Resolution No. 89501 RESOLUTION NO. 8950
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3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
4 CALIFORNIA REFUND CLAIMS JOINT DEFENSE
5 CONFIDENTIALITY AGREEMENT AMONG VARIOUS PARTICIPANTS
IN FERC DOCKET NOS. EL00-95, ET AL.
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7 WHEREAS, the City of Vernon, together with the Cities of
8 Anaheim, Azusa, Banning, Burbank, Colton, Glendale, Pasadena, Redding,
9 Riverside and Santa Clara, the Arizona Electric Power Cooperative,
10 Inc., the Bonneville Power Administration, the Eugene Water and
11 Electric Board, the Modesto Irrigation District, the Northern
12 California Power Agency, the Public Utility District No. 2 of Grant
13 County, Washington, the Sacramento Municipal Utility District, the
14 State Water Contractors/the Metropolitan Water District of Southern
15 California, the Turlock Irrigation District, the Western Area Power
16 Administration and the Los Angeles Department of Water & Power
17 (collectively, the "Parties") are sellers or potential sellers of power
18 that are not subject to the jurisdiction of the Federal Energy
19 Regulatory Commission ("FERC"); and
20 WHEREAS, the Parties are participants in San Diego Gas &
21 Electric Company v. Sellers of Energy and Ancillary Services Into,
22 Markets Operated by the California Independent System Operator
23 Corporation and the'California Power Exchange Corporation, FERC Docket
24 Nos. EL00-95, et al. (the "FERC Refund Proceeding"); and
25 WHEREAS, the FERC Refund Proceeding was initiated to address
26 whether there may be unjust and unreasonable charges for spot market
27 wholesale energy sales by public utilities to the California
28 Independent System Operator Corporation ("ISO") and/or the California
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Power Exchange Corporation ("Cal PX") for the period October 2, 2000
through June 2.0, 2001; and
WHEREAS, a number of the Parties, including Vernon, have
received claims for damages or face a significant possibility of
receiving claims for damages from Pacific Gas & Electric Company,
Southern California Edison Company, San Diego Gas & Electric Company,
the California Electricity Oversight Board and other entities
(collectively, "Claimants") related to sales of power for the period
May 1, 2000 through June 20, 2001 to the ISO, the Cal PX and/or the
California Energy Resources Scheduling Division ("CERS") of the
California Department of Water Resources (the "California
Proceedings"); and
WHEREAS, the Parties anticipate that a number of the Parties -
which are not California governmental entities may receive similar
claims for damages from the Claimants related to sales of power for the
period May 1, 2000 through June 20, 2001 to the ISO, the -Cal PX and
CERS (the "Other Proceedings"); and
WHEREAS, the Parties have common interests and issues with
respect to the FERC Refund Proceeding, the California Proceedings and
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the Other Proceedings (collectively, the "Refund Proceedings") and
desire to engage in joint common and cooperative defense efforts on a
continuing basis throughout all of the Refund Proceedings; and
WHEREAS, the City of Vernon desires to preserve and protect
its rights by entering into a confidentiality agreement with the other
Parties to implement the exchange of information in the Refund
Proceedings in a manner that preserves the confidentiality and
protected status of the documents, materials, and information.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves the California Refund Claims Joint Defense Confidentiality
Agreement, in substantially the form on file with the City Clerk.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the City Attorney, or his designee, to execute said
Agreement for, and -on behalf of, the City of Vernon.
SECTION 4: The Acting City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and thereafter
the same shall be in full force and effect.
APPROVED AND ADOPTED this 15th day of February, 2006.
ATTEST:
[--�
BRUCEQV. UPILKENHORST, JR.
Acting City Clerk
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LEONIS C. `LBURG, Mayor
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1 STATE OF CALIFORNIA )
ss
2 COUNTY OF LOS ANGELES )
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4 I, BRUCE V. MALKENHORST, JR., Acting City Clerk of the City of
5 Vernon, do hereby certify that the foregoing Resolution, being
6 Resolution No. 8950, was duly adopted by the City Council of the City
7 of Vernon at a regular meeting of the City Council duly held on
8 Wednesday, February 15, 2006,.and thereafter was duly signed by the
9 Mayor of the City of Vernon.
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BRUCE V. KENHORST, JR.
12 Acting City Clerk
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(SEAL)
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FORM,ON FILE AT CITY CLERK'S OFFICE PER RESOLUTION NO. 8950 ADOPTED FEBRUARY 15, 2006
PRIVILEGED AND CONFIDENTIAL
CALIFORNIA REFUND CLAIMS
JOINT DEFENSE CONFIDENTIALITY AGREEMENT
THIS AGREEMENT made as of January 20, 2006, among the undersigned
parties ("Parties" and each individually a "Party"), by and through their authorized counsel:
WHEREAS, each of the Parties is a seller of power, whose sales of power are not
subject to the jurisdiction of the Federal Energy Regulatory Commission ("FERC");
WHEREAS, each of the Parties is and/or was a participant in the FERC
proceeding, San Diego Gas & Electric Company v. Sellers of Energy and Ancillary Services Into
Markets Operated by the California Independent System Operator Corporation and the
California Power Exchange Corporation, FERC Docket Nos. EL00-95, et al. ("FERC Refund
Proceeding"), which was initiated to address whether there may have been unjust and
unreasonable charges for spot market wholesale energy sales by public utilities to the California
Independent System Operator Corporation ("ISO") and/or the California Power Exchange
Corporation ("Cal PX") for the period October 2, 2000 through June 20, 2001;
WHEREAS, a number of the Parties have received, or face a significant
possibility of receiving, claims for damages from Pacific Gas and Electric Company, Southern
California Edison Company, San Diego Gas & Electric Company, the California Electricity
Oversight Board and other entities (collectively, "Claimants") related to sales or exchanges of
power for the period May 1, 2000 through June 20, 2001 to the ISO, the Cal PX and/or the
California Energy Resources Scheduling Division ("CERS") of the California Department of
Water Resources (such claims are hereinafter referred to as "California Proceedings");
WHEREAS, the Parties anticipate that a number of the Parties which are not
California governmental entities may receive similar, claims for damages from the Claimants
related to sales or exchanges of power for the period May 1, 2000 through June 20, 2001 to the
ISO, the Cal PX and CERS (such claims are hereinafter referred to as "Other Proceedings");
WHEREAS, the Parties have common interests and issues with respect to said
FERC Refund Proceeding, California Proceedings and Other Proceedings (collectively the
"Refund Proceedings"), and believe, communication, the exchange of information, documents
and other materials (including attorney work product), and certain other cooperative efforts
between the Parties and their counsel has been and continues to be reasonably necessary to
accomplish the purposes for which the Parties have retained or consulted with their respective
counsel;
WHEREAS, the Parties recognize that state and federal courts have endorsed the
joint defense and common interest exceptions to the general rule that no attorney -client privilege
attaches to communications made in the presence of third parties;
LA-109509 v6 Page 1 of 12
WHEREAS, the Parties intend that the term "co-defendant," which is often the
term applied to the joint effort group in reported court cases relating to the common interest and
joint defense privileges, be construed broadly to include the group denoted "Parties" herein
inasmuch as the Parties have mutual concerns and interests in the Refund Proceedings despite
the fact that one or more of the Parties may appear in different capacities in the Refund
Proceedings;
WHEREAS, the Parties, along with certain other sellers of power which are also
not subject to FERC jurisdiction (the "Cooperating Other Seller(s)"), have engaged in a joint
defense effort throughout the FERC Refund Proceeding, and in order to avoid confusion given
that the Claimants seek or may seek to raise their claims in one or more additional forums, the
Parties seek herein to memorialize the understanding of that joint defense effort by the Parties on
a continuing basis throughout all of the Refund Proceedings;
WHEREAS the Parties understand that some Parties may have additional
defenses in one or more of the Refund Proceedings, but that the Parties' positions and/or
interests in connection with the Refund Proceedings are on the whole the same or substantially
similar;
WHEREAS, in order to aid and promote adequate representation and to achieve
efficiencies and cost reductions, the Parties have participated, along with the Cooperating Other
Sellers, in a joint common and cooperative defense to the Refund Proceedings, and the Parties
intend to continue to participate in such a joint common and cooperative defense to the Refund
Proceedings without such Cooperating Other Sellers;
WHEREAS, the Parties also desire to encourage the free and candid exchange of
information relating to the Refund Proceedings among counsel in confidence and on a reciprocal
basis, and without a waiver of the attorney -client privilege, protection as attorney work product,
or any other privilege or exemption protecting the information from discovery, disclosure,
misuse for any business or competitive purposes, or use in the Refund Proceedings for any
purpose beyond the defense of claims seeking refunds;
WHEREAS, the Parties wish to set forth the terms and conditions under which
the Parties have had and will continue to have access to such documents, materials, and
information, which may include confidential information, attorney -client privileged
communications, and attorney work product, in a manner that preserves the confidentiality and
protected status, as the case may be, of the documents, materials, and information;
WHEREAS, nothing in this Agreement is intended to conflict with any Party's
interest in receiving independent, vigorous and separate representation;
WHEREAS, nothing in this Agreement is intended to create an attorney -client
relationship between any Party and any counsel retained by any other Party;
WHEREAS, nothing in this Agreement applies to any information or documents
once formally produced by a Party or obtained from a Party pursuant to formal discovery;
LA-109509 v6 Page 2 of 12
WHEREAS, the Parties recognize that a number of the Parties were also
purchasers of power from the ISO, Cal PX and CERS in the period between May 1, 2000 and
June 20, 2001 and, therefore, may have counterclaims or cross -claims against one or more other
Parties and/or one or more of the Claimants related to the Refund Proceedings, and that such
Parties' participation in this Agreement (including any and all joint efforts undertaken among
one or more of the Parties prior to the date of this Agreement) shall not be deemed to be a waiver
or compromise of any such counterclaims or cross -claims;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged by each of the Parties, each Party does hereby confirm existing oral
agreements and further covenants and agrees as follows:
l . Ongoina Joint Defense. The Parties agree that all efforts undertaken collectively by any
two or more of the Parties, and their respective counsel, in connection with or in response
to or pursuant to any of the Refund Proceedings prior to the date of this Agreement were
and shall be construed to be conducted pursuant to this Agreement and subject to the
joint interest and/or joint defense and other applicable privileges.
2. Cooperation in Joint Defense. The Parties agree that the Parties, and their respective
counsel, shall cooperate, to the extent possible and consistent with each Party's and each
counsel's legal and ethical obligations, in the joint investigation and/or joint defense of
the Refund Proceedings. The Parties intend that the cooperation may include, but is not
necessarily limited to, the sharing of thoughts, analyses and impressions of the Parties
and their counsel, the informal sharing of documents and other information between the
Parties without the need for formal discovery requests, coordination of discovery efforts,
and coordination of legal efforts directed to parties other than the Parties to this
Agreement. All such information, thoughts, analyses, impressions, documents,
interviews, legal memoranda, coordination and other activities or materials shared
pursuant to this Agreement shall be referred to as "Shared Information."
Limitation on Use and Disclosure of Shared Information. Each Party agrees to receive
and hold in strictest confidence any oral or written Shared Information that has been or
will be disclosed to it pursuant to this Agreement by any other Party, to use the Shared
Information for the purpose of defending the recipient Party in the Refund Proceedings
(and not for the purpose of asserting refund claims, including counter -claims and/or cross
claims for refunds among the Parties), and to take all steps necessary to maintain the
confidentiality of the Shared Information, including, but not limited to, claiming all
applicable privileges when receiving a subpoena, request or demand for documents by an
entity not a Party to this agreement. The Parties agree that the exchange of Shared
Information between or among any Parties has been and will be made in reliance on and
in consideration of the Parties' mutual assurances and agreement that the Shared
Information will be kept privileged and confidential and will not be disclosed.
Information shall be deemed Shared Information whether it is disclosed directly or
indirectly between and among the Parties themselves. The recipient Party shall only
disclose such Shared Information to: (a) counsel of Parties; (b) those of the Parties' or
LA-109509 v6 Page 3 of 12
their counsels' employees who have a need to know such information in order to assist in
the representation of the recipient Parties in the Refund Proceedings; (c) Authorized
Recipients as defined in Paragraph 9; or (d) if compelled to do so by a court or agency of
competent jurisdiction. The Parties agree that the use and disclosure of Shared
Information is limited solely to defending the Parties against affirmative refund claims or
pursuing counterclaims against any or all of the Claimants. Each Party to this Agreement
represents, warrants and agrees that each employee, consultant, expert, witness, agent, or
attorney to whom Shared Information is disclosed pursuant to this Agreement does not
and shall not perform any functions wherein their work will involve actual or potential
direct affirmative refund claims in the Refund Proceedings on behalf of any or all of the
Claimants against the Parties, as distinguished from (a) cross or counter claims among
Parties to this Agreement or (b) actual or potential affirmative refund claims by a Party
against any of the Claimants in the FERC Refund Proceeding. Each Party will be
responsible for any violations of the Agreement by any persons or entities to whom it
provides Shared Information. This Agreement is understood to apply to all Parties, their
employees, agents, successors, assigns, and attorneys (including any and all attorneys
who have or shall represent any of the Parties in connection with any of the Refund
Proceedings).
4. Information Not Subject to Agreement. The provisions of Paragraph 3 shall not apply to
Shared Information that is now, or hereafter becomes, public information without
violation of this Agreement
5. Shared Information "For Attorneys Only" Any Party providing Shared Information,
either written or oral, may provide such Shared Information "For Attorneys Only," in
which case Shared Information shall be disclosed only to counsel for the Refund
Proceedings.
6. Identification of Shared Information. For the elimination of confusion, henceforth all
written Shared Information, including, without limitation, emails and other electronically
transmitted information, should identify the Party providing the information and also be
clearly labeled with the legend "Privileged and Confidential Joint Defense Material —
California Refund Claims Joint Defense Agreement," or with a substantially similar
legend, and with the additional designation of "For Attorneys Only" if necessary.
Inadvertent failure to label Shared Information in accordance with this paragraph shall
not be deemed a waiver by the disclosing Party of the protections of this Agreement.
Shared Information disclosed prior to the date of this written Agreement shall be deemed
to be protected pursuant to the terms of this Agreement notwithstanding the omission of a
legend otherwise called for by this paragraph.
Addition of Parties to Agreement. In addition to the original Parties to this Agreement,
additional entities or persons may become Parties to this Agreement, subject to a 90
percent vote of the existing Parties and subject to the conditions in Paragraph 8. Notice
of a vote on an additional entity's or person's intent to execute this Agreement shall be
circulated to the other Parties to this Agreement in accordance with Paragraph 30. The
Parties shall vote by e-mail by the deadline stated in the notice, which shall in no. event
LA-109509 v6 Page 4 of 12
be less than ten (10) days from the date notice of the vote was given. A Party's failure to
vote shall be considered a vote in favor of the additional Party. Any such additional
Party shall be required to execute this Agreement in accordance with Paragraph 29, and a
copy of the Agreement as executed by such additional Party shall be circulated to the
other Parties to this Agreement in accordance with Paragraph 30.
8. Common Interest. The Parties acknowledge that the common interests they share with
respect to this Agreement arise from their status as non-FERC jurisdictional sellers of
power and are adverse to the interests of Claimants who may support the filing of direct
affirmative refund claims against the Parties. The Parties acknowledge and affirm that
based on their status as non-FERC jurisdictional sellers or potential sellers of wholesale
electricity in California and as targets or potential targets of direct affirmative refund
claims in the Refund Proceedings, among other factors, the Parties share common
interests in defending the allegations asserted.in the Refund Proceedings.
Disclosure of Information to a Non -Party "Authorized Recipient." If at any time a Party
intends to disclose any Shared Information with a non -Party, including without limitation
any Cooperating Other Sellers, outside consultants, experts, witnesses, or other agents,
the non -Party must be informed of the existence of this Agreement, and each individual
to whom Shared Information is to be disclosed shall execute an Acknowledgement of the
California Refund Claims Joint Defense Agreement, attached hereto as Exhibit A,
making this non -Party an "Authorized Recipient." Each Authorized Recipient must
represent and warrant that he or she does not and shall not perform any functions wherein
their work will involve actual or potential direct affirmative refund claims in the Refund
Proceedings on behalf of the Claimants, as distinguished from (a) cross or counter claims
among Parties to this Agreement or (b) actual or potential affirmative refund claims by a
Party against any of the Claimants in the FERC Refund Proceeding. Immediately
following execution of such Acknowledgement and before disclosure of Shared
Information to such Authorized Recipient, such signed Acknowledgement must be
circulated among the Parties to this Agreement in accordance with Paragraph 30. Any
Party wishing to challenge an Authorized Recipient must notify all other Parties of such
such challenge, by e-mail, within ten (10) days after the Acknowledgement is circulated.
Parties shall cast their votes, by e-mail, within two (2) business days from the date of the
e-mail giving notice of such challenge. A Party's failure to vote will be construed as a
vote against the challenge. Exclusion of any challenged Authorized Recipient shall be
based on a simple majority vote. If there is no such challenge within ten (10) days after
Acknowledgement is circulated, Shared Information may be disclosed to the Authorized
Recipient. Nothing in this paragraph restricts any Party from disclosing its own
documents and information to anyone, including consultants and experts, provided that
such disclosure does not include Shared Information produced by another Party and
protected by this Agreement:
10. Challenge of Parties. If any Party to this Agreement ("Challenging Party") believes that
another Party to this Agreement, or that Party's employees, agents, successors, assigns,
experts, Authorized Recipients or consultants ("Challenged Party") has a conflict of
interest that prevents or hinders any of the purposes of this Agreement, or for any other
LA-109509 v6 Page 5 of 12
reason should not be a Party to this Agreement, the Challenging Party or Parties may
request in writing, in accordance with Paragraph 30, that the Challenged Party or Parties
be excluded from this Agreement. Upon such a written request, a vote will be held by the
Parties to this Agreement other than the Challenging Party or Parties and the Challenged
Party or Parties, as to whether the Challenged Party or Parties should be excluded.
Exclusion of any Challenged Party will be based on a simple majority vote. Such vote
shall be held by e-mail within the voting deadline stated in the request, which shall in no
event be less than 10 days from the date notice of the request was given. A Party's failure
to vote will be construed as a vote against the challenge. Any Challenged Party so
excluded from this Agreement shall automatically be deemed to have withdrawn from
this Agreement and the provisions of Paragraphs 15, 17 and 23 shall apply.
11. No Requirement of Disclosure. No Party to this Agreement is required to disclose any
Shared Information to any other Party. Nor is any Party required to disclose Shared
Information to any or all other Parties to this Agreement. Nothing in this Agreement
prohibits any Party from disclosing Shared Information to any other Party or Parties
without disclosing it to all Parties.
12. No Limitation on Party's Disclosure of Its Own Information. Nothing in this Agreement
shall limit the right of any Party to use, or to disclose to anyone, any of its own
documents or information, or any documents or information obtained independently and
not pursuant to this Agreement.
13. Work Product Protection. All documents and materials created by, among or under the
direction of counsel for any Party or any group of Parties to this Agreement related in any
way to the Refund Proceedings shall be deemed to be attorney work product of each
Party whose counsel was involved in its creation.
14. Non -Waiver of Privilege. The disclosure of Shared Information among the Parties
pursuant to this Agreement shall not be deemed to be: (a) a "subject matter" waiver of
any attorney -client, work product or other privilege or protection otherwise applicable to
any such Shared Information; or (b) any waiver of any attorney -client, work product or
other privilege as to any person whether or not they are a Party to this Agreement at the
time of such disclosure.
15. Continuing_ Duties. The obligations of this Agreement shall continue as to all Shared
Information received pursuant to this Agreement, notwithstanding any withdrawal from
or termination of this Agreement.
16. Notice Before Disclosure. If any person who is not a Party to this Agreement, by any
discovery request or other formal or informal process, requests or demands any Shared
Information from any Party, or if any Party learns of any actual disclosure of Shared
Information, the Party or counsel receiving such request or demand, or learning of such
actual disclosure, shall immediately notify all other Parties to this Agreement in writing
in accordance with Paragraph 30. Both the Party which originally disclosed the Shared
Information and the recipient of the demand or request agree to undertake the necessary
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steps to assert all applicable privileges and rights to protect the confidentiality of the
Shared Information, unless the Parties mutually agree to disclose the Shared Information.
17. Withdrawal. Any Party may withdraw from this Agreement upon five (5) days' written
notice to the other Parties in accordance with Paragraph 30, which notice shall be
accompanied by: (a) a return to each disclosing Party or its counsel of all documents
obtained in hard copy pursuant to this Agreement, without retaining any copies,
summaries or extracts thereof, or any other memorialization of information derived from
the Disclosing Parties documents; or (b) a written certificate of destruction confirming
under oath that all such documents have been destroyed. Within ten (10) days after such
notice of withdrawal, all other Parties shall: (a) return to the withdrawing Party or its
counsel all of the withdrawing Party's documents obtained in hard copy pursuant to this
Agreement, without retaining any copies, summaries or extracts thereof, or (b) provide a
written certificate of destruction confirming under oath that all such documents have
been destroyed. The time for returning documents or certifying destruction may be
extended with written consent of the Party whose documents are involved. Documents
containing Shared Information need not be returned upon withdrawal if they were
generated jointly by the Parties, or a group of the Parties, in connection with the defense
of the Refund Proceedings. Upon withdrawal, no Party shall be entitled to return of its
electronic documents or data, but such electronic documents and data shall be maintained
in strictest confidence by all Parties in accordance with this Agreement after withdrawal.
All Parties and counsel shall continue to be obligated to maintain at all times the
privileged and confidential nature of all information obtained from another Party
pursuant to this Agreement despite any withdrawal from or termination of this
Agreement by any Party.
18. Conflict of Interest and Disqualification. Nothing in this Agreement shall create a
conflict of interest so as to require the disqualification of any counsel from the
representation of the Party it represents in any matter, including without limitation the
Refund Proceedings, and the Parties hereby waive any such conflict of interest. It is
agreed that no attorney who has entered into the Agreement shall be disqualified from
examining or cross-examining any Party who testifies at any proceeding, merely because
of such attorney's participation in the Agreement or withdrawal from the Agreement.
The Parties understand and acknowledge that they have the right to retain separate
counsel to advise them on conflict of interest and disqualification issues relating to this
Agreement.
19. Shared Information. The Parties and their counsel agree that neither the materials
received from another Party pursuant to this Agreement, nor the contents thereof, will be
used by the recipient Party as evidence in any proceeding whatsoever, including without
limitation the Refund Proceedings, unless: (a) such information is obtained or produced
independent of the exchange of information under this Agreement; or (b) the disclosing
Party consents in writing to such use of its material. Nothing in this paragraph is
intended to restrict a Party from using its own Shared Information in any proceeding,
whether related or unrelated to the Refund Proceedings.
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20. Limitation of Duties and Conflicts. Parties understand that they are represented only by
their own attorneys in this matter, and that while attorneys representing the other Parties
have a duty to preserve the confidences disclosed to them pursuant to the Agreement,
each attorney will be acting only as the attorney for his respective client and will owe a
duty of loyalty only to his or her own client. Each Party knowingly and intelligently
waives any conflict of interest that may arise from counsel for any Party, other than their
own attorney, examining them at any proceeding in the Refund Proceedings.
21. Confidentiality of Agreement. This Agreement itself shall be maintained in confidence
unless: (a) its production is required by legal process or applicable laws; (b) its disclosure
is needed to support a claim of privilege arising from the Agreement; or (c) its disclosure
is necessary to enforce the Agreement.
22. Injunctive Relief. Parties acknowledge that disclosure of any materials or information in
violation of this Agreement wilf cause the Parties hereto to suffer irreparable harm for
which there is no adequate legal remedy. Each Party hereto acknowledges that
immediate injunctive relief is the appropriate and necessary remedy for any violation or
threatened violation of the Agreement. Such injunctive relief shall be the sole and
exclusive remedy for any violation or threatened violation of the Agreement.
23. Continuation of Obligations. The obligations of this Agreement shall continue
notwithstanding a Party's withdrawal from this Agreement or any conclusion or
resolution as to any Party hereto of the Refund Proceedings or any future proceedings
arising from or relating to them. Parties and their counsel agree to continue to preserve
the confidentiality and limited permissible use, as provided for in this Agreement, of any
Shared Information received under this Agreement following any such withdrawal,
conclusion, or resolution.
24. Specific Waiver. Any waiver in any particular instance of the rights and limitations
contained herein shall not be deemed, and is not intended to be, a general waiver of any
rights or limitations contained herein and shall not operate as a waiver beyond the
particular instance.
No Party's participation in this Agreement (including any and all joint efforts undertaken
among one or more of the Parties prior to the date of this Agreement) shall be deemed to
be a waiver or compromise of any counterclaims or cross -claims such Party may have
against one or more other Parties and/or of one or more of the Claimants related to the
Refund Proceedings.
25. No Admissions. No part of this Agreement shall constitute or be interpreted or construed
as an admission by the Parties of any liability under any federal, state or local law or that
any of the Parties is in violation of, or has ever violated, any federal, state or local laws,
rules or regulations.
26. No Agency or Partnership. This Agreement shall not create any agency, partnership, or
similar relationship among the Parties. No Party shall have any authority to waive any
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applicable privilege or doctrine on behalf of any other Party. Nor shall any waiver of any
applicable privilege or doctrine by the consent of any Party be construed to apply to any
other Party.
27. Settlement. Each Party intends to defend itself vigorously in the Refund Proceedings.
Each Party is free to seek to have itself dismissed from the Refund Proceedings. Each
Party retains the right, if it so chooses, to enter into a settlement with respect to the
Refund Proceedings at any time with one or more of the Claimants. Each Party agrees to
notify the other Parties immediately in writing in the event that any settlement related to
the subject matter of the Refund Proceedings is reached with one or more of the
Claimants known to be filing an affirmative case claiming refunds in the Refund
Proceedings. Subject to Paragraph 16, the Parties agree that, at no time, including but not
limited to during or following any settlement negotiations with one or more of the
Claimants known to be filing an affirmative case claiming refunds in the Refund
Proceedings, or after any settlement with one or more of the Claimants, shall any Shared
Information be disclosed or provided to one or more of the Claimants known to be filing
an affirmative case claiming refunds in the Refund Proceedings, or their attorneys,
consultants, or experts.
28. Warranty of Signatories' Authority. Each person whose signature appears below
warrants and guarantees that he or she has been duly authorized and has full authority to
execute this Agreement on behalf of the entity or entities which he or she represents.
29. Execution of Agreement. This Agreement may be executed in counterparts and
constitutes the complete Agreement between the Parties, and may not be amended,
waived or modified except upon the written consent of all Parties who are then Parties to
this Agreement.
30. Notice. In any provision of this Agreement requiring notice to the Parties, such notice
shall be given in the manner stated in this paragraph. Notice to each Party shall be given
to the persons, addresses and facsimile numbers identified in Exhibit B to this
Agreement. Notice shall be given in writing via facsimile or electronic transmission.
Notice shall be deemed given on 5:00 p.m. Pacific time of the day of transmission. The
Parties may amend the notice provisions of this paragraph in writing.
31. Cooperating Other Sellers. The undersigned Parties and their respective counsel
understand and agree that it may be in the best interests of the Parties to, from time to
time, consult with and/or cooperate with one or more Cooperating Other Sellers.for the
purpose of advancing the joint defense and/or common interests of the Parties. Should
the Parties decide to consult with and/or cooperate with any such Cooperating Other
Seller(s), the Parties may designate one or more counsel for the respective Parties as
"Liaison Counsel" to communicate on behalf of the Parties with such Cooperating Other
Seller(s). Unless such Cooperating Other Seller shall become a Party hereto pursuant to
the provisions of Paragraph 7 hereof or shall become an Authorized Recipient pursuant to
Paragraph 9 hereof, no such Cooperating Other Seller shall be permitted to receive any
Shared Information unless otherwise expressly provided herein.
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32. Choice of Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to choice of law. However, the
obligations under this Agreement as to the Western Area Power Administration and the
Bonneville Power Administration shall be governed by and construed in accordance with
the laws of the United States of America.
33. Parties and Their Counsel. Exhibit B hereto identifies all current Parties to this
Agreement and their respective counsel in the Refund Proceedings. Pursuant to
Paragraph 3 hereof, this Agreement is understood to apply to all attorneys for each of the
Parties (including any and all attorneys who have or shall represent any of the Parties in
connection with any of the Refund Proceedings). For purposes of clarity, Exhibit B shall
be updated and circulated to all Parties upon the occurrence of the following: (a) the
addition of a Party to this Agreement pursuant to Paragraph 7 hereof; (b) the withdrawal
of a Party from this Agreement pursuant to Paragraph 17 hereof; or (c) any change in the
identity of or contact information for any attorney representing any of the Parties in the
Refund Proceedings. The Parties shall agree upon a single attorney or law firm to be
responsible to maintain a current, updated version of Exhibit B (the "Exhibit B
Coordinating Counsel") which shall be deemed to be the official, operative version of
Exhibit B at any point in time. Unless and until the Parties agree otherwise (by simple
majority vote), the law firm of Kirkpartick & Lockhart Nicholson Graham LLP shall be
and act as the Exhibit B Coordinating Counsel for this Agreement. In the event of the
addition of a new Party to this Agreement or the withdrawal of a Party from this
Agreement, the Exhibit B Coordinating Counsel will update and circulate a revised
Exhibit B to all parties in accordance with Paragraph 30. In the event of any change in
the identity of or contact information for any attorney representing any of the Parties in
the Refund Proceedings, it shall be the responsibility of such Party to promptly notify the
Exhibit B Coordinating Counsel of such change, after which the Exhibit B Coordinating
Counsel will update and circulate a revised Exhibit B to all parties in accordance with
Paragraph 30.
By:
(Date) Attorney for: City of Anaheim
By:
(Date) Attorney for: Arizona Electric Power Cooperative,
Inc.
By:
(Date) Attorney for: City of Azusa
LA-109509 v6 Page 10 of 12
M.
(Date)
Attorney for:
City of Banning
By:
(Date)
Attorney for:
Bonneville Power Administration
By:
(Date)
Attorney for:
City of Burbank
By:
(Date)
Attorney for:
City of Colton
By:
(Date)
Attorney for:
Eugene Water and Electric Board
By:
(Date)
Attorney for:
City of Glendale
By:
(Date)
Attorney for:
Modesto Irrigation District
By:
(Date)
Attorney for:
Northern California Power Agency
By:
(Date)
Attorney for:
City of Pasadena
By:
(Date)
Attorney for:
Public Utility District No. 2 of Grant
County, Washington
By:
(Date)
Attorney for:
City of Redding, California
LA-109509 v6 Page 11 of 12
By:
(Date) Attorney for: City of Riverside
By:
(Date) Attorney for: Sacramento Municipal Utility District
By:
(Date) Attorney for: City of Santa Clara, California
M-
(Date)
Attorney for:
State Water Contractors / The
Metropolitan
Water District of Southern California
By:
(Date)
Attorney for:
Turlock Irrigation District
By:
(Date)
Attorney for:
City of Vernon
By:
(Date)
Attorney for:
Western Area Power Administration
LA-109509 v6 Page 12 of 12
Exhibit A
Acknowledgement of California Refund Claims Joint Defense Confidentiality Agreement
I, , (print or type name) understand that in the course of my
deposition, discovery, consultation or other involvement in the Refund Proceedings arising from
claims for damages by the Claimants, I may questioned about or shown documents or other
information which one or more of the Parties may have designated as "Confidential" or "For
Attorneys Only" or otherwise deemed Shared Information subject to the California Refund
Claims Joint Defense Confidentiality Agreement ("Agreement"). I hereby acknowledge that I
have been advised of the existence of the Agreement entered in the above -referenced
Proceedings (a copy of which is attached hereto), that I have been given a copy of the
Agreement, that I have read and that I understand the terms and conditions of said Agreement,
and that I agree that I am bound by all of the provisions of said Agreement.
I state that I perform no function wherein my work will involve: (1) actual or potential
direct affirmative refund claims in the Refund Proceedings on behalf of the Claimants and/or (2)
actual or potential affirmative refund claims on behalf of purchasers or groups or entities
representing purchasers in the FERC Refund Proceedings, where such purchasers or groups or
entities representing purchasers include Claimants, as distinguished from either: a) cross or
counter claims among Parties to this Agreement or (b) actual or potential affirmative refund
claims against any of the Claimants in the FERC Refund Proceeding made on behalf of the Party
I represent under the Agreement. I understand that any relationship that I may have with the
Claimants known to be filing an affirmative case claiming refunds in the Refund Proceedings is
subject to challenge by the Parties to the Agreement.
I hereby swear or affirm that I will treat any Shared Information disclosed to me as
strictly confidential, that I shall not disclose any such information except in compliance with the
Agreement, and that I shall use any such Shared Information solely for the purposes of my role
in the Refund Proceedings, and not for any business or other purpose whatsoever.
I understand and agree that any violation by me of the terms of this Acknowledgement
and the attached Agreement may cause me to be personally liable.
M.
(Date)
LA-109509 vG Exhibit A
to California Refund Claims Joint Defense Agreement
Updated: February 2, 2006
Exhibit B
City of Anaheim
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
(202)585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncobum.com
Lucina Moses, Asst. City Attorney
Moses W. Johnson, IV, Deputy City Attorney
Alison Kott, Deputy City Attorney
Anaheim City Attorney's Office
200 S. Anaheim Boulevard, Suite 356
Anaheim, California 92805
(714)765-5169
Fax: (714)765-5123
E-mail: lmoses@anaheim.net
mjohnson@anaheim.net
akott@anaheim.net
Arizona Electric Power Cooperative, Inc.
Robert D. Rosenberg
Slover & Loftus
1224 Seventeenth Street, N.W.
Washington, D.C. 20036
(202) 347-7170
Fax: (202) 347-3619
E-mail: rdr@sloverandloftus.com
City of Azusa
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
(202) 585-6900
LA-109509 v6 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 1 of 9
Updated: February 2, 2006
Fax: (202) 508-1007
E-mail: bblair@thompsoncobum.com
Jeffry F. Ferre
Best Best & Krieger LLP
3750 University Avenue, Suite 400
PO Box 1028
Riverside, California 92502
(951)686-1450
Fax: (951) 686-3083
E-mail: jeff.ferre@bbklaw.com
City of Banning
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
(202)585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncobum.com
Bonneville Power Administration
Mark W. Pennak
United States Department of Justice
Civil Division, Appellate Staff
Room 7326 MAIN
950 Pennsylvania Avenue, N.W.
Washington D.C. 20530
(202)514-1673
Fax: (202) 514-9404
E-mail: Mark.Pennak@usdoj.gov
Stephen R. Larson
Peter J. Burger.
Office of General Counsel
Bonneville Power Administration
P.O. Box 3621, L-7
Portland, Oregon
(503) 230-4201
Fax: (503) 230-7405
E-mail: srlarson@bpa.gov
pjburger@bpa.gov
LA-109509 v6 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 2 of 9
Updated: February 2, 2006
City of Burbank
Terry B. Stevenson
Sr. Assistant City Attorney
275 E. Olive Ave.
P.O. Box 6459
Burbank, California 91510-6459
(818) 238-5702
Fax: (818) 238-5724
E-mail: tstevenson@ci.burbank.ca.us
Jon R. Stickman
Duncan & Allen
1575 Eye Street, N.W.
Washington, D.C. 20005
(202) 289-8400
Fax: (202) 289-8450
E-mail: jrs@duncanallen.com
City of Colton
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
(202) 585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncobum.com
Gregory Powers
Best Best & Krieger LLP
5 Park Plaza, Suite 1500
Irvine, CA 92614
(949)263-2600
Fax: (949) 260-0972
E-mail: Gregory.powers@bbklaw.com
Eugene Water and Electric Board
Thomas M. Grim
Cable Huston Benedict Haagensen & Lloyd LLP
1001 SW Fifth Avenue, Suite 2000
Portland, OR 97204
LA-109509 v6 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 3 of 9
Updated: February 2, 2006
(503) 224-3092
Fax: (503) 224-3176
E-mail: tgrim@chbh.com
City of Glendale
Steven G. Lins
Senior Assistant City Attorney
City of Glendale
613 East Broadway, Suite 220
Glendale, CA 91206-4394
(818) 548-2080
Fax: (818) 547-3402
E-mail: slins@ci.glendale.ca.us
Jon R. Stickman
Duncan & Allen
1575 Eye Street, N.W.
Washington, D.C. 20005
(202)289-8400
Fax: (202) 289-8450
E-mail: jrs@duncanallen.com
Modesto Irrigation District
Sean M. Neal
Jim Pembroke
Pete Scanlon
Duncan, Weinberg, Genzer & Pembroke, P.C.
915 L Street, Suite 1410
Sacramento, CA 95814
(916) 498-0121
Fax: (202) 467-6379
E-mail: smn@dwgp.com
jdp@dwgp.com
pjs@dwgp.com
Joy Warren
Assistant General Counsel
Modesto Irrigation District
P.O. Box 4060
Modesto, California 95352
(209) 526-7389
Fax: (209) 526-7383
E-mail: JoyW@mid.org
LA-109509 v6 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 4 of 9
Updated: February 2, 2006
Northern California Power Agency
Robert C. McDiarmid
Lisa Dowden
Meg Meiser
William S. Huang
Rebecca Baldwin
Spiegel & McDiarmid
1333 New Hampshire Avenue, NW
Washington, DC 20036
(202) 879-4000
Fax: (202) 393-2866
E-mail: robert.mcdiarmid@spiegelmcd.com
lisa.dowden@spiegelmcd.com
meg.meiser@spiegelmcd.com
william.huang@spiegelmcd.com
rebecca.baldwin@spiegelmcd.com
Benjamin T. Reyes
Meyers Nave
555 12th Street, Suite 1500
Oakland, California 94607
(510) 808-2000
Fax: (510) 444-1108
E-mail: breyes@meyersnave.com
City of Pasadena
James H. McGrew
Bruder, Gentile & Marcoux, LLP
1701 Pennsylvania Avenue N.W., Suite 900
Washington, D.C. 20006-5807
(202)296-1500
Fax: (202) 296-0627
E-mail: jhmcgrew@brudergentile.com
Public Utility District No. 2 of Grant County, Washington
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
LA-109509 v6 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 5 of 9
Updated: February 2, 2006
(202) 585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncobum.com
Ray A. Foianini
Foianini Law Offices
109 Division West
P.O. Box 908
Ephrata, Washingtion 98823
(509) 754-3591
Fax: (509) 754-5076
E-mail: rfoiani@gcpud.org
City of Redding, California
Sean M. Neal
Jim Pembroke
Pete Scanlon
Duncan, Weinberg, Genzer & Pembroke, P.C.
915 L Street, Suite 1410
Sacramento, CA 95814
(916) 498-0121
Fax: (202) 467-6379
E-mail: smn@dwgp.com
jdp@dwgp.com
pjs@dwgp.com
City of Riverside
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
(202) 585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncoburn.com
Mark L. Parsons
Susan Wilson
Office of the City Attorney, City of Riverside
3900 Main Street
Riverside, CA 92522
(951)826-5890
Fax: (951) 826-5540
LA-109509 v6 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 6 of 9
Updated: February 2, 2006
E-mail: MParsons@riversideca.gov
SWilson@riversideca.gov
Sacramento Municipal Utility District
Glen Ortman
Harvey Reiter
Andrew Hughes
Stinson Morrison Hecker LLP
1150 18th Street N.W.
Suite 800
Washington, DC 20036-3816
(202) 728-3016
Fax: (888) 704-8304
E-mail: gortman@stinsonmoheck.com
hreiter@stinsonmoheck.com
ahughes@stinsonmoheck.com
Laura O. Lewis
Senior Attorney
Sacramento Municipal Utility District
6201 S Street
Sacramento, CA 95817
(916) 732-6123
Fax: (916) 732-6581
E-mail: Ilewis@smud.org
City of Santa Clara, California
Sean M. Neal
Jim Pembroke
Pete Scanlon
Duncan, Weinberg, Genzer & Pembroke, P.C.
915 L Street, Suite 1410
Sacramento, CA 95814
(916) 498-0121
Fax: (202) 467-6379
E-mail: smn@dwgp.com
jdp@dwgp.com
pjs@dwgp.com
Helene L. Leichter, Assistant City Attorney
Roland D. Pfeiffer, Assistant City Attorney
Michael Downey, City Attorney
Office of the City Attorney
LA-109so9 v6 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 7 of 9
Updated: February 2, 2006
City Santa Clara dba Silicon Valley Power
1500 Warburton Avenue
Santa Clara, California 95050
(408) 615-2230
(408) 249-7846
E-mail: hleichter@siliconvalleypower.com
rpfeifer@siliconvalleypower.com
mdowney@siliconvalleypower.com
State Water Contractors / The Metropolitan Water District of Southern California
Diana Mahmud
Legal Department
Metropolitan Water District of Southern California
P.O. Box 54153
Los Angeles, California 90054-0153
(213) 217-6985
Fax: (213) 830-4581
E-mail: dmahmud@mwdh2o.com
Turlock Irrigation District
Jon R. Stickman
Duncan & Allen
1575 Eye Street, N.W.
Washington, D.C. 20005
(202) 289-8400
Fax: (202) 289-8450
E-mail: jrs@duncanallen.com
Barry F. McCarthy
McCarthy & Berlin, LLP
Suite 501
100 Park Center Plaza
San Jose, CA 95113
(408) 288-2080
Fax: (408) 288-2085
E-mail: bmcc@mccarthylaw.com
Jim Koontz
Griffith & Masuda
P.O. Box 510
Turlock, CA 95381
(209) 667-5501
Fax: (209) 667-8176
LA-109509 v6 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 8 of 9
Updated: February 2, 2006
Email: jkoontz@calwaterlaw.com
City of Vernon
Dennis M. P. Ehling
Ashley J. Camron
Kirkpatrick & Lockhart Nicholson Graham LLP
`10100 Santa Monica Boulevard, 7th Floor
Los Angeles, California 90067
(310) 552-5000
Fax: (310) 552-5001
E-mail: dehling@king.com
acamron@king.com
Jeff A. Harrison
Karns & Karabian
900 Wilshire Boulevard, Suite 530
Los Angeles, California 90017
(213)680-9522
Fax: (213) 627-3602
E-mail: jarrison@kamskarabian.com
Western Area Power Administration
John D. Bremer
Western Area Power Administration
12155 W. Alameda Parkway
Lakewood, CO 80228-8213
(720) 962-7019
Fax: (720) 962-7009
E-mail: BREMER@wapa.gov
LA-109509 v6 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 9 of 9
PRIVILEGED AND CONFU)ENTLAL
1
CALIFORNIA REFUND CLAIMS
JOINT DEFENSE CONFIDENTIALITY AGREEMENT
THIS AGREEMENT made as of January 20, 2006, among the undersigned
parties ("Parties" and each individually a "Party"), by and through their authorized counsel:
WHEREAS, each of the Parties is a seller of power, whose.sales of power are not
subject to the jurisdiction of the Federal Energy Regulatory Commission ("FBRC'D;
WHEREAS, each of the Parties is and/or was a participant in the FERC
proceeding, San Diego Gas & Electric Company v. Sellers of Energy and Ancillary Services Into
Markets Operated by the California Independent System Operator Corporation and the
California Power Exchange Corporation, FERC Docket Nos. EL00-95, et al. ("FERC Refund
Proceeding"), which was initiated to address whether there may have been unjust and
unreasonable charges for spot market wholesale energy sales by public utilities to the California
Independent System Operator Corporation ("ISO") and/or the California Power Exchange
Corporation ("Cal PX") for the period October 2, 2000 through June 20, 2001;
WHEREAS, a number of the Parties have received, or face a significant
possibility of receiving, claims for damages from Pacific Gas and Electric Company, Southern
California Edison Company, San Diego Gas & Electric Company, the California Electricity
Oversight Board and other entities (collectively, "Claimants") related to sales or exchanges of
power for the period May 1, 2000 through June 20, 2001 to the ISO, the Cal PX and/or the
California Energy Resources Scheduling Division ("CERS") of the California Department of
Water Resources (such claims are hereinafter referred to as "California Proceedings");
WHEREAS, the Parties anticipate that a number of the Parties which are not
California governmental entities may receive similar claims for damages from the Claimants
related to sales or exchanges of power for the period May 1, 2000 through June 20, 2001 to the
ISO, the Cal PX and CERS (such claims are hereinafter referred to as "Other Proceedings");
WHEREAS, the Parties have common interests and issues with respect to said
FERC Refund Proceeding, California Proceedings and, Other Proceedings (collectively the
"Refund Proceedings"), and believe communication, the exchange of information, documents
and other materials (including attorney work product); and certain other cooperative efforts
between the Parties and their counsel has been and continues to be reasonably necessary to
accomplish the purposes for which the Parties have retained or consulted with their respective
counsel;
WHEREAS, the Parties recognize that state and federal 'courts have endorsed the
joint defense and common interest exceptions to the general rule that no attorney -client privilege
attaches to communications made in the presence of third parties;
LA-109509 v6 Page 1 of 12
WHEREAS, the Parties intend that the term "co-defendant," which is often the
tern applied to the joint effort group in reported court cases relating to the common interest and
joint defense privileges, be construed broadly to include the group denoted "Parties" herein
inasmuch as the Parties have mutual concerns and interests in the Refund Proceedings despite
the fact that one or more of the Parties may appear in different capacities in the Refund
Proceedings;
WHEREAS, the Parties, along with certain other sellers of power which are also
not subject to FERC jurisdiction (the "Cooperating Other Seller(s)"), have engaged in a joint
defense effort throughout the FERC Refund Proceeding, and in order to avoid confusion given
that the Claimants seek or may seek to raise their claims in one or more additional forums, the
Parties seek herein to memorialize the understanding of that joint defense effort by the Parties on
a continuing basis throughout all of the Refund Proceedings;
WHEREAS the Parties understand that some Parties may have additional
defenses in one or more of the Refund Proceedings, but that the Parties' positions and/or
interests in connection with the Refund Proceedings are on thewhole the same or substantially
similar;
WHEREAS, in order to aid and promote adequate representation and to achieve
efficiencies and cost reductions, the Parties have participated, along with the Cooperating Other
Sellers, in a joint common and cooperative defense to the Refund Proceedings, and the Parties
intend to continue to participate in such a joint common and cooperative defense to the Refund
Proceedings without such Cooperating Other Sellers;
WHEREAS, the Parties also desire to encourage the free and candid exchange of
information relating to the Refund Proceedings among counsel in confidence and on a reciprocal
basis, and without a waiver of the attorney -client privilege, protection as attorney work product,
or any other privilege or exemption protecting the information from discovery, disclosure,
misuse for any business or competitive purposes, or use in the Refund Proceedings for any
purpose beyond the defense of claims seeking refunds;
WHEREAS, the Parties wish to set forth the terms and conditions under which
the Parties have had and will continue to have access to such documents, materials, and
information, which may include confidential information, attorney -client privileged
communications, and attorney work product, in a manner that preserves the confidentiality and
protected status, as the case may be, of the documents, materials, and information;
WHEREAS, nothing in this Agreement is intended to conflict with any Parry's
interest in receiving independent, vigorous and separate representation;
WHEREAS, nothing in this Agreement is intended to create an attorney -client
relationship between any Party and any counsel retained by any other Party;
WHEREAS, nothing in this Agreement applies to any information or documents
once formally produced by a Party or obtained from a Party pursuant to formal discovery;
LA-109509 v6 Page 2 of 12
WHEREAS, the Parties recognize that a number of the Parties were also
purchasers of power from the ISO, Cal PX and CERS in the period between May 1, 2000 and
June 20, 2001 and, therefore, may have counterclaims or cross -claims against one or more other
Parties and/or one or more of the Claimants related to the Refund Proceedings, and that such
Parties' participation in this Agreement (including any and all joint efforts undertaken among
one or more of the Parties prior to the date of this Agreement) shall not be deemed to be a waiver
or compromise of any such counterclaims or cross -claims;
NOW, THEREFORE, in consideration of the promises and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged by each of the Parties, each Parry does hereby confirm existing oral
agreements and further covenants and agrees as follows:
1. Ongoing Joint Defense. The Parties agree that all efforts undertaken collectively by any
two or more of the Parties, and their respective counsel, in connection with or in response
to or pursuant to any of the Refund Proceedings prior to the date of this Agreement were
and shall be construed to be conducted pursuant to this Agreement and subject to the
joint interest and/or joint defense and other applicable privileges.
2. Cooperation in Joint Defense. The Parties agree that the Parties, and their respective
counsel, shall cooperate, to the extent possible and consistent with each Party's and each
counsel's legal and ethical obligations, in the joint investigation and/or joint defense of
the Refund Proceedings. The Parties intend that the cooperation may include, but is not
necessarily limited to, the sharing of thoughts, analyses and impressions of the Parties
and.their counsel, the informal sharing of documents and other information between the
Parties without the need for formal discovery requests, coordination of discovery efforts,
and coordination of legal efforts directed to parties other than the Parties to this
Agreement. All such information, thoughts, analyses, impressions; documents,
interviews, legal memoranda, coordination and other activities or materials shared
pursuant to this Agreement shall be referred to as "Shared Information."
3. Limitation on Use and Disclosure of Shared Information. Each Parry agrees to receive
and hold in strictest confidence any oral or written Shared Information that has been or
will be disclosed to it pursuant to this Agreement by any other Party, to use the Shared
Information for the purpose of defending the recipient Party in the Refund Proceedings
(and not for the purpose of asserting refund claims, including counter -claims and/or cross
claims for refunds among the Parties), and to take all steps necessary to maintain the
confidentiality of the Shared Information, including, but not limited to, claiming all
applicable privileges when receiving a subpoena,request or demand for documents Iby an
entity not a Party to this agreement. The Parties agree that the exchange of Shared
Information between or among any Parties has been and will be made in reliance on and
in consideration of the Parties' mutual assurances and agreement that the Shared
Information will be kept privileged and confidential and will not be disclosed.
Information shall be deemed Shared Information whether it is disclosed directly or
indirectly between and among the Parties themselves. The recipient Party shall only
disclose such Shared Information to: (a) counsel of Parties; (b) those of the Parties' or
LA-109509 va Page 3 of 12
their counsels' employees who have a need to know such information in order to assist in
the representation of the recipient Parties in the Refund Proceedings; (c) Authorized
Recipients as defined in Paragraph 9; or (d) if compelled to do.so by a court or agency of
competent jurisdiction. The Parties agree that the use and disclosure of Shared
Information is limited solely to defending the Parties against affirmative refund claims or
pursuing counterclaims against any or all of the Claimants. Each Party to this Agreement
represents, warrants and agrees that each employee, consultant, expert, witness, agent, or
attorney to whom Shared Information is disclosed pursuant to this Agreement does not
and shall not perform any functions wherein their work will involve actual or potential
direct affirmative refund claims in the Refund Proceedings on behalf of any or all of the
Claimants against the Parties, as distinguished from (a) cross or counter claims among
Parties to this Agreement or (b) actual or potential affirmative refund claims by a Party
against any of the Claimants in the FERC Refund Proceeding. Each Party will be
responsible for any violations of the Agreement by any persons or entities to whom it
provides Shared Information. This Agreement is understood to apply to all Parties, their
employees, agents, successors, assigns, and attorneys (including any and all attorneys
who have or shall represent any of the Parties in connection with any of the Refund
Proceedings).
4. Information Not Subject to Agreement. The provisions of Paragraph 3 shall not apply to
Shared Information that is now, or hereafter becomes, public information without
violation of this Agreement
5. Shared Information "For Attorneys Only" Any Party providing Shared Information,
either written or oral, may provide such Shared Information "For Attorneys Only," in
which case Shared Information shall be disclosed only to counsel for the Refund
Proceedings.
6. Identification of Shared Information. For the elimination of confusion, henceforth all
written Shared Information, including, without limitation, emails and other electronically
transmitted information, should identify the Party providing the information and also be
clearly labeled with the legend "Privileged and Confidential Joint Defense Material —
California Refund Claims Joint Defense Agreement," or with a substantially similar
legend, and with the additional designation of "For Attorneys Only" if necessary.
Inadvertent failure to label Shared Information in accordance with this paragraph shall
not be deemed a waiver by the disclosing Party of the protections of this Agreement.
Shared Information disclosed prior to the date of this written Agreement shall be deemed
to be protected pursuant to the terms of this Agreement notwithstanding the omission of a
legend otherwise called for by this paragraph.
7. Addition of Parties to Agreement. In addition to the original Parties to this Agreement,
additional entities or persons may become Parties to this Agreement, subject to a 90
percent vote of the existing Parties and subject to the conditions in Paragraph 8. Notice
of a vote on an additional entity's or person's intent to execute this Agreement shall be
circulated to the other Parties to this Agreement in accordance with Paragraph 30. The
Parties shall vote by e-mail by the deadline stated in the notice, which shall in no event
LA-109509 v6 Page 4 of 12
be less than ten (10) days from the date notice of the vote was given. A Party's failure to
vote shall be considered a vote in favor of the additional Party. Any such additional
Party shall be required to execute this Agreement in accordance with Paragraph 29, and a
copy of the Agreement as executed by such additional Party shall be circulated to the
other Parties to this Agreement in accordance with Paragraph 30.
8. Common Interest. The Parties acknowledge that the common interests they share with
respect to this Agreement arise from their status as non-FERC jurisdictional sellers of
power and are adverse to the interests of Claimants who may support the filing of direct
affirmative refund claims against the Parties. The Parties acknowledge andaffirm that
based on their status as non-FERC jurisdictional sellers or potential fellers of wholesale
electricity in California and as targets or potential targets of direct affirmative refund
claims in the Refund Proceedings, among other factors, the Parties share common
interests in defending the allegations asserted in the Refund Proceedings.
9. Disclosure of Information to a Non -Party "Authorized Recipient." If at any time a Party
intends to disclose any Shared Information with a non -Party, including without limitation
any Cooperating Other Sellers, outside consultants, experts, witnesses, or other agents,
the non -Party must be informed of the existence of this Agreement, and each individual
to whom Shared Information is to be disclosed shall execute an Acknowledgement of the
California Refund Claims Joint Defense Agreement, attached hereto as Exhibit A,
making this non -Party an "Authorized Recipient." Each Authorized Recipient must
represent and warrant that he or she does not and shall not perform any functions wherein
their work will involve actual or potential direct affirmative refund claims in the Refund
Proceedings on behalf of the Claimants, as distinguished from (a) cross or counter claims
among Parties to this, Agreement or (b) actual or potential affirmative refund claims by a
Party against any of the Claimants in the FERC Refund Proceeding. Immediately
following execution of such Acknowledgement and before disclosure of Shared
Information to such Authorized Recipient, such signed Acknowledgement must be
circulated among the Parties to this Agreement in accordance with Paragraph 30. Any
Party wishing to challenge an Authorized Recipient must notify all other Parties of such
such challenge, by e-mail, within ten (10) days after the Acknowledgement is circulated.
Parties shall cast their votes, by e-mail, within two (2) business days from the date of the
e-mail giving notice of such challenge. A Party's failure to vote will be construed as a
vote against the challenge. Exclusion of any challenged Authorized Recipient shall be
based on a simple majority vote. If there is no such challenge within ten (10) days after
Acknowledgement is circulated, Shared Information may be disclosed to the Authorized
Recipient. Nothing in this paragraph restricts'any Party from disclosing its own
documents and information to anyone, including consultants and experts, provided that
such disclosure does not include Shared Information produced by another Party and
protected by this Agreement.
10. Challenee of Parties. If any Party to this Agreement ("Challenging Party") believes that
another Party to this Agreement, or that Parry's employees, agents, successors, assigns,
experts, Authorized Recipients or consultants ("Challenged Party") has a conflict of
interest that prevents or hinders any of the purposes of this Agreement, or for any other
LA-I09509 v6 Page 5 of 12
reason should not be a Party to this Agreement, the Challenging Party or Parties may
request in writing, in accordance with Paragraph 30, that the Challenged Party or Parties
be excluded from this Agreement. Upon such a written request, a vote will be held by the
Parties to this Agreement other than the Challenging Party or Parties and the Challenged
Party or Parties, as to whether the Challenged Party or Parties should be excluded.
Exclusion of any Challenged Party will be based on a simple majority vote. Such vote
shall be held by e-mail within the voting deadline stated in the request, which shall in no
event be less than 10 days from the date notice of the request was given. A Party's failure
to vote will be construed as a vote against the challenge. Any Challenged Party so
excluded from this Agreement shall automatically be deemed to have withdrawn from
this Agreement and the provisions of Paragraphs 15, 17 and 23 shaW pply.
11. No Requirement of Disclosure. No Party to this Agreement is required to disclose any
Shared Information to any other Party. Nor is any Party required to disclose Shared
Information to any or all other Parties to this Agreement. Nothing in this Agreement
prolubits any Party from disclosing Shared Information to any other Party or Parties
without disclosing it to all Parties.
12. No Limitation on Party's Disclosure of Its Own Information. Nothing in this Agreement
shall limit the right of any Party to use, or to disclose to anyone, any of its own
documents or information, or any documents or information obtained independently and
not pursuant to this Agreement.
13. Work Product Protection. All documents and materials created by, among or under the
direction of counsel for any Party or any group of Parties to this Agreement related in any
way to the Refund Proceedings shall be deemed to be attorney work product of each
Party whose counsel was involved in its creation.
14..Non-Waiver of Privilege. The disclosure of Shared Information among the Parties
pursuant to this Agreement shall not be deemed to be: (a) a "subject matter" waiver of
any attorney -client, work product or other privilege or protection otherwise applicable to
any such Shared Information; or (b) any waiver of any attorney -client, work product or
other privilege as to any person whether or not they are a Party to this Agreement at the
time of such disclosure.
15. Continuing Duties. The obligations of this Agreement shall continue as to all Shared
Information received pursuant to this Agreement, -notwithstanding any withdrawal from
or termination of this Agreement.
16. Notice Before Disclosure. If any person who is not a Party to this Agreement, by any
discovery request or other formal or informal process, requests or demands any Shared
Information from any Party, or if any Party learns of any actual disclosure of Shared
Information, the Party or counsel receiving such request or demand, or learning of such
actual disclosure, shall immediately notify all other Parties to this Agreement in writing
in accordance with Paragraph 30. Both the Party which originally disclosed the Shared
Information and the recipient of the demand or request agree to undertake the necessary
LA-109509 v6 Page 6 of 12
steps to assert all applicable privileges and rights to protect the confidentiality of the
Shared Information, unless the Parties mutually agree to disclose the Shared Information.
17. Withdrawal. Any Party may withdraw from this Agreement upon five (5) days' written
notice to the other Parties in accordance with Paragraph 30, which notice shall be
accompanied by: (a) a return to each disclosing Party or its counsel of all documents
obtained in hard copy pursuant to this Agreement, without retaining any copies,
summaries or extracts thereof, or any other memorialization of information derived from
the Disclosing Parties documents; or (b) a written certificate of destruction confirming
under oath that all such documents have been destroyed. Within ten (10) days after such
notice of withdrawal, all other Parties shall: (a) return to the withdrawmg Party or its
counsel all of the withdrawing Party's documents obtained in hard copy pursuant to this
Agreement, without retaining any copies, summaries or extracts thereof; or (b) provide a
written certificate of destruction confirming under oath that all such documents have
been destroyed. The time for returning documents or certifying destruction may be
extended with written consent of the Party whose documents are involved. Documents
containing Shared Information need not be returned upon withdrawal if they were
generated jointly by the Parties, or a group of the Parties, in connection with the defense
of the Refund Proceedings. Upon withdrawal, no Party shall be entitled to return of its
electronic documents or data, but such electronic documents and data shall be maintained
in strictest confidence by all Parties in accordance with this Agreement after withdrawal.
All Parties and counsel shall continue to be obligated to maintain at all times the
privileged and confidential nature of all information obtained from another Party
pursuant to this Agreement despite any withdrawal from or termination of this
Agreement by any Party.
18. Conflict of Interest and Disqualification. Nothing in this Agreement shall create a
conflict of interest so as to require the disqualification of any counsel from the
representation of the Party it represents in any matter, including without limitation the
Refund Proceedings, and the Parties hereby waive any such conflict of interest. It is
agreed that no attorney who has entered into the Agreement shall be disqualified from
examining or cross-examining any Ply who testifies at any proceeding, merely because
of such attorney's participation in the Agreement or withdrawal from the Agreement.
The Parties understand and acknowledge that they have the right to retain separate
counsel to advise them on conflict of interest and disqualification issues relating to this
Agreement.
19. Shared Information. The Parties and their counsel agree that neither the materials
received from another Party pursuant to this Agreement, nor the contents thereof, will be
used by the recipient Party as evidence in any proceeding whatsoever, including without
limitation the Refund Proceedings, unless: (a) such information is obtained or produced
independent of the exchange of information under this Agreement; or (b) the disclosing
Party consents in writing to such use of its material. Nothing in this paragraph is
intended to restrict a Party from using its own Shared Information in any proceeding,
whether related or unrelated to the Refund Proceedings.
LA-109509 v6 Page 7 of 12
20. Limitation of Duties and Conflicts. Parties understand that they are represented only by
their own attorneys in this matter, and that while attorneys representing the other Parties
have a duty to preserve the confidences disclosed to them pursuant to the Agreement,
each attorney will be acting only as the attorney for his respective client and will owe a
duty of loyalty only to his or her own client. Each Party knowingly and intelligently
waives any conflict of interest that may arise from counsel for any Party, other than their
own attorney, examining them at any proceeding in the Refund Proceedings.
21. Confidentiality of Agreement. This Agreement itself shall be maintained in confidence
unless: (a) its production is required by legal process or applicable laws; (b) its disclosure
is needed to support a claim of privilege arising from the Agreements or (c) its disclosure
is necessary to enforce the Agreement.
22. Iniunctive Relief. Parties acknowledge that disclosure of any materials or information in
violation of this Agreement will cause the Parties hereto to suffer irreparable harm for
which there is no adequate legal remedy. Each Party hereto acknowledges that
immediate injunctive relief is the appropriate and necessary remedy for any violation or
threatened violation of the Agreement. Such injunctive relief shall be the sole and
exclusive remedy for any violation or threatened violation of the Agreement.
23. Continuation of Obligations. The obligations of this Agreement shall continue
notwithstanding a Party's withdrawal from this Agreement or any conclusion or
resolution as to any Party hereto of the Refund Proceedings or any future proceedings
arising from or relating to them. Parties and their counsel agree to continue to preserve
the confidentiality and limited permissible use, as provided for in this Agreement, of any
Shared Information received under this Agreement following any such withdrawal,
conclusion, or resolution.
24. Specific Waiver. Any waiver in any particular instance of the rights and limitations
contained herein shall not be deemed, and is not intended to be, a general waiver of any
rights or limitations contained herein and shall not operate as a waiver beyond the
particular instance.
No Party's participation in this Agreement (including any and all joint efforts undertaken
among one or more of the Parties prior to the date of this Agreement) shall be deemed to
be a waiver or compromise of any counterclaims or cross -claims such Party may have
against one or more other Parties and/or of one or more of the Claimants related to the
Refund Proceedings.
25. No Admissions. No part of this Agreement shall constitute or be interpreted or construed
as an admission by the Parties of any liability under any federal, state or local law or that
any of the Parties is in violation of, or has ever violated, any federal, state or local laws,
rules or regulations.
26. No Agency or Partnership. This Agreement shall not create any agency, partnership, or
similar relationship among the Parties. No Party shall have any authority to waive any
LA-109509 v6 Page 8 of 12
applicable privilege or doctrine on behalf of any other Party. Nor shall any waiver of any
applicable privilege or doctrine by the consent of any Party be construed to apply to any
other Party.
27. Settlement. Each Party intends to defend itself vigorously in the Refund Proceedings.
Each Party is.free to seek to have itself dismissed from the Refund Proceedings. Each
Party retains the right, if it so chooses, to enter into a settlement with respect to the
Refund Proceedings at any time with one or more of the Claimants. Each Party agrees to
notify the other Parties immediately in writing in the event that any settlement related to
the subject matter of the Refund Proceedings is reached with one or more of the
Claimants known to be filing an affirmative case claiming refunds ii the Refund
Proceedings. Subject to Paragraph 16, the Parties agree that, at no time, including but not
limited to during or following any settlement negotiations with one or more of the
Claimants known to be filing an affirmative case claiming refunds in the Refund
Proceedings, or after any settlement with one or more of the Claimants, shall any Shared
Information be disclosed or provided to one or more of the Claimants known to be filing
an affirmative case claiming refunds in the Refund Proceedings, or their attorneys,
consultants, or experts.
28. Warranty of Sianatories' Authority. Each person whose signature appears below
warrants and guarantees that he or she has been duly authorized and has full authority to
execute this Agreement on behalf of the entity or entities which he or she represents.
29. Execution of Agreement. This Agreement may be executed in counterparts and
constitutes the complete Agreement between the Parties, and may not be amended,
waived or modified except upon the written consent of all Parties who are then Parties to
this Agreement.
30. Notice. In any provision of this Agreement requiring notice to the Parties, such notice
shall be given in the manner stated in this paragraph. Notice to each Party shall be given
to the persons, addresses and facsimile numbers identified in Exhibit B to this
Agreement. Notice shall be given in writing via facsimile or electronic transmission.
Notice shall be deemed given on 5:00 p.m. Pacific time of the day of transmission. The
Parties may amend the notice provisions of this paragraph in writing.
31. Cooperating Other Sellers. The undersigned Parties and their respective counsel
understand and agree that it may be in the best interests of the Parties to, from time to
time, consult with and/or cooperate with one or more Cooperating Other Sellers.for the
purpose of advancing the joint defense and/or common_ interests of the Parties. Should
the Parties decide to consult with and/or cooperate with any such Cooperating Other
Seller(s), the Parties may designate one,or more counsel for the respective Parties as
"Liaison Counsel" to communicate on behalf of the Parties with such Cooperating Other
Seller(s). Unless such Cooperating Other Seller shall become a Party hereto pursuant to
the provisions of Paragraph 7 hereof or shall become an Authorized Recipientpursuant to
Paragraph 9 hereof, no such Cooperating Other Seller shall be permitted to receive any
Shared Information unless otherwise expressly provided herein.
LA-I09509 v6 Page 9 of 12
32. Choice of Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to choice of law. However, the
obligations under this Agreement as to the Western Area Power Administration and the
Bonneville Power Administration shall be governed by and construed in accordance with
the laws of the United States of America.
33. Parties and Their Counsel. Exhibit B hereto identifies all current Parties to this
Agreement and their respective counsel in the Refund Proceedings. Pursuant to
Paragraph 3 hereof, this Agreement is understood to apply to all attorneys for each of the
Parties (including any and all attorneys who have or shall represent any of the Parties in
connection with any of the Refund Proceedings). For purposes of clarity, Exhibit B shall
be updated and circulated to all Parties upon the occurrence of the following: (a) the
addition of a Party to this Agreement pursuant to Paragraph 7 hereof, (b) the withdrawal
of a Party from this Agreement pursuant to Paragraph 17 hereof; or (c) any change in the
identity of or contact information for any attorney representing any of the Parties in the
Refund Proceedings. The Parties shall agree upon a single attorney or law firm to be
responsible to maintain a current, updated version of Exhibit B (the "Exhibit B
Coordinating Counsel") which shall be deemed to be the official, operative version of
Exhibit B at any point in time. Unless and until the Parties agree otherwise (by simple
majority vote), the law firm of Kirkpartick & Lockhart Nicholson Graham LLP shall be
and act as the Exhibit B Coordinating Counsel for this Agreement. In the event of the
addition of a new Party to this Agreement or the withdrawal of a Party from this
Agreement, the Exhibit B Coordinating Counsel will update and circulate a revised
Exhibit B to all parties in accordance with Paragraph 30. In the event of any change in
the identity of or contact information for any attorney representing any of the Parties in
the Refund Proceedings, it shall be the responsibility of such Party to promptly notify the
Exhibit B Coordinating Counsel of such change, after which the Exhibit B Coordinating
Counsel will update and circulate a revised Exhibit B to all parties in accordance with
Paragraph 30.
February 17, 2006 By:
(Date) Attor y for:`- ity of Anaheim
(Date)
(Date)
By:
Attorney for:
Inc.
Arizona Electric Power Cooperative,
By:
Attorney for: City of Azusa
LA-109509Y6 Page 10 of 12
32. Choice of Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to choice of law. However, the
obligations under this Agreement as to the Western Area Power Administration and the
Bonneville Power Administration shall be governed by and construed in accordance with
the laws of the United States of America.
33. Parties and Their Counsel. Exhibit B hereto identifies all current Parties to this
Agreement and their respective counsel in the Refund Proceedings. Pursuant to
Paragraph 3 hereof, this Agreement is understood to apply to all attorneys for each of the
Parties (including any and all attorneys who have or shall represent any of the Parties in
connection with any of the Refund Proceedings). For purposes of clarity, Exhibit B shall
be updated and circulated to all Parties upon the occurrence of the following: (a) the
addition of a Party to this Agreement pursuant to Paragraph 7 hereof; (b) the withdrawal
of a Party from this Agreement pursuant to Paragraph 17 hereof; or (c) any change in the
identity of or contact information for any attorney representing any of the Parties in the
Refund Proceedings. The Parties shall agree upon a single attorney or law firm to be
responsible to maintain a current, updated version of Exhibit B (the "Exhibit B
Coordinating Counsel") which shall be deemed to be the official, operative version of
Exhibit B at any point in time. Unless and until the Parties agree otherwise (by simple
majority vote), the law firm of Kirkpartick & Lockhart Nicholson Graham LLP shall be
and act as the Exhibit B Coordinating Counsel for this Agreement. In the event of the
addition of a new Party to this Agreement or the withdrawal of a Party from this
Agreement, the Exhibit B Coordinating Counsel will update and circulate a revised
Exhibit B to all parties in accordance with Paragraph 30. In the event of any change in
the identity of or contact information for any attorney representing any of the Parties in
the Refund Proceedings, it shall be the responsibility of such Party to promptly notify the
Exhibit B Coordinating Counsel of such change, after which the Exhibit B Coordinating
Counsel will update and circulate a revised Exhibit B to all parties in accordance with
Paragraph 30.
Z Z 3 0 l0 By:-jOwvtl-u S- at.;"
(Date) Attorney for: City of Anaheim
By
(Date) Attorney for: Arizona Electric Power Cooperative,
Inc.
zz o _ By: --
(Date) Attorney for: City of Azusa
LA- 109509v6 Page 10 of 12
32. Choice of Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to choice of law. However, the
obligations under this Agreement as to the Western Area Power Administration and the
Bonneville Power Administration shall be governed by and construed in accordance with
the laws of the United States of America.
33. Parties and Their Counsel. Exhibit B hereto identifies all current Parties to this
Agreement and their respective counsel in the Refund Proceedings. Pursuant to
Paragraph 3 hereof, this Agreement is understood to apply to all attorneys for each of the
Parties (including any and all attorneys who have or shall represent any of the Parties in
connection with any of the Refund Proceedings). For purposes of clarity, Exhibit B shall
be updated and circulated to all Parties upon the occurrence of the following: (a) the
addition of a Party to this Agreement pursuant to Paragraph 7 hereof; (b) the withdrawal
of a Party from this Agreement pursuant to Paragraph 17 hereof, or (c) any change in the
identity of or contact information for any attorney representing any of the Parties in the
Refund Proceedings. The Parties shall agree upon a single attorney or law firm to be
responsible to maintain a current, updated version of Exhibit B (the "Exhibit B
Coordinating Counsel") which shall be deemed to be the official, operative version of
Exhibit B at any point in time. Unless and until the Parties agree otherwise (by simple
majority vote), the law firm of Kirkpartick & Lockhart Nicholson Graham LLP shall be
and act as the Exhibit B Coordinating Counsel for this Agreement. In the event of the
addition of a new Party to this Agreement or the withdrawal of a Party from this
Agreement, the Exhibit B Coordinating Counsel will update and circulate a revised
Exhibit B to all parties in accordance with Paragraph 30. In the event of any change in
the identity of or contact information for any attorney representing any of the Parties in
the Refund Proceedings, it shall be the responsibility of such Party to promptly notify the
Exhibit B Coordinating Counsel of such change, after which the Exhibit B Coordinating
Counsel will update and circulate a revised Exhibit B to all parties in accordance with
Paragraph 30.
By:
(Date) Attorney for: City of Anaheim
;�_ e ZGo 6' By: lelJ
(Date) Attorney for: Arizona Electric Power Cooperative,
Inc.
By:
(Date) Attorney for: City of Azusa
LA-109509 v6 Page 10 of 12
zl z3 I o�
(Date)
(Date)
(Date)
2.1 23 O(o
(Date)
By:
Attorney for: City of Banning
By:
Attorney for: Bonneville Power Administration
By:
Attorney for: City of Burbank
By:o�vto
Attorney for: City of Colton
BY:
(Date) Attorney for: Eugene Water and Electric Board
By:
(Date) Attorney for: City of Glendale
(Date)
Attorney for: Modesto Irrigation District
By:
(Date)
Attorney for: Northern California Power Agency
By:
(Date)
Attorney for: City of Pasadena
By:
(Date)
Attorney for: Public Utility District No. 2 of Grant
County, Washington
By:
(Date)
Attorney for: City of Redding, California
LA- 109509v6 Page I of 12
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
By:
Attorney for: City of Banning
By:
Attorney fo - Bonneville Power Administration
By:
Attorney for:
City of Burbank
By:
Attorney for:
City of Colton
By:
Attorney for:
Eugene Water and Electric Board
By:
Attorney for:
City of Glendale
By:
Attorney for:
Modesto Irrigation District
By:
Attorney for: Northern California Power Agency
By:
Attorney for:
City of Pasadena
By:
Attorney for:
Public Utility District No. 2 of Grant
County, Washington
By:
Attorney for:
City of Redding, California
LA-109509 v6 Page 11 of 12
(Date)
(Date)
1G��46j /� 02�06
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
By:
Attorney for: City of Banning
By:
Attorney for: Bonneville Power Administration
By:
1
Attorne for: City of Burbank
By:
Attorney for: City of Colton
By:
Attorney for:
Eugene Water and Electric Board
By:
Attorney for:
City of Glendale
By:
Attorney for:
Modesto Irrigation District
By:
Attorney for: Northern California Power Agency
By:
Attorney for:
City of Pasadena
By:
Attorney for:
Public Utility District No. 2 of Grant
County, Washington
By:
Attorney for: City of Redding, California
LA- 1095090 Page I I of 12
(Date)
By:
Attorney for: City of Banning
By:
(Date) Attorney for: Bonneville Power Administration
By:
(Date) Attorney for: City of Burbank
By:
(Date) Attorney for: City of Colton
- i /- o By: )
(Date) Attorney for: Eugene Water and Electric Board
By:
(Date) Attorney for: City of Glendale
By:
(Date) Attorney for: Modesto Irrigation District
By:
(Date) Attorney for: Northern California Power Agency
By:
(Date) Attorney for: City of Pasadena
L-1A
(Date) Attorney for: Public Utility District No. 2 of Grant
County, Washington
By:
(Date) Attorney for: City of Redding, California
LA-109509 v6 Page 11 of'12
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
By:
Attorney for: City of Banning
By:
Attorney for: Bonneville Power Administration
By:
Attorney for: City of Burbank
By:
Attorney for: City of Colton
By:
Attorney for: Eugene Water and Electric Board
Attorney for: City of Glendale
By:
Attorney for: Modesto Irrigation District
By:
(Date) Attorney for: Northern California Power Agency
By:
(Date) Attorney for: City of Pasadena
(Date) Attorney for: Public Utility District No. 2 of Grant
County, Washington
By:
(Date) Attorney for: City of Redding, California
LA-109509 v6 Page 11 of 12
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
i
rO
(Date)
(Date)
(Date)
(Date)
(Date)
By:
Attorney for: City of Banning
By:
Attorney for: Bonneville Power Administration
By:
Attorney for: City of Burbank
By:
Attorney for: City of Colton
By:
Attorney for: Eugene Water and Electric Board
By:
Attorney for: City of Glendale
g
Attorney for: Modesto Irrigation District
By:
Attorney for: Northern California Power Agency
By:
Attorney for: City of Pasadena
By:
Attorney for: Public Utility District No. 2 of Grant
County, Washington
By:
Attorney for: City of Redding, California
LA-109509 0 Page I 1 of 12
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date) `
(Date)
(Date)
(Date)
By:
Attorney for: City of Banning
By:
Attorney for: Bonneville Power Administration
By:
Attorney for: City of Burbank
Bv:
Attorney for: City of Colton
By:
Attorney for: Eugene Water and Electric Board
By:
Attorney for: City of Glendale
By:
Attorney for: Modesto Irrigation District
l ' �G
By: CC��
Attorney for: Northern California Power Agency
By:
Attorney for: City of Pasadena
By:
Attorney for: Public Utility District No. 2 of Grant
County, Washington
By:
Attorney for: City of Redding, California
LA-109509v6 Page 11 of 12
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
By:
Attorney for:
City of Banning
By:
Attorney for:
Bonneville Power Administration
By:
Attorney for:
City of Burbank
By:
Attorney for:
City of Colton
By:
Attorney for:
Eugene Water and Electric Board
By:
Attorney for:
City of Glendale
By:
Attorney for:
Modesto Irrigation District
By: ^ �� J{. r ✓� A4SlS7�N l C'�E+'; cs i, iSt
Attorney fb&_)NorthernOlifornia Power Agency
By:
Attorney for:
City of Pasadena
By:
Attorney for:
Public Utility District No. 2 of Grant
County, Washington
By:
Attorney for:
City of Redding, California
LA-109509 v6 Page I I of 12
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
(Date)
&
(Date)
(Date)
(Date)
LA-109509 c6
By:
Attorney for:
City of Banning
By:
Attorney for:
Bonneville Power Administration
By:
Attorney for:
City of Burbank
By:
Attorney for:
City of Colton
By:
Attorney for: Eugene Water and Electric Board
By:
Attorney for: City of Glendale
By:
Attorney for: Modesto Irrigation District
By:
Attorney for: Northern California Power Agency
By����1�.1��.9
Attorney for: City of Pasadena
By:
Attorney for: Public Utility District No. 2 of Grant
County, Washington
By:
Attorney for: City of Redding, California
Page 11 of 12
i0
(Date)
Attorney for: City of Banning
By:
(Date)
Attorney for: Bonneville Power Administration
By:
(Date)
Attorney for: City of Burbank
By:
(Date)
Attorney for: City of Colton
By:
(Date)
Attorney for: Eugene Water and Electric Board
By:
(Date)
Attorney for: City of Glendale
By:
(Date)
Attorney for: Modesto Irrigation District
By:
(Date)
Attorney for: Northern California Power Agency
By:
(Date)
Attorney for: City of Pasadena
aI a y / O ul
By: ,
(Date)
Attorney for: ub ' Utility District No. 2 of Grant
County, Wdshington
By:
(Date)
Attorney for: City of Redding, California
LA-109509 v6 Page 11 of 12
By:
(Date) Attorney for: City of Banning
By:
(Date) Attorney for: Bonneville Power Administration
By:
(Date)
Attorney for:
City of Burbank
By:
(Date)
Attorney for:
City of Colton
By:
(Date)
Attorney for:
Eugene Water and Electric Board
By:
(Date)
Attorney for:
City of Glendale
By:
(Date)
Attorney for:
Modesto Irrigation District
By:
(Date)
Attorney for:
Northern California Power Agency
By:
(Date)
Attorney for:
City of Pasadena
By:
(Date)
Attorney for:
Public Utility District No. 2 of Grant
County, Washington
2•t ZL7 z 0
By:
(Date)
Attorney for:
P"of Redding, California
LA-109509 0 Page 11 of 12
�I23I D(n By: ►`��yyrt,�� s. 1 `
(Date) Attorney for: City of Riverside
By:
(Date) Attorney for: Sacramento Municipal Utility District
By:
(Date) Attorney for: City of Santa Clara, California
M.
(Date) Attorney for: State Water Contractors / The
Metropolitan Water District of Southern California
By:
(Date) Attorney for: Turlock Irrigation District
By:
(Date) Attorney for: City of Vernon
By:
(Date) Attorney for: Western Area Power Administration
LA- 109509vv6 Page 12 of 12
By:
(Date) Attorney for: City of Riverside
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(Date) Attorney for: Sacramento Municipal Utility District
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(Date)
Attorney for:
City of Santa Clara, California
By:
(Date)
Attorney for:
State Water Contractors / The
Metropolitan
Water District of Southern California
By:
(Date)
Attorney for:
Turlock Irrigation District
By:
(Date)
Attorney for:
City of Vernon
By:
(Date)
Attorney for:
Western Area Power Administration
LA- 109509v6 Page 12 of 12
(Date)
(Date)
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(Date)
(Date)
By:
Attorney for: City of Riverside
By:
Attorney for: Sacramento Municipal Utility District
Attorney for: City of Santa Clara, California
By:
Attorney for: State Water Contractors / The
Metropolitan Water District of Southern California
By:
(Date) Attorney for: Turlock Irrigation District
By:
(Date) Attorney for: City of Vernon
By:
(Date) Attorney for: Western Area Power Administration
L.A-109509 v6 Page 12 of 12
(Date)
(Date)
(Date)
By:
Attorney for: City of Riverside
By:
Attorney for: Sacramento Municipal Utility District
By:
Attorney for: City of Santa Clara, California
By;
(Date) J Attorney for: State Water Contractors / The
Metropolitan Water District of Southern California
(Date)
(Date)
(Date)
By:
Attorney for: Turlock Irrigation District
By:
Attorney for: City of Vernon
By:
Attorney for: Western Area Power Administration
LA-109509 v6 Page 12 of 12
By:
(Date) Attorney for: City of Riverside
By:
(Date) Attorney for: Sacramento Municipal Utility District
By:
(Date) Attorney for: City of Santa Clara, California
By:
(Date) Attorney for: State Water Contractors '/ The
Metropolitan Water District of Southern California
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(Date) Attoi ey fo : rlock Irrigation Di Vc
By:
(Date) Attorney for: City of Vernon
By:
(Date) Attorney for: Western Area Power Administration
LA- 1095090 Page 12 of 12
(Date) Attorney for: Public Utility District No. 2 of Grant
County, Washington
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(Date)
Attorney for:
City of Redding; California
By:
(Date)
Attorney for:
City of Riverside
By:
(Date)
Attorney for:
Sacramento Municipal Utility District
By:
(Date)
Attorney for:
City of Santa Clara, California
By:
(Date)
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(Date) Attorney for: Turlock Irrigation District
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LA-109509 v6 Page 12 of 12
(Date)
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Attorney for: City of Riverside
By:
(Date) Attorney for: Sacramento Municipal Utility District
By:
(Date) Attorney for: City of Santa Clara, California
By:
(Date) Attorney for: State Water Contractors / The
Metropolitan Water District of Southern California
By:
(Date) Attorney for: Turlock Irrigation District
By:
(Date) Attorney for: City of Vernon
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LA- 109509v6 Page 12 of 12
Updated: March 6, 2006
Exhibit B
City of Anaheim
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
(202)585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncoburn.com
Lucina Moses, Asst. City Attorney
Moses W. Johnson, IV, Deputy City Attorney
Alison Kott, Deputy City Attorney
Anaheim City Attorney's Office
200 S. Anaheim Boulevard, Suite 356
Anaheirn, California 92805
(714) 765-5169
Fax: (714) 765-5123
E-mail: `lmoses@anaheim.net
mjohnson@anaheim.net
akott@anaheim.net
Arizona Electric Power Cooperative, Inc.
Robert D. Rosenberg
Slover & Loftus
1224 Seventeenth Street, N.W.
Washington, D.C. 20036
(202) 347-7170
Fax: (202) 347-3619
E-mail: rdr@sloverandloftus.com
City of Azusa
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
JA-109509 v7 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 1 of 10
Updated: March 6, 2006
(202) 585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncobum.com
Jeffiy F. Ferre
Best Best & Krieger LLP
3750 University Avenue, Suite 400
PO Box 1028
Riverside, California 92502
(951) 686-1450
Fax: (951) 686-3083
E-mail: jef£ferre@bbklaw.com
City of Banning
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
(202) 585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncobum.com
Bonneville Power Administration
Mark W. Pennak
United States Department of Justice
Civil Division, Appellate Staff
Room 7326 MAIN
950 Pennsylvania Avenue, N.W.
Washington D.C. 20530
(202) 514-1673
Fax: (202) 514-9404
E-mail: Mark.Pennak@usdoj.gov
Stephen R. Larson
Peter J. Burger
Office of General Counsel
Bonneville Power Administration
P.O. Box 3621, L-7
Portland, Oregon
(503)230-4201
Fax: (503) 230-7405
LA-109509 v7 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 2of10
Updated: March 6, 2006
E-mail: srlarson@bpa.gov
pjburger@bpa.gov
City of Burbank
Terry B. Stevenson
Sr. Assistant City Attorney
275 E. Olive Ave.
P.O. Box 6459
Burbank, California 91510-6459
(818) 238-5702
Fax: (818) 238-5724
E-mail: ttevenson@ci.burbank.ca.us
Jon R. Stickman
Duncan & Allen
1575 Eye Street, N.W.
Washington, D.C. 20005
(202)289-8400
Fax: (202) 289-8450
E-mail: jrs@duncanallen.com
City of Colton
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
(202) 585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncobum.com
Gregory Powers
Best Best & Krieger LLP
5 Park Plaza, Suite 1500
Irvine, CA 92614
(949) 263-2600
Fax: (949) 260-0972
E-mail: Gregory.powers@bbklaw.com
Eugene Water and Electric Board
Thomas M. Grim
LA-109509 0 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 3 of 10
Updated: March 6, 2006
Cable Huston Benedict Haagensen & Lloyd LLP
1001 SW Fifth Avenue, Suite 2000
Portland, OR 97204
(503) 224-3092
Fax: (503) 224-3176
E-mail: tgrim@chbh.com
City of Glendale
Steven G. Lins
Senior Assistant City Attorney
City of Glendale
613 East Broadway, Suite 220
Glendale, CA 91206-4394
(818) 548-2080
Fax: (818) 547-3402
E-mail: slins@ci.glendale.ca.us
Jon R. Stickman
Duncan & Allen
1575 Eye Street, N.W.
Washington, D.C. 20005
(202)289-8400
Fax: (202) 289-8450
E-mail: jrs@duncanallen.com
Modesto Irrigation District
Sean M. Neal
Jim Pembroke
Pete Scanlon
Duncan, Weinberg, Genzer & Pembroke, P.C.
915 L Street, Suite 1410
Sacramento, CA 95814
(916) 498-0121
Fax: (202) 467-6379
E-mail: stun@dwgp.com
jdp@dwgp.com
pjs@dwgp.com
Joy Warren
Assistant General Counsel
Modesto Irrigation District
P.O. Box 4060
LA-109509 v7 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 4 of 10
Updated: March 6, 2006
Modesto, California 95352
(209) 526-73 89
Fax: (209) 526-7383
E-mail: JoyW@mid.org
Northern California Power Agency
Robert C. McDiannid
Lisa Dowden
Meg Meiser
William S. Huang
Rebecca Baldwin
Spiegel & McDiarmid
1333 New Hampshire Avenue, NW
Washington, DC 20036
(202)879-4000
Fax: (202) 393-2866
E-mail: robert.mcdiarmid@spiegelmcd.com
lisa.dowden@spiegelmcd.com
meg.meiser@splegelmcd.com
william.huang@spiegelmcd.com
rebecca.baldwin@spiegelmed.com
Benjamin T. Reyes
Meyers Nave
555 12th Street, Suite 1500
Oakland, California 94607
(510) 808-2000
Fax: (510) 444-1108
E-mail: breyes@meyersnave.com
City of Pasadena
James H. McGrew
Bruder, Gentile & Marcoux, LLP
1701 Pennsylvania Avenue N.W., Suite 900
Washington, D.C. 20006-5807
(202) 296-1500
Fax: (202) 296-0627
E-mail: jhmcgrew@brudergentile.com
LA-109509 v7 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 5 of 10
Updated: March 6, 2006
Public Utility District No. 2 of Grant County, Washington
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
(202)585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncoburn.com
Ray A. Foianini
Foianini Law Offices
109 Division West
P.O. Box 908
Ephrata, Washingtion 98823
(509) 754-3591
Fax: (509) 754-5076
E-mail: rfoiani@gcpud.org
City of Redding, California
Sean M. Neal
Jim Pembroke
Pete Scanlon
_Duncan, Weinberg, Genzer & Pembroke, P.C.
915 L Street, Suite 1410
Sacramento, CA 95814
(916)498-0121
Fax: (202) 467-6379
E-mail: siren@dwgp.com
jdp@dwgp.com
pjs@dwgp.com
Barry Dewalt
Rick Duvernay
City Attorney's Office
Third Floor
777 Cypress Ave
Redding, CA 96001
(530) 225-4355
Fax: (530) 225-4362
LA-109509 v7 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 6 of 10
Updated: March 6, 2006
City of Riverside
Bonnie S. Blair
Thompson Coburn LLP
1909 K Street, N.W.
Suite 600
Washington, D.C. 20006-1167
(202)585-6900
Fax: (202) 508-1007
E-mail: bblair@thompsoncobum.com
Mark L. Parsons
Susan Wilson
Office of the City Attorney, City of Riverside
3900 Main Street
Riverside, CA 92522
(951)826-5890
Fax: (951)826-5540
E-mail: MParsons@riversideca.gov
S Wilson@riversideca. gov
Sacramento Municipal Utility District
Glen Ortman
Harvey Reiter
Andrew Hughes
Stinson Morrison Hecker LLP
1150 18th Street N.W.
Suite 800
Washington, DC 20036-3816
(202) 728-3016
Fax: (888) 704-8304
E-mail: gortman@stinsonmoheck.com
hreiter@stinsonmoheck.com
ahughes@stinsomnoheck.com
Laura O. Lewis
Senior Attorney
Sacramento Municipal Utility District
6201 S Street
Sacramento, CA 95817
(916)732-6123
Fax: (916) 732-6581
E-mail: llewis@smud.org
u-109509 v7 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 7 of 10
Updated: March 6, 2006
City of Santa Clara, California
Sean M. Neal
Jim Pembroke
Pete Scanlon
Duncan, Weinberg, Genzer & Pembroke, P.C.
915 L Street, Suite 1410
Sacramento, CA 95814
(916) 498-0121
Fax: (202) 467-6379
E-mail: smn@dwgp.com
jdp@dwgp.com
pjs@dwgp.com
Helene L. Leichter, Assistant City Attorney
Roland D. Pfeiffer, Assistant City Attorney
Michael Downey, City Attorney
Office of the City Attorney
City Santa Clara dba Silicon Valley Power
1500 Warburton Avenue
Santa Clara, California 95050
(408) 615-2230
(408) 249-7846
E-mail: hleichter@siliconvalleypower.com
rpfeifer@siliconvalleypower.com
mdowney@siliconvalleypower.com
State Water Contractors / The Metropolitan Water District of Southern California
Diana Mahmud
Legal Department
Metropolitan Water District of Southern California
P.O. Box 54153
Los Angeles, California 90054-0153
(213) 217-6985
Fax: (213) 830-4581
E-mail: dmahmud@mwdh2o.com
Turlock Irrigation District
Jon R. Stickman
Duncan & Allen
1575 Eye Street, N.W.
LA-109509 0 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 8 of 10
Updated: March 6, 2006
Washington, D.C. 20005
(202) 289-8400
Fax: (202) 289-8450
E-mail: jrs@duncanallen.com
Barry F. McCarthy
McCarthy & Berlin, LLP
Suite 501
100 Park Center Plaza
San Jose, CA 95113
(408) 288-2080
Fax: (408) 288-2085
E-mail: bmcc@inccarthylaw.com
Jim Koontz
Griffith & Masuda
P.O. Box 510
Turlock, CA 95381
(209)667-5501
Fax: (209) 667-8176
Email: jkoontz@calwaterlaw.com
City of Vernon
Dennis M. P. Ehling
Ashley J. Camron
Kirkpatrick & Lockhart Nicholson Graham LLP
10100 Santa Monica Boulevard, 71h Floor
Los Angeles, California 90067
(310) 552-5000
Fax: (310) 552-5001
E-mail: defiling@king.com
acamron@king.com
Jeff A. Harrison
Karns & Karabian
900 Wilshire Boulevard, Suite 530
Los Angeles, California 90017
(213) 680-9522
Fax: (213) 627-3602
E-mail: jarrison@kamskarabian.com
LA-109509 v7 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 9 of 10
Updated: Mareh 6, 2006
Western Area Power Administration
John D. Bremer
Western Area Power Administration
12155 W. Alameda Parkway
Lakewood, CO 80228-8213
(720)962-7019
Fax: (720) 962-7009
E-mail: BREMER@wapa.gov
LA-109509 0 Exhibit B
to California Refund Claims Joint Defense Agreement
Page 10 of 10