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HomeMy WebLinkAbout1998-165f RESOLUTION N0.98-1b5 A RESOLUTION APPROVING CONFIDENTIALITY AGREEMENT CONCERNING SETTLEMENT DISCUSSIONS WHEREAS, the City is a party to a lawsuit filed in the United States District Court for the District of Minnesota captioned The Sierra Club Northstar Chapter, et al v. Pena. et al; Civil File No.: 4-96-547; this litigation concerning a proposed new bridge crossing over the St. Croix River near the City; and, WHEREAS, the parties to this litigation have expressed a desire to engage in settlement discussions and in order and in consideration of the benefit to the parties that would be derived from frank and open discussions, it appears in the best interest of the City that a Confidentiality Agreement be approved that would prevent any party from using information gained through the settlement discussions and negotiations to further their interests in the ongoing litigation. NOW, THEREFORE, BE IT RESOLVED, that the Agreement concerning settlement discussions as prepared by the United States Justice Department and approved by the City Attorney and attached to this Resolution as Exhibit "A" be and the same hereby is approved and the City Attorney is authorized to executed the Agreement on behalf of the City. Enacted by the City Council of the City of Stillwater this 16`" day of June, 1998. CITY OF STILLWATER ~ F J L. e ayor ATTEST: Morli eldon, Clerk AGREEMENT CONCER1~tIiiTG SETTLEMENT DISCUSSIONS PARTIES This Agreement is made between and among the United States of America, by and through the United States Department of Justice, the State of iYlinnesota, the State of Wisconsin, the City of Stilh~-ater, Minnesota, the City of Oak Park Heights, Minnesota, the. Metropolitan Council, and all other parties that sign this Agreement after its effective date. RECITALS WHEREAS, some of the Parties to this Agreement are parties to a lawsuit filed in the. United States District Court for the District of Minnesota, captioned Sierra C1nh North tar hapte~ et al. v. Pena. et al., Civil No. 4-96-547; this litigation concerns a proposed new bridge crossing over the St. Croix River (Project); and WI~REAS, the Parties have expressed a desire to engage in settlement negotiations. NOW, THEREFORE, in accordance with the mutual covenants and agreements herein, and with full authority to enter into this Agreement and to be bound thereby, the Parties hereby agree as follows: AGREEMENT A. Definitions For the purposes of this Agreement: 1. The term "discussion'' or "discussions" includes all communications, meetings, expert or consultant reports, appraisals, telephone communications, correspondence, memoranda, and any and all documents relating to the Parties' efforts to reach a negotiated resolution of the issues raised in the referenced lawsuit, whether written or oral between or among the Parties. All such discussions between or among the Parties occurring on or after the date this Agreement is signed aze considered discussions encompassed by this Agreement. This Agreement shall remain in force and in full effect until all appeals of any present lawsuit are completely exhausted. ?. The terrri~ "Party" or "Parties" include the Department of Interior and the Federal Highway Administration of the United States government, including all of their respective employees, agents, officers, representatives, attorneys, experts, and consultants, and the Department of Transportation of the State of iVlinnesota, the Department of Transportation of the State of Wisconsin, the City of Stillwater, Minnesota, the City of Oak Park Heights, Minnesota, and the tiletropolitan Council, including all of their respective employees, agents, officers, representatives, attorneys, experts, and consultants. For all additional Parties who sign this Agreement, the term EXHIBIT "A" (Page 1 of 4) "Pam-" or "Parties" includes all of their respective employees, agents, officers, representatives, attorneys, experts, and consultants. ~~ B. Terms of Agreement ~. ~ The promises to abide by this Agreement are made in consideration. of the benefit to the Parties of frank and open discussions..When sued below by an authorized representative of each Pam-. the terms of this Agreement will be binding upon all parties and fully enforceable against any of the Parties. 4. The Parties agree that no other entity will be permitted to engage in discussions under this Agreement unless that entity first signs and becomes a Party to this Agreement. 5. Any Party may terminate the settlement discussions without consequence and for any reason. Participation in these settlement negotiations shall not constitute a waiver of -any Legal positions, rights or claims of the parties, nor shall either participation in these discussions or the discussions themselves constitute the basis for any Iegai position, rights or claims of any of the Parties. 6. No Party shall be bound by anything said or done during the negotiations unless and until a settlement agreement is reached, reduced to writing, and signed by the Parties or their duly authorized representatives. 7. The Parties agree that all settlement discussions, including any statements made or documents prepared by any Party for such negotiations, are privileged, inadmissible and nondiscoverable, and shall not be disclosed in any subsequent proceeding or document request or construed for any purpose as an admission against interest in any. pending or future judicial or administrative proceeding. 8. The Parties agree that all settlement discussions that occur shall be considered "compromise negotiations'' pursuant to Rule 408 of Federal Rules of Evidence, and applicable State or common law- provisions. The Parties further agree, except as otherwise provided herein, (i) that such discussions shall be inadmissible in any pending or future judicial or. administrative proceeding involving any of the Parties, regardless of whether such proceeding is brought in a state or federal forum_ and (ii) that no Party will seek to introduce discussions falling within the terms of this Agreement in any civil discovery requests or motions, nor reference such discussions in any legal proceedings. Notwithstanding the last sentence of Rule 408 of the Federal Rules of Evidence, or any similarly applicable state or common law provisions, the Parties agree that discussions which would be admissible under those provisions shall nonetheless be inadmissible, even if offered for a purpose other than liability or the validity or invalidity of a claim, including impeachment. EXHIBIT "A" (Page 2 of 4) 9. Notwithstanding the foregoing, the Parties agree that discussions otherwise made inadmissible or non-discoverable by the terms of this Agreement may be rendered admissible or discoverable, or both, if all Parties agree thereto in ~yYitina. F~.uther, each Party shall retain the right to offer in any legal proceeding expert or consultant reports or appraisals prepared at any time by its own experts or consultants. The Parties also agree that evidence which both (i) exists independently of the discussions (as defined above) and (ii) is also otherwise admissible or subject to discovery outside of those discussions shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in these discussions. 10. Should a request be made of the United States under the Freedom of Information Act for information related to discussions (as defined in this Agreement), the federal Party will contact the other Parties before responding in order to determine ~.vhether any of the information requested is commercial or financial information which is confidential or privileged subject to 5 U.S.C. § ~22(b)(4). Should a request be made of any other Party to this agreement under any state law equivalent of the Freedom of Information Act for information related to the discussions (as defined in this Agreement), that Parry will contact the other parties prior to replying to such a request. 1 1. This Agreement shall become effective upon execution by all of the following parties: the United States, the States of Minnesota and Wisconsin, the Cities of Stillwater and Oak Pazk Heights, and the Metropolitan Council. 12. Execution of this Agreement by any Party includes an express representation that the signatory of the Agreement is duly authorized to execute the Agreement on behalf of the Party, and that the terms of the Agreement are binding on. and fully enforceable against, all signing. Parties. N WITNESS WHEREOF, the Parties have executed this Agreement in separate original counterparts, which, when alt Parties have so sinned, shall be deemed a single agreement as of the date of the last signatory. Date: L / 15 ~' ~~ UNITED STATES OF AMERICA _~/'~ l PAUL F. HOLLEMAIV U.S. Department of rustice STATE OF MI~iNESOTA Date: - ' - ,._ i'~ ,~ ~ :l ~' WILLIAM SIERKS Assistant Attorney General Minnesota Attorney General's Office EXHIBIT "A" (Page 3 of 4) 3 r . STATE OF WISCONSIN Date: ~ z. Date: oZ.~ ~ ~ -1 Assistant Attorney General Wisconsin Department of Justice CITY OF STILLWATER By: DAVID T. MA SON Magnuson Law irm CITY OF OAK PARK HEIGHTS By: MARK J. VIERLING Eckberg, Lammers, Briggs, Wolf & Vierling ~TROPOLITAN COUNCIL Date: Date: By: AG: 131034 v i EXHIBIT "A" (Page 4 of 4) 4