," "Confidential-Attorney Client Privileged Communication,” and/or “Attorney Work Product Privileged," or by other markings asserting any applicable protection or privilege, except that inadvertent failure to mark any written or electronic Confidential Information shall not be deemed a waiver of any applicable privilege.
12. Any Party who receives Confidential Information shall not disclose such 2404339.1 14793.003
7 Confidential Information or the information imparted thereby to any third party without the express prior written consent of the other Parties. Where a Joint Defense Communication was disclosed or transferred only to one or certain Parties to this Agreement, the receiving Party or Parties shall not disclose such Confidential Information or the information imparted thereby to any other Party or any third party without the express prior written consent of the disclosing or transferring Party or Parties. Any unauthorized disclosure of any Confidential Information to any unauthorized Party or to any third party shall not constitute a waiver of any applicable privilege or protection. However, no provision in this Agreement shall be construed to limit the right of any Party to disclose any documents or information that such Party obtained through means other than the sharing of Confidential Information pursuant to this Agreement.
13. Unless required by law, this Agreement will not be disclosed or used as evidence for any purpose, including, but not limited to, evidence in support of or opposition to a motion to compel the production of evidence, unless it is offered to support the privileges the Parties intend to be preserved under this Agreement.
14. The restrictions of this Agreement on the use and disclosure of Confidential Information shall not apply to information that:
a. Is or becomes publicly known or available by actions not in violation of this Agreement.
b. Is required to be disclosed pursuant to any applicable statute, law, rule or order of any governmental authority of competent jurisdiction or pursuant to any order of any court of competent jurisdiction. In cases where there is a question as to whether Confidential Information consists of privileged documents or communications not subject to disclosure, or whether it constitutes a public record or is exempt from disclosure under the CPRA, the Party considering the disclosure of such documents or information shall comply with Section 9 of this Agreement.
15. The Parties agree that this Agreement may only be amended in writing.
16. The Parties agree that if a consultant or expert is jointly hired by the Parties or is retained by an individual Party for a matter on which a common interest exists with 2404339.1 14793.003
8 respect to the adverse claims, that consultant or expert is covered by the joint defense and/or common interest doctrines and that privileges or protections applicable to the consultant or expert’s work product or to any Party’s communications with the consultant or expert shall not be waived by sharing such work product or communications with other Parties to this Agreement.
17. Nothing in this Agreement shall be construed to restrict the right of a Party to undertake separate investigative efforts or legal research in connection with the PVP decommissioning proceeding, and the anticipated administrative or judicial litigation. Any Party undertaking such separate efforts shall be free to disclose or use the results of the separate and independent efforts in any manner that Party desires, without the consent of the Parties or any other Party.
18. Each Party agrees that the confidentiality obligations set forth herein apply to Confidential Information shared among the Parties upon and subsequent to this Agreement's formal execution, as well as to Confidential Information that may have been communicated between and/or among the Parties and their legal counsel prior to the formal execution of the Agreement and thus, to that extent, this Agreement is intended to continue the prior understanding of the Parties regarding the confidentiality of such materials and information.
19. Each Party agrees that the confidentiality obligations set forth herein shall survive the termination of this Agreement. If a Party withdraws from this Agreement, the provisions of this Agreement shall continue to apply to the Confidential Information that was shared with the withdrawing party prior to the formal execution of this Agreement as well as to the Confidential Information shared during the time period when that Party was a party to this Agreement. In addition, if this Agreement is terminated for any reason, each Party shall be obligated to continue to protect the confidentiality of Confidential Information in its possession or knowledge as of the date of termination of the Agreement as provided by law.
20. The Parties acknowledge that any other common interest, joint defense or confidentiality agreements which may exist between the Parties shall remain in effect. This Agreement shall not supersede or amend any other such agreement and shall not prohibit any Party from entering into any common interest, joint defense or confidentiality agreement with any Party or non-Party to this Agreement; provided that any such new agreement shall have no effect on the rights and obligations of the Parties pursuant to this Agreement.
21. Nothing in this Agreement shall be construed to (a) create an attorney-client 2404339.1 14793.003
9 relationship between any Party and/or counsel to any other Party; (b) create any agency relationship among the Parties and/or their counsel, including a joint venture or partnership; or (c) affect the separate and independent representation of each Party by its respective counsel according to what each such counsel believes to be in the client’s best interests. Each Party is responsible for directing its respective counsel and, to the extent the research or work product of any Party’s counsel is disclosed to other Parties in furtherance of the Parties’ common interest, such disclosure shall not waive any privileges or protections that apply to the work product, and shall not entitle any Party to move to disqualify the other Party’s counsel due to the performance of such work or because of information obtained in the course of such work.
22. Except by separate agreement, and subject to Section 9 of this Agreement, each Party shall be responsible for its own attorney’s fees related to this Agreement, any actions required under this Agreement, or in any administrative or judicial litigation contemplated by this Agreement.
23. Any dispute or proceeding to interpret or enforce this Agreement will be brought in a court of competent jurisdiction in Sonoma or Marin County, California, under California law. Any costs associated with such dispute or proceeding shall be borne separately by the Parties.
24. The Parties agree that this Agreement was jointly drafted by each Party, and no inference or rule of construction shall be applied based on the assumption that any individual Party drafted any provision in this Agreement.
25. This Agreement may be executed and delivered in any number of counterparts, each of which when executed and delivered shall be deemed to be an original, but such counterparts together shall constitute one and the same document. The Parties agree that an electronic signature shall be effective and binding as an original signature.
26. The undersigned individuals represent that they are authorized to execute this Agreement on behalf of their respective Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date last written below.
2404365.1 14793.003 10
SIGNATURE PAGE
Common Interest Agreement
MARIN MUNICIPAL WATER DISTRICT
By: ____________________________
Name: _________________________
Title: __________________________
Dated: ____________________________
CITY OF SANTA ROSA
By: ____________________________
Name: _________________________
Title: __________________________
Dated: ____________________________
ROHNERT PARK
By: ____________________________
Name: _________________________
Title: __________________________
Dated: ____________________________
PETALUMA
By: ____________________________
Name: _________________________
Title: __________________________
Dated: ____________________________
SONOMA
By: ____________________________
Name: _________________________
Title: __________________________
Dated: ____________________________
COTATI
By: ____________________________
Name: _________________________
Title: __________________________
Dated: ____________________________
TOWN OF WINDSOR
By: ____________________________
Name: _________________________
Title: __________________________
Dated: ____________________________
NORTH MARIN WATER DISTRICT
By: ____________________________
Name: _________________________
Title: __________________________
Dated: ____________________________
VALLEY OF THE MOON WATER DISTRICT
By: ____________________________
Name: _________________________
Title: __________________________
Dated: ____________________________