CCR2004192.
.
.
AMENDED
COMMON COUNCIL - CITY OF MUSKEGO
RESOLUTION #192-2004
APPROVAL OF COMMON REPRESENTATIONI
JOINT DEFENSE AGREEMENT
BETWEEN GODFREY & KAHN AND THE CITY OF MUSKEGO
REGARDING DNRlMMSD
BE IT RESOLVED That the Common Council of the City of Muskego does hereby
approve the attached Common Representation/Joint Defense Agreement, as amended,
Between Godfrey & Kahn and City of Muskego.
BE IT FURTHER RESOLVED That the Mayor, in consultation with the City Attorney,
may make any necessary technical changes to the Agreement, as amended.
BE IT FURTHER RESOLVED That the Mayor and Clerk-Treasurer are authorized to
sign the Agreement, as amended, in the name of the City.
DATED THIS 9th DAY OF November ,2004.
SPONSORED BY
Mark A. Slocomb, Mayor
This is to certify that this is a true and accurate copy of Resolution #192-2004 which
was adopted by the Common Council of the City of Muskego.
11/2004jmb
.
.
.
COMMON REPRESENTATION/JOINT DEFENSE AGREEMENT
This agreement made this
-
day of November, 2004, by and between Godfrey
& Kahn ("G&K") and City of Muskego (hereinafter "Municipal Entity").
WHEREAS, the Wisconsin Attorney General on behalf of the State of Wisconsin
has threatened to commence an enforcement action against MMSD and twenty-eight
communities serviced by the MMSD, including the Municipal Entity, for alleged sanitary
sewer overflows that are claimed to violate the terms and conditions of Wisconsin
Pollution Discharge Elimination System permits (hereinafter "Permits") issued to the
MMSD and each governmental entity, which alleged overflows are also alleged to
constitute a public nuisance (hereinafter the "Threatened Litigation").
WHEREAS, the governmental entities, including the Municipal Entity, desire to
retain G&K to act as Common Counsel on defense issues which are common to
various governmental entities who are targets of the Threatened Litigation, including the
Municipal Entity, so that the governmental entities in the Threatened Litigation can
more effectively coordinate defense in an efficient manner.
WHEREAS, the Municipal Entity and other participating governmental entities
desire to protect information shared between parties who have executed this Common
Representation/Joint Defense agreement (hereinafter "Agreement") from discovery by
third parties to the maximum extent possible under applicable law;
NOW, THEREFORE, G&K and the Municipal Entity agree as follows:
1. Information Sharinq. All information provided by the Municipal Entity to
G&K under this Agreement may be shared with other governmental entities who are
signators to the Agreement, and that information received from such other
governmental entities may be shared with the Municipal Entity.
2. Confidential Information. The Municipal Entity agrees to maintain as
confidential all information received pursuant to the terms of this Agreement to the
maximum extent allowed under applicable law (hereinafter the "Shared Information").
3. Billinq and Payment. The Municipal Entity will pay the sum of $ 1,000.00
toward any fees incurred through G&K's representation prior to the date of this
agreement.
With regard to ongoing representation, G&K shall provide signators to this
Agreement with itemized statements on a monthly basis for all work covered by this
Agreement subsequent to the date of this agreement to each of the governmental
entities who have signed the Agreement, including the Municipal Entity, and the
Municipal Entity will pay a pro rata share of said common defense costs (hereinafter
"Agreement Costs") of all participating municipalities, or 10% of the ongoing costs,
whichever is smaller. Services shall be billed at the rate of $290 per hour.
.
.
.
4. Decision-MakinQ. To the extent client authorization is sought for action to
be taken on any of the matters covered by this Agreement, a decision shall be made on
such matters by a two-thirds majority vote of the governmental entities subject to this
Agreement. Notwithstanding the foregoing, the decision of a governmental entity to
settle the Threatened Litigation is and will remain the sole decision of each
governmental entity.
5. Opt-Out Riqhts. The Municipal Entity may terminate its participation in the
Agreement at any time, for any reason, by providing written notice to G&K and the other
participating governmental entities to this Agreement (hereinafter the "Opt Our). In the
event the governmental entity exercises its right to Opt Out, the governmental entity
shall be responsible for Agreement Costs as set forth in ~ 3 through the date of
notification of the Opt Out.
6. G&K/Glendale. In the event Glendale were to exercise its Opt Out right,
it is agreed that G&K may continue to represent Glendale and any other governmental
entities that seek common defense counsel in the Threatened Litigation.
7. Unrelated Conflict Waiver. The Municipal Entity agrees that G&K may
represent parties adverse to the Municipal Entity in matters unrelated to the subject of
this Agreement and the Threatened Litigation, provided, however, that G&K is required
to maintain as confidential all of the information obtained under the terms and
conditions of this Agreement, and such information may not be used in any unrelated
adverse litigation, except as otherwise provided in this Agreement.
8. City Attorney Representation. The Municipal Entity reserves the right to
continue to be represented by its City Attorney on all matters related to the
governmental entity in the Threatened Litigation.
9. Retroactivity of Aqreement. With the exception of the costs set forth in ~
3, the Municipal Entity agrees that this contract shall be deemed to be in effect as of
August 1, 2004.
GODFREY & KAHN, S.C.
By:
CITY OF MUSKEGO
By:
2