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Home My WebLink AboutLW12-314 - Original - Kenyon Disend, PLLC - National Wildlife Federation v. FEMA - 02/14/2012 T cords � K Nn WASHINGTON - = - Document �f M CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to City Clerks Office. All portions are to be completed. If you have questions, please contact City Clerk's Office. Vendor Name: Kenyon Disend, PLLC Vendor Number: JD Edwards Number I, Contract Number: This is assigned by City Clerk's Office Project Name: National Wildlife Federation v. FEMA Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ❑ Contract ® Other: Letter agreement and conflict waiver Contract Effective Date: 2/14/12 Termination Date: N/A Contract Renewal Notice (Days): N/A Number of days required notice for termination or renewal or amendment Contract Manager: Kim Komoto Department: Law Contract Amount: $0.00 Approval Authority: ® Department Director ❑ Mayor ❑ City Council Detail: (i.e. address, location, parcel number, tax id, etc.): As Of: 08/27/14 Michael R.Kenyon Bruce L.Dlsend ® Shelley M.Kerslake ® Karl L.Sand Chris D.Bacha Margaret J,King Bob C.Sterbank Rachel B.Turpin Ann Marie J.Soto February 10,2012 Douglas Ruth Steven Peiffle Assistant City Attorney City Attorney City of Auburn City of Arlington 25 West Main Street PO Box 188 Auburn,WA 9.8001-4998 Arlington,WA 98223-0188 Scott Thomas David Clark Ball City Attorney Assistant City Attorney City of Burlington City of Everett 833 S Spruce St 2930 Wetmore Ave Ste 10-C .Burlington, WA 98233-2810 Everett, WA 98201-4067 Peter Beckwith Tom Brubaker Assistant City Attorney City Attorney City of Federal Way City of Kent 33325 8th Ave. S. 220 Fourth Avenue Federal Way, WA 98003 Kent, WA 98032 Kevin Rogerson William Bloor City Attorney City Attorney . City of Mount Vernon City of Port Angeles P.O. Box 809 321 East 5th Street 910 Cleveland Avenue P.O. Box 1150 Mount Vemon,'WA 98273-9809 City, WA 98362 Kevin Yamamoto Patrick Anderson City of Puyallup City Attorney 333 S. Meridian City of Snoqualmie Puyallup,WA 98371 38624 SE River Street P.O, Box 987 Snoqualmie,WA 98065 Larry Warren City of Renton P.O, Box 626 Renton,WA 98057 Kenyan Disend,M LC I The Municipal Law Firm I [I Front Street South ( Issaquah,WA 98027-3820 (Tel:(425)392.7090 Fax:(425)392-7071 ..1myondisend,com City Attorneys February 10,2012 Page 2 Re: National Wildlife Federation v. FEMA; Case No.: 2:11-ev-02044-RSM Dear Counsel: This letter is to follow up concerning our recent discussions concerning legal representation by our firm of your city ("City"). You have asked us to represent the City in efforts to intervene and defend against the plaintiffs request for a preliminary injunction and other relief sought in the Complaint for Declaratory and Injunctive Relief in the above-referenced litigation including, potentially, matters relating to any request (if made) for re-initiation of consultation between the Federal Emergency Management Agency ("FEMA") and. the National Marine Fisheries Service ("NMFS") concerning the biological effects of FEMA's operation of the National Flood Insurance Program ("NFIP") upon salmon, steelhead, orca species listed as threatened or endangered under the Endangered Species Act, 16 U.S.0 § 1531 et seq. ("ESA"). The above- referenced cause number, and the potentially related re-initiation of consultation, are referred to collectively herein as "the Litigation." We are not being asked to represent your City on a permanent basis,or on other matters,but only with respect to the Litigation. Before providing the requested representation, our firm has chosen to disclose to the City potential areas of future conflict and seek your written consent to such representation. As you may know, other similarly situated cities have also requested representation in the Litigation, including but not limited to the Cities of Arlington, Auburn, Burlington, Everett, Federal Way, Kent, Mount Vernon, Puyallup, Renton and Snoqualmie, And, existing municipal clients of our firm, including Lake Forest Park, North Bend, Orting, Sultan and Tukwila, also desire that our firm represent them in this matter. Further, I also serve as the City Attorney for the City of Lake Forest Park;Mike Kenyon serves as the City Attorney for North Bend; Chris Bacha serves as the City Attorney for the City of Orting; Margaret King serves as the City Attorney for the City of Sultan, and Shelley Kerslake serves as the City Attorney for the City of Tukwila. Currently, there are no legal disputes between your City and any of the other cities named here, and all of the cities are similarly situated and will be similarly affected by the relief requested by the Complaint. It is possible, however(although we believe unlikely),that at some point in the case the various cities' interests may diverge; if a direct conflict arose, we might be required to cease representing any of the parties to the direct conflict. It is also possible (we believe, again, unlikely)that some dispute among the cities may arise unrelated to the above-referenced matter, say, under one of several various interlocal agreements for regional services to which the cities are parties. In such an event, I would not be representing your City in that dispute; your City would be represented by its own counsel; my position as City Attorney, however, would call for j me to continue to represent the City of Lake Forest Park, and the position of Mr. Bacha, Ms. i City Attorneys February 10,2012 Page 3 King,and Ms.Kerslake would call for them to continue to represent their cities. Under the Rules of Professional Conduct applicable to attorneys,I could only do so if. (1)1 reasonably believe(as I do) that I will be able to provide competent and diligent representation to your City in the above_referenced matter, and to Lake Forest Park in any separate matter involving your City (with Mr. Bacha, Ms. King and Ms.. Kerslake likewise providing competent and diligent representation to their cities); (2) the representation is not prohibited by law (it is not); (3) the representation does not involve the assertion of a claim by your City, Lake Forest Park, Orting, Sn1tan, or Tukwila, or other cities named above, against each other when represented by me in litigation or another proceeding before a tribunal (it wouldn't, because your City would be represented in any separate matter by you or another attorney, and other cities represented by their counsel); and (4) your City and the other cities each give informed consent, confirmed in writing. For this 'reason, we are providing this disclosure to your City and other cities that have requested our representation in the Litigation, and asking that they waive aiiy potential conflict .(or appearance of the same) that might arise in the future; from our representation of multiple cities in the above-referenced matter. If your City is willing to waive potential conflicts, and engage Kenyon Disend, PLLC to represent it in the Litigation,please have your Mayor sign this letter,in the space provided below and return it to us evidencing consent to the waiver. In the meantime, because we are interested in providing, and are required to provide, a complete disclosure of any potential conflict, if you have any questions or concerns regarding the scope of our potential representation of your City,please do not hesitate to contact me. If the City confirms its waiver of potential conflicts and request for representation in the Litigation by our firm, we propose to handle the matter as follows. Our goal is to provide an efticient,and economical legal defense while also maximizing the amount of leverage that can be brought to bear by asserting a collective position on behalf of all intervening cities. A single billing number has been established for the work done that collectively benefits all of the cities represented in the Litigation. Work on the Litigation will primarily be performed by Bob Sterbank, although Mike Kenyon, Chris Bacha, and/or other attorneys and paralegals as appropriate may also work on the matter. The amounts billed under this general billing number, at the rates set forth in Attachment A to the this letter, will be pro-rated in equal amounts to each city represented, unless the cities agree to a different division of fees and costs via a separate agreement. If other cities join later in the litigation, each will be billed its pro rata share of the initial work,and an appropriate credit provided to each city that participated from the outset. We believe that this pro rata approach will most fairly and efficiently distribute the common fees, costs and expenses among all intervening cities. Beyond this, an individualized assessment may also be appropriate to determine the best defense strategy for your particular city. We can provide separate billing numbers for any city-specific work that may be necessary in this regard, should the Litigation proceed to that stage and, if you would like, we will follow up with you separately to discuss whether a unique defense strategy tailored to your city should be developed City Attorneys February 10,2012 Page 4 and/or pursued. The signature by your City's Mayor or City Manager(as applicable)below,will also confirm your agreement to this approach unless and until you let us know otherwise. Finally, because multiple cities are impacted by the Litigation but have common goals, city attorneys for the participating cities have 'indicated their desire to share informatioin and strategies pursuant to a joint defense agreement: Attached is a Joint Defense and Confidentiality Agreement,which memorializes the participating cities' agreement to share legal strategies and attorney-client and attorney work product privileged and confidential information,, while prescHing the applicable privileges to such information that would be available if each citywere proceeding separately. Please review the agreement .carefully and, if it meets with your approval, have your mayor execute the agreement and return the signature page to us. We will collect Signatures from each of the cities,and then provide you a complete, executed copy, Thard< you for your attention to this matter, and thank you again for the opportunity to represent your City. 'Very truly yours, KENYON Dism),PLLC Bob C. Sterbanlc City Attorneys February 10, 2012 Page 5 The City of City agrees to retain Kenyon Disend, PLLC, to waive potential conflicts that .may arise by virtue of Kenyon Disend, PLLC's joint representation of the City of I<16WO VA, and other cities in the Litigation, and to pay its equal,pro rata share of attorneys' costs and expenses, all as outlined above. Agreed: By �I't l ►�(I Its: by I KENYON DISEND, PLLC HOURLY RATE SCHEDULE FOR YEAR 2012 ATTORNEYS: Partners and Senior Attorneys: Michael R. Kenyon $255.00 Bruce L. Disend $255.00 Shelley M. Kerslake $225.00 Chris D, Bacha $225.00 Bob C. Sterbank $225.00 Margaret J. King $220.00 Kari L. Sand $210.00 Associate Attorneys: Ann Marie J. Soto $135.00- Rachel B. Turpin $130.00 PARALEGALS: Margaret C. Starkey $105.00 Sheryl A, Loewen $ 95.00 Pam M. Odegard $ 90.00 Mary Eichelberger $ 90.00 Terry Cox $ 90.00 Kathy Swoyer $ 90.00 LEGAL INTERNS: $105.00 i ATTACHMENT A