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Mou/Moa - 2005 - Joint Defense & Confidentiality Agrt/Eaglefield LLC - 9/13/2005 09/13/2005 TUE 02:53 FAX I4J 006/008 - PRIVILEGED AND CONFIDENTIAL -- JOINT DEFENSE AGREEMENT JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT This Agreement is made and entered into by the City of Eagle C'City''), and Eaglefield LLC ("Development"). - - THIS AGREEMENT IS MADE IN REFERENCE TO THE FOLLOWING FACTS: A., The City has filed certain applications for permits to develop certain water rights with the Idaho Department of Water Resources ("IDWR"). These permits have been administratively protested by certain parties. B. In order to comply with City Ordinance 479, the Development has requested that it be allowed to use and take advantage of the City's application(s). The City and the Development have entered into a separate Memorandum of Agreement ("MOAn) which sets forth the Development's' obligations with regard to compliance with City Ordinance 479. C. Among other things, the MOA provides for the City to proceed to take steps to secure the permits and allow the development of the associated water right with the Development paying the costs for the City to do so. , , D. The City and the Development have commOn interests in certain issues of fact and law in connection with the processing of the applications, securing the permit, and dev.eloping the water right. ", IN CONSIDERATION OF THE PROMISES STATED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS: I. Definitions of terms, as used in this Agreement A. The term "City" means the City of Eagle, by and through its authorized representatives. B. The term "Development" means Eaglefield LLC and its authorized representatives. C. The term "party" or "parties" includes the City and the Development. , \ E. The term <<Protest" refers to the protests filed againsNhe City's applications by certain parties. \ F. The tenn <<privileged infonnation" includes, but is not limited to, any of the following which may be the subject of exchanges among legal counsel of parties to this Agreement or those in privy with them: legal theories, ideas, trial strategy, mental impressions, reports of consultuIts or experts hired by any party or counsel, any confidential communications 1 09/13/2005 TUE 02:53 FAX [4J 007/008 as defined by Idaho Rule of Evidence 502, and any other material that may be protected under Idaho law from disclosure for any reason. II. Purpose of this Agreement A. The parties to this Agreement have concluded that the outcome of litigation - associated with the protests and the City. that may adversely impact their property and other - rights and their interests. TIle parties. therefore, have detennined it is within their common interests to, cooperate with each other in the defense of claims arising from the protests and to share certain relevant "privileged information." This sharing of information is intended to advance the mterest of and rendition of professional services to the parties. B. Execution of this Agreement is not an acknowledgement that any claim asserted pursuant to the protests is meritorious or is supported by existing state law. Rather, the parties are entering this Agreement as a prudent measure to allow cooperation in the defense of any such claims where the interests of the City and the Development are similar. . m. SharIng of privileged information A. Although there is no obligation to share information, the parties intend that this Agreement will enable them, to the fullest extent permitted by law, to share certain privileged information without waiving any privileges or other exemptions from disclosure that might attach hereto, whether under the common lnw, the Federal or Idaho Rules of Civil Proced:ure, the Federal or Idaho Rules of Evidence, or any other rule or statute. i , : B. Disclosure of privileged info~tion by the Development shall not be made to any person or entity, other than attorneys representing the City or by the Development and their authorized representatives. Outside experts and consultants receiving copies of a.ny privileged information shall agree to keep such infonnation confidential and shall sign a confidentiality agreement, agreeing to keep the information in accordance with this Agreement. In furtherance of this Agreement, communication between the Parties shall be primarily through undersigned counselor, on specific matters, at the direction of counsel. C. Privileged infonnation shared pursuant to this Agreement sball be kept in confidence and shall be used by legal counsel for the parties exclusively for the preparation of defenses against the protests. The confidentiality of this information shall survive termination of this Agreement. IV. Execution of the Agreement \ 1\ A. This Agreement shall be binding on all successors and assigns of the parties. B. This Agreement is executed in duplicate. . Each Agreement with an original signature of each party shall be original. 2 09/13/2005 TUE 02:53 FAX I4J 008/008 - IN WITNESS THEREOF, THE PARTIES EXECUTED THIS AGREEMENT ON THE DATE FOLLOWING THEIR RESPECTIVE SIGNATURES: CITY OF EAGLE - ~. - 7-/3-o-s- Moore Smith Buxton & Turcke, Chartered Attorneys for" City of Eagle ...- , , , i .' , I ,\ , 3