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HomeMy WebLinkAbout2023-11-20 I01G Conflict Waiver Request_Ahlers and CooneyAGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: November 20, 2023 AGENDA ITEM:Consideration of approval of a motion approving Conflict Waiver Request with Ahlers & Cooney, P.C. [Waukee Timberline School Plat 1 Easements] FORMAT:Consent Agenda SYNOPSIS INCLUDING PRO & CON: The Waukee Community School District has requested Ahlers & Cooney to represent them on a temporary access easement across a portion of Lot 1 of Waukee Timberline School Plat 1. Although Ahlers & Cooney does not believe there is a conflict of interest, they have requested that the City consent to the attached waiver regarding their work on the agreement. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: RECOMMENDATION: Approve the motion. ATTACHMENTS: I. Conflict Waiver Request PREPARED BY:Becky Schuett REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: I1G Ahlers & Cooney, P.C. Attorneys at Law 100 Court Avenue, Suite 600 Des Moines, Iowa 50309-2231 Phone: 515-243-7611 Fax: 515-243-2149 www.ahlerslaw.com Jenna H.B. Sabroske 515.246.0328 jsabroske@ahlerslaw.com WISHARD & BAILY - 1888; GUERNSEY & BAILY - 1893; BAILY & STIPP - 1901; STIPP, PERRY, BANNISTER & STARZINGER - 1914; BANNISTER, CARPENTER, AHLERS & COONEY - 1950; AHLERS, COONEY, DORWEILER, ALLBEE, HAYNIE & SMITH - 1974; AHLERS, COONEY, DORWEILER, HAYNIE, SMITH & ALLBEE, P.C. - 1990 November 16, 2023 Sent via email: bdeets@waukee.org Brad Deets, City Administrator City of Waukee 204 West Hickman Road Waukee, IA 50263 RE: Conflict Waiver Request – Waukee Timberline School Plat 1 Easements Dear Brad: We have been asked to represent the Waukee Community School District (the “District”) related to a certain temporary access easement that the District has been asked to provide to the City of Waukee, Iowa (the “City”) across a portion of Lot 1 of the Waukee Timberline School Plat 1 for a sanitary sewer project. In the course of our Firm’s representation of the District, we would review or prepare easement agreements in which the City would be the entity opposite the District. As you know, our firm also currently represents the City on certain matters unrelated to this easement, such as economic development and finance matters (“City Representations”). The purpose of this letter is to inform you that the proposed representation of the District and the City Representations present an ethical conflict of interest for our firm, and to seek the consent of the City to our representation of the District in this matter. While this work is not within the scope of the City Representations, this representation is a concurrent conflict of interest under the ethical standards governing the practice of law in Iowa. From a legal perspective, a concurrent conflict of interest exists under Iowa rules if (1) the representation of one client will be directly adverse to another client ; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer. We know that the second condition stated above does not apply to this situation, but our firm’s representation of the District on the matter will be directly adverse to City because they are concurrent representations. The state’s ethical rules allow a law firm to concurrently represent two adverse parties if (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. We believe confidently that our attorneys will be able to provide competent and diligent representation to each of their affected clients as the November 16, 2023 Page 2 matters being addressed are totally unrelated, the representation is not prohibited by law, and there will not be an assertion of a claim as described. The purpose of this letter is to seek the written consent of the City to proceed with our representation of the District on the matter. We are requesting the same from the District. Please be aware that the Rules of Professional Conduct require that we represent all our clients with diligence and that we protect and maintain their confidences. Accordingly, we will not disclose or use any confidential information that we may have acqui red about either party to the other in our prior or ongoing representation of the parties. In deciding whether to consent, you should consider how our representation as described above could or may affect you. For example, clients that are asked to waive or consent to conflicts should consider whether there is any material risk that their attorney will be less diligent on their behalf due to the conflict. Similarly, clients should consider whether there is any material risk that their confidential information or other proprietary matters will be used adversely to them due to the conflict. Although you are not required to do so, we recommend that you seek the advice of a lawyer outside of our Firm if you have any questions or concerns about whether you should sign this conflict waiver. Please feel free to contact me with any questions or concerns. If the City consents to the concurrent representation, please so indicate below and return a copy of this fully executed letter to my attention. Thank you. Very truly yours, AHLERS & COONEY, P.C. Jenna H.B. Sabroske JHBS:mp November 16, 2023 Page 3 The City Council of the City of Waukee, Iowa waives and consents to any actual, potential, or perceived conflict of interest associated with Ahlers & Cooney, P.C.’s representation of the Waukee Community School District with respect to the above-referenced transaction despite the separate City Representations with the City of Waukee, Iowa. Dated this ___ day of _______________, 2023. CITY OF WAUKEE, IOWA By: ____________________________________ Print Name: _____________________________ Its: ____________________________________ 02263646-1\13379-000 TEMPORARY CONSTRUCTION EASEMENT Preparer Information: (name, address and phone number) City of Waukee, Iowa 805 University Avenue Waukee, Iowa 50263 515-978-7920 Return Document To: (name and complete address) City of Waukee, Iowa Rebecca Schuett, City Clerk 230 W. Hickman Road Waukee, Iowa 50263 Grantor: Waukee Community School District Grantee: City of Waukee, Iowa - 2 - TEMPORARY CONSTRUCTION EASEMENT(S) KNOW TO ALL PERSONS BY THESE PRESENTS: 1. Grant of Easement(s). The undersigned, Waukee Community School District (hereinafter referred to as the Zero Dollars ($0.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby sell, grant, and convey to the CITY OF WAUKEE, IOWA, a municipal corporation (Grantee temporary construction easement under, through and across the following described real estate: SEE EASEMENT DRAWING ATTACHED HERETO (herein That the above-described easement is granted unto the City of Waukee, Iowa, for the purpose of construction and installation of the following public improvements: Blue Stem Trunk Sewer Phase 2 Project This temporary construction easement shall terminate and be of no force and effect eighteen (18) months after the commencement of construction on property. The Grantee agrees to restore the Easement Area to a condition after construction substantially the same as prior to entry by the Grantee, except for any grading and above ground improvements which shall remain in place as part of the improvement. The surface of the Easement Area will be seeded or sodded and/or left in its natural state as shown on the proposed plans for the project. The Grantor agrees that the improvements proposed herein, and the reasonable restoration of their property, as set forth in this easement aforesaid, shall be full and complete satisfaction and consideration of and for this easement, and Grantor expresses agreement that no other liability shall attach or be charged or claimed against the Grantee as a result of or because of the construction of the improvement intended, or the use of the easement herein granted. The Grantee will indemnify and hold harmless Grantor from any and all damages, injuries, or los connection therewith. The Grantor does HEREBY COVENANT with the said Grantee, and successor- in-interest, that said Grantor holds said real estate described in this Easement Area by title in fee simple; that Grantor has good and lawful authority to sell and convey the - 3 - same; and that said Grantor covenants to WARRANT AND DEFEND the said premises against the lawful claims of all persons whomsoever, except as may be herein stated. Signed this ___ day of ______________, 20__. Waukee Community School District By: By: Title: Title: STATE OF ) ) SS COUNTY OF ) On this _____ day of __________________, 20____, before me, the undersigned, a Notary Public in and for said County and the State of Iowa, personally appeared , to me personally known, who being by me duly sworn, did say that that person is of , the corporation executing the foregoing instrument; that (the seal affixed to said instrument is the seal of the corporation or no seal has been procured by the corporation) and that the instrument was signed (and sealed) on behalf of the corporation by authority of its Board of Directors; that acknowledged the execution of the instrument to be the voluntary act and deed of the corporation, by it and by him voluntarily executed. Notary Public in and for the State of Iowa - 4 - CITY OF WAUKEE Courtney Clarke, Mayor Attest: Rebecca D. Schuett, City Clerk STATE OF IOWA ) ) SS COUNTY OF DALLAS ) On this _____ day of _________________, 20___, before me the undersigned, a Notary Public in and for the State of Iowa, personally appeared Courtney Clarke and Rebecca D. Schuett, to me personally known, who, being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waukee, Iowa; that the instrument was signed and sealed on behalf of the City by authority of its City Council, as contained in Resolution No. ______ passed by the City Council on the _____ day of ______________, 20____, and that Courtney Clarke and Rebecca D. Schuett, as such officers, acknowledged the execution of the instrument to be the voluntary act and deed of the City, by it and by them voluntarily executed. ___________________________________ Notary Public in and for the State of Iowa