Loading...
HomeMy WebLinkAbout26-109.00 Spokane County Common Interest Joint Defense Agreement CosAtro..ck- 14. z6_`Qq COMMON INTEREST AGREEMENT City of Spokane Valley and Spokane County This Common Interest Agreement ("Agreement") is entered into by and between the following parties: City of Spokane Valley ("Valley") and its attorney Kelly Konkright, and Spokane County ("County") and its statutory attorney, Prosecuting Attorney Preston U. McCollam, by and through Matthew Folsom. These parties are collectively referred to herein as the "Parties." RECITALS WHEREAS, the County developed and constructed the Spokane County Regional Water Reclamation Facility ("SCRWRF") within the City of Spokane ("Spokane") to treat wastewater delivered from the County's transmission lines serving thousands of properties throughout the Valley, City of Liberty Lake, City of Millwood, and unincorporated County, but only serving approximately 30 properties in Spokane; and WHEREAS, the Spokane City Council adopted Spokane Municipal Code 8.10.030(A)(4) imposing a utility tax(20%through 2023, and 21%from January 1, 2024, to present) (the "utility tax") on the gross income of entities who operate "a public wastewater collection and treatment system" within Spokane. The City of Spokane has stated that it believes the utility tax applies to the SCRWRF for all amounts received, including amounts received from residential and commercial ratepayers in the Valley and other municipalities throughout Spokane County outside of the City of Spokane; and WHEREAS, since at least 2020, the City of Spokane has made attempts to collect the utility tax from the SCRWRF, and the Parties have worked together to contest such collection through various means; and WHEREAS,on May 13, 2025,the Chief Finance Officer for Spokane,Matt Boston, delivered a letter to the County claiming that the County owes Spokane $34,140,620 in unpaid wastewater utility taxes, plus an additional $23,282,982.84 in penalties and interest, for a total alleged past due amount of$57,423,602.84; and WHEREAS, the County's costs to maintain and operate the SCRWRF will increase if the County acquiesces to Spokane levying the utility tax against the County, which could foreseeably result in the County raising the rates it charges those using the wastewater utility, including Valley residents and businesses; and WHEREAS, the Parties contest the validity and enforcement of the sewer utility tax that Spokane is attempting to levy against the County, and therefore have common interests related thereto; and WHEREAS, the Parties have certain substantially similar interests and recognize that certain mutually beneficial activities may be undertaken to challenge the legality of Spokane's attempt to levy a utility tax against the County for services it provides to taxpayers outside of Spokane,and/or investigate and implement alternative strategies to avoid, neutralize, or otherwise mitigate the Common Interest Agreement Page 2 impact of the sewer utility tax, including but not limited to seeking legislative amendments ("Covered Matters"); and WHEREAS, the Parties, may, for the purpose of pursuing the Covered Matters, engage in communications or elect to share or transmit to each other otherwise privileged or confidential communications, information, documents, impressions, investigative information, memoranda, interview reports, expert reports, or other types of common confidential or protected material and work product("Covered Materials") related to their Covered Matters; and WHEREAS, the Parties desire that such Covered Materials shall remain privileged and confidential or otherwise protected from disclosure except as otherwise provided by law; and WHEREAS, the Parties agree that the execution of this Agreement is made in good faith for the purpose of promoting cooperation and limiting unnecessarily duplicative administrative and legal costs within their pursuit of the Covered Matters. AGREEMENT NOW, THEREFORE, in consideration of the agreements and obligations listed below, the Parties, by and through their authorized representatives, hereby agree as follows: 1. CONFIDENTIALITY AND USE OF INFORMATION a. The Parties agree that the existence and terms of this Agreement shall be kept confidential, except that the Agreement and its terms may be disclosed in any action to enforce the Agreement, or as otherwise may be required by administrative or court order or other applicable law.Nothing in this Agreement shall be construed as requiring any party hereto to disregard or otherwise violate any disclosure obligation under applicable state or federal law, including without limitation the Public Records Act, chapter 42.56 RCW. b. The Parties recognize and agree that Covered Materials voluntarily exchanged among the Parties are covered by the "Common Interest Doctrine." All Covered Materials previously exchanged among the Parties are subject to the provisions of this Agreement. c. It was and is the mutual understanding of the Parties that the exchanges and disclosures referred to in this Agreement are not intended to diminish in any way the confidentiality of such Covered Materials,and any exchange of Covered Materials is not intended and will not be deemed to constitute a waiver of any available privilege or right. All communications relating to the furtherance of the common interest of the Covered Matters, or made in connection with Covered Materials and among any of the signatories of this Agreement, are confidential, and no privilege shall be deemed to be waived with respect to, or as a result of, such communications. d. Covered Materials disclosed by one Party to any other Party shall be deemed and kept confidential but may be shared with and among the Parties and may be used by the disclosing party as it sees fit. Covered Materials will not be shown or produced by a receiving Party to anyone not a Party except as otherwise provided herein. Such Covered Materials may be disclosed by the receiving party only: (1) with the consent of the disclosing Party in furtherance of the receiving Party's pursuit of interests within the Covered Matters, or (2) if required by administrative or Common Interest Agreement Page 3 judicial order. Disclosure may only be made pursuant to all applicable terms herein, including but not limited to Section 1(g). e. Disclosure of Covered Materials by a Party or its counsel to either Party's experts or consultants is not a waiver of the attorney-client privilege, the work product privilege, Common Interest Doctrine, or any other applicable privilege. Each Party shall instruct its experts or consultants not to disclose information to any third party without prior consent of the other Party and such disclosure may only be made in a manner consistent with the terms and conditions of this Agreement. f. This Agreement does not obligate the Parties to share any particular materials or information. g. If any Covered Materials become the subject of an application for an administrative or judicial order (such as a Motion to Compel) or a public records request seeking to require disclosure of such information or documents by a Party or under circumstances where the information, if disclosed,would be unprotected by confidentiality obligations,that Party shall give prompt written notice of the effort to require disclosure to all other Parties, such that any Party has a timely opportunity to seek to protect the confidentiality of the Covered Materials. The Parties shall cooperate with one another to preserve the confidentiality of Covered Materials. h. The terms of this Agreement shall not apply to information or documents which are now in, or hereinafter enter the public domain, or are otherwise not protected from disclosure, except that it shall continue to apply to any Covered Materials disclosed wrongfully or in violation of this Agreement. i. Any unauthorized or accidental disclosure of Covered Materials by a Party to this Agreement shall not result in a waiver of any Party's claim of confidentiality or other protection as applicable to the disclosed materials. No Party may waive any applicable privilege or other protection on behalf of any other Party. j. The confidentiality obligations of this Agreement survive the termination of the Agreement. 2. IDENTIFICATION AND RETURN OF COVERED MATERIALS a. All Covered Materials that are exchanged pursuant to this Agreement should be marked or designated with language to the following effect: "Privileged and Confidential; Common Interest Covered Materials." b. All correspondence,including electronic or oral communications,to which only the Parties are a party shall be considered Covered Materials pursuant to this Agreement. c. Failure to designate Covered Materials in accordance with Paragraph 2(a) shall not in and of itself render any privilege or other protection inapplicable, but no claim of breach of duty,with respect to the later disclosure of such materials, may be made by a disclosing Party that failed to properly designate Covered Materials under this Agreement. 3. INADMISSIBLITY. This Agreement shall not constitute or be used as evidence against any Party, This Agreement shall not affect any of the rights of any Party under federal, state, or local law. Common Interest Agreement Page 4 4. REPRESENTATION. Each Party understands and acknowledges that it is represented exclusively by its own attorney in this matter and that this Agreement does not and will not create any attorney-client relationship with any other Party's attorney. Each Party shall bear their own costs for any attorney hired,retained,or engaged by such Party. In no event shall the terms of this Agreement be interpreted to require a Party to pay the legal fees/costs for work performed by an attorney hired,retained, or engaged by the other Party. 5. CONFLICTS. The Parties hereto understand and agree that nothing arising out of this Agreement shall give rise to an assertion by either Party of a conflict of interest as to any Attorney, including any additional or substitute Attorney, to the Parties that are signatories to this Agreement. 6. WITHDRAWAL. Any Party may withdraw from this Agreement upon tendering written notice by electronic mail to all other signatories to this Agreement, in which case this Agreement shall no longer be operative as to the withdrawing Party, but shall continue to protect all communications, information, and Covered Materials pursuant to this Agreement which were disclosed to the withdrawing Party. 7. TERMINATION. This Agreement shall terminate upon:(1)one Party providing written notice of termination to the other Party as provided for in Paragraph 6 above, (2) execution of a full settlement or resolution of any legal or administrative action of the Covered Matters, (3) filing of a stipulation discontinuing or dismissing with prejudice of any legal or administrative action of the Covered Matters, (4) an entry of an order discontinuing or dismissing with prejudice any legal or administrative action of the Covered Matters, (5)entry of a final,non-appealable judgment of any legal action of the Covered Matters, or (6) execution of a subsequent agreement by the Parties regarding Covered Materials. The confidentiality obligations of this Agreement shall survive any termination. 8. AUTHORITY. The individuals executing this Agreement on behalf of their respective clients represent that they have the authority to sign this Agreement and the authority to bind and commit their respective clients to the terms hereof. 9. MODIFICATION. This Agreement may be amended only by a writing signed by the Parties. 10. HEADINGS. The headings contained in this Agreement are inserted solely for convenience and shall not be deemed to define or amend any provision or this Agreement. 11. APPLICABLE LAW. This Agreement shall be governed by the laws of the State of Washington without regard to conflict of laws principles. Common Interest Agreement Page 5 12.MANDATORY PROVISIONS 1N THIRD-PARTY AGREEMENTS. When a Party retains an attorney or law firm who may receive information covered by this Agreement from the other Party, then the party retaining the attorney/law firm shall require the attorney/law firm to acknowledge in a signed wilting that the attorney/law firm (i) has received a copy of this Agreement and(ii)agrees to abide by all terms of this Agreement. 13.COUNTERPARTS OR ELECTRONIC SIGNATURE a. This Agreement may be executed in counterparts and each counterpart signature shall constitute a duplicate original. b. This Agreement may also be executed with an electronic signature. IN WITNESS WHEREOF,the Parties have caused this Agreement, as set forth above,to be duly executed. CITY OF SPOKANE VALLEY fi Date: ?- 23-2G `l J n Hohman,City Manager 10210 E. Sprague Avenue Spokane Valley,WA 99206 SPOKANE COUNTY Date: 7l74-iZ6 Matthew Folsom, Chief Civil Deputy Attorney 1115 W. Broadway Avenue Spokane,WA 99260 Approved as to form by: 1ByCITY OF SPO VALL Date: � '° Z+00-1Q Kelly igh City Attorney 10210 .Sp ue Avenue Spo a Val ey,WA 99206