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Home My WebLink AboutLW12-314 - Original - Kenyon Disend, PLLC - National Wildlife Federation v. FEMA - 01/26/2012 55 a ` ern Records M .NI... K ® l' ram ° WA9HINGTGN _ Document a O 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 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: 1/26/12 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 i tl - Michael R.Kenyan Bruce L Disend fey Shelley M.KerslalteI, Karl LSand Chris D,Bacha Margaret J.King Bob C.Sterbank Rachel B,Turpin Ann Marie f.Soto January 26, 2012 Tom Brubaker City Attorney Law Department City of Kent 220 Fourth Avenue Kent, WA 98032 Re: National Wildlife Federation v. FEMA; Case No.: 2:11-ev-02044-RSM Dear Mr. Brubaker: This letter is to follow up concerning our recent discussions concerning legal representation by our firm of the City of Kent("Kent"). You have asked us to represent Kent 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.C. § 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 Kent 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 Kent 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 Auburn, Burlington, Everett, Federal Way, Mount Vernon, Port Angeles, Puyallup, Renton, and Snoqualmie. And, existing municipal clients of our firm, including Lake Forest Park, 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; Chris Bacha serves as the City Attorney for the City of Orting; Margaret King Kenyan Disend,PLLC I The Municipal Law Firm I I I Front Street South I IssaquahNA 98027.3820 1 Tel:(425)397-7090 1 Fax:(42S)392-7071 1 www.kenyondisend.com Tom Brubaker January 26,2012 Page 2 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 Kent 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. hi such an event, I would not be representing Kent in that dispute; Kent would be represented by its own counsel; my position as City Attorney, however, would call for me. to continue to represent the City of Lake Forest Park, and the position of Mr. Bacha, Ms, 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) I reasonably believe (as I do) that I will be able to provide competent and diligent representation to Kent in the above-referenced matter, and to Lake Forest Park in any separate matter involving Kent (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 Kent, Lake Forest Park, Orting, Sultan, 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 Kent would be represented in any separate matter by you or another attorney, and other cities represented by their counsel); and (4) Kent and the other cities each give informed consent, confirmed in writing. For this reason, we are providing this disclosure to Kent and other cities that have requested our representation in the Litigation, and asking that they waive any 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 Kent 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 Kent,please do not hesitate to contact me. If Kent confirms its waiver of potential conflicts and request for representation in the Litigation by our firm, we propose to handle the matter as follows. Because multiple cities are impacted by the Litigation, and potential litigation costs to individual cities are substantial, our goal is to provide an efficient 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, 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 i i i Torn Brubaker January 26, 2012 Page 3 amounts to each city represented, unless the cities agree to a different division of fees and costs, via the proposed joint defense interlocal agreement circulated by Burlington's ,Scott Thomas, or other agreement, Work on the Litigation will primarily be performed by Bob Sterbanlc,although Mike Kenyon, Chris Bacha, and/or other attorneys and paralegals as appropriate may also work on the matter. Absent adjustment via an interlocal agreement or other agreement among all jointly represented cities; we believe that a 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 deternime'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 lilac, we will follow up with you separately to discuss whether a unique defense.strategy tailored to your city should be developed and/or pursued. The signature by I"ent's Mayor, below, will also confirm your agreement to this approach unless and.until you let us know otherwise. Thank you for your attention to this matter, and thank you again for the opportunity to represent the City of Kent, Very'truly yours, KENYON DisEND,,YLLC Bob C. Sterbarik cc: Chris Bacha i i Tom Brubaker January 26, 2012 Page 4 The City of Kent agrees to retain Kenyon Disend, PLLC, to waive potential conflicts that may arise by virtue of Kenyon Disend, PLLC's joint representation of Kent and other cities in the Litigation, and to pay its equal, pro rata share of attorneys' fees, costs and expenses, all as outlined above, Agreed: By: 1 T� i�rubalcer, City Attorney i i