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HomeMy WebLinkAbout5.422F Original ContractJanuary 30, 2008 PORTANGELES W A S H I N G T O N U S A 5.ie 0?o07 From the desk of Becky Upton, City Clerk Note to File re. City Clerk File No. 5.422 Agreement for Indigent Legal Defense Services as signed by Deputy Mayor Larry Williams on March 20, 2007: I had this agreement in pending status, awaiting the signature of the Clallam Public Defender. Apparently, according to Dennis Dickson, Sr. Asst. City Attorney, the Public Defender's Office wanted a correction made to the caseload figure set forth in the agreement. They, therefore, chose to not sign this particular agreement. On December 18, Dennis took a revised agreement back to the City Council as set forth in the memorandum attached. The new agreement is still in pending status as of this date. Becky J. Upton '7 /5- Yakt ,LutAQAAttitac ±9,,Li. #1 „not_ a12-CIL go %Lt.- p-Diailt14/ .dtati4( it&t_ AGREEMENT FOR INDIGENT LEGAL DEFENSE SERVICES REPRESENTATIONS AGREEMENTS 40 THIS AGREEMENT is entered into between the City of Port Angeles (hereinafter called "City" and Clallam Public Defender (hereinafter called "Contractor is entered into this day of 2007. 1. The City requires the professional services of the Contractor in order to provide indigent representation for misdemeanor and gross misdemeanor defendants that are prosecuted by the City of Port Angeles and under circumstances that legal defense is required either under the Constitution of the United States or under the Constitution and laws of the State of Washington. 2. The Contractor is qualified and capable of meeting the professional standards for providing criminal defense and related services for indigent misdemeanor and gross misdemeanor defendants facing commitment or incarceration for offenses prosecuted by the City of Port Angeles. NOW, THEREFORE, in consideration of specified legal services to be provided by the Contractor and the monetary payments to be made to the Contractor by the City, as herein provided, the parties hereby agree as follows: 1. Term of Agreement. This agreement shall be in effect from the first day of January, 2007 through the 31st day of December, 2009; provided, however, in the event the state adopts legislation that requires a change in the services provided under this Agreement, either party may give notice of termination. This Agreement shall terminate 60 days following the date such notice is given. 2. Scone of Work. The Contractor shall provide criminal defense and related services for indigent misdemeanor and gross misdemeanor defendants and certain other persons facing commitment or incarceration for offenses prosecuted by the City of Port Angeles. The Contractor's obligation to provide services, and the City's obligation to pay for such services, under this agreement shall be limited to cases or matters in which the District Court Judge or pro -tem judge or commissioner having jurisdiction over the case or matter makes a specific determination of indigence, based on a fair study of need, and appoints Contractor to the case or matter by court order. The Contractor has the right, for good cause shown and with the Court's permission, to decline to represent or discontinue representing any individual, who by his or her request, action, conduct, or financial ability, waives the right to the assistance of counsel at public expense. In the event of a conflict of interest arising and precluding contractor from representing a client, and upon a finding by the Court that such conflict exists and precludes contractor from representing the defendant, and the court designates another attorney to represent the client, it shall be at the expense of the City. The Contractor will continue active representation and will complete cases which were assigned in the calendar year covered by the term of this contract briefly and with due diligence, and in the event that the Contractor is not awarded the contract for the following calendar year, the Contractor shall then be compensated at the hourly rate of $35.00 per hour. In the event that work is necessary on carryover cases and the Contractor is not awarded the contract, Contractor will be responsible for keeping a record of time worked under the term of this contract on cases for the City and must submit a monthly itemized statement of hours worked and request for payment to the City. Nothing in this agreement shall be construed to impair or inhibit the exercise of independent professional judgment when an attorney /client privilege has been established, nor shall this agreement require or authorize any attorney to engage in conduct prohibited by the Code of Professional Responsibility. In order to make sure that the Contractor's caseload is being handled efficiently and in cooperation with the efforts of the District Court and the City Attorney' s Office, the Contractor agrees to comply with the following guidelines to the extent possible: a. A specific Public Defender shall be assigned to each case as soon as notice is received of the District Court appointment. b. The Public Defender shall meet with the client and discuss the City Prosecutor's plea offer before the arraignment. c. The Public Defender shall attend the arraignment for each case and be prepared to respond to the plea offer. d. To the maximum extent practicable, the Contractor shall arrange for backup coverage for Public Defenders who are unable to make scheduled court appearances due to vacation or other such reasons that allow advance notice, in order to minimize continuances. 3. Compensation. Based upon the anticipated case load of approximately 400 cases for the 2007 calendar year, payment from the City to the Contractor shall be $36,300 for calendar year 2007 to be made on a monthly basis with each monthly payment equal to 1 /12th of the total amount as herein stated. For calendar year 2008 and 2009 the compensation shall be $36,300 increased by 80% of the annualized increase Seattle CPI -W as reported for June of the prior year. -2- For purposes of this Agreement, the term "one case" shall mean all proceedings concerning a single defendant charged with one or multiple misdemeanors or gross misdemeanors from first appearance to final case disposition. Each appointment to represent a single defendant on a appeal shall constitute one case. Each appointment for a single defendant alleging a violation of the terms or conditions of probation shall equal one -third (1/3) case. This caseload contemplates the assaignment of no more than one full -time attorney acting in compliance with the rules of professional conduct. This agreement may be periodically reviewed and renegotiated as necessary by either party with respect to case load, but in the event that Contractor's court assignments /appointments exceed, or are predicted to exceed, more than 525 cases, the contract shall be renegotiated unless the contractor waives the right of renegotiation or does not give the City notice of intent to renegotiate at least 90 days before the end of the calendar year 2007 or 2008, as applicable. 4. Independent contractor. The status of the Contractor hereunder is that of an independent contractor and the Contractor shall not be construed to be an employee or employees of the City of Port Angeles. As an independent contractor, the Contractor is not entitled to any benefits available to employees of the City, and the Contractor is responsible for withholding any monies required to be withheld from Contractor's employees pursuant to local, state or federal law, including but not limited to worker's compensation, social security, income taxes, use taxes and business and occupations taxes collected by the State of Washington. 5. Records. The City shall have the right to reasonably audit business records of the Contractor (exclusive of attorney client confidential records) which are relevant to the performance of this Agreement. Such review may occur upon thirty days notice to the Contractor, and may include, but not be limited to, on -site inspection by City agents or employees of all financial and non privileged records or other materials which are pertinent to this Agreement and its performance, and any and all non privileged communications relevant to the performance of this Agreement. The Contractor shall preserve and maintain all financial records and records relating to the performance of this agreement for three years after contract termination and shall make such records available for review by the City upon request. 6. Modifications. Either party may request changes in the agreement; however, any and all modifications shall be in writing and signed by each of the parties. 7. Default. In the event that the Contractor defaults by failing to perform any of the obligations of this agreement, the City shall have available all contractual remedies under the laws of the State of Washington. If the City chooses to terminate the agreement for default by the Contractor, the City may at its option obtain performance of the work elsewhere and shall be entitled to recover any extra cost or damage to the City resulting from such default by deduction from any money due or coming to the Contractor. The Contractor shall bear any extra expenses incurred by the City in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained by the City by reason of such default. 8. Nondiscrimination. The Contractor shall not discriminate against any person on the basis of race, color, religion, sex, marital status, Vietnam era veteran's status, disabled veteran condition, physical or mental handicap, or national origin. 9. Indemnification /Hold Harmless. The Contractor shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or in connection with the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. 10. Insurance. The Contractor shall procure and maintain for the duration of this agreement a policy of professional liability insurance providing coverage of at least $1,000,000 against professional liability in connection with the work to be performed by Contractor under this agreement. 11. Annlicable Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington, and in the event of dispute the venue of any litigation brought hereunder shall be Clallam County. IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY OF PORT ANGELES Kareh A. Rogers, Mayor APPROVED AS TO FORM: ATTEST: c William E. Bloor, City Attorney 1, Becky J. U i 4 t n am ity C G \Legal Backup \AGREEMENTS &CONTRACTS 12007 Agents Contracts12007PublicDefenderContract 12 -13 -07 wpd CLALLAM PUBLIC DEFENDER, CONTRACTOR BY Harry Gasnick, Executive Director D Is cu ss lo N: J W A S H I N G T O N U.S.A. CITY COUNCIL MEMO 5-.422 F DATE: December 18, 2007 TO: CITY COUNCIL FROM: Dennis C. Dickson, Senior Assistant City Attorney SUBJECT: Re- Execution of Corrected Agreement for Indigent Legal Defense Services SUMMARY: The Clallam Public Defender provides indigent defense services for the City by contract. A new contract was approved at the March 20, 2007 City Council meeting. In the document approved on March 20, the caseload basis was in error. This draft corrects that error. RECOMMENDATION: Authorize the Mayor to sign the attached corrected agreement for indigent legal services with the Clallam Public Defender for the years 2007 through 2009. Cities are required by law to provide legal defense services for indigents against whom they file and prosecute criminal charges. In 1997, the City of Port Angeles entered into a contract with the Clallam- Jefferson Public Defender (now known as Clallam Public Defender) after putting out a request for proposals for indigent legal defense services. After conducting a cost analysis for continuing to provide these mandated services, it was determined that renewal of the contract with Clallam Public Defenders was the most advantageous way to meet this obligation. On March 20, 2007 City Council authorized a contract extension through 2009. When the March 20, 2007 contract was negotiated, the intent of the parties was to clarify the caseload to include values for both full case assignments and probation case assignments. These values are fundamental in calculating compensation. Probation assignments require much less attorney time than do full case assignments. A probation case assignment was weighted as 1/3 of a full case assignment. The prior caseload basis of 490 would equal 400 total under the new basis where probation case assignments are only counted as 1/3 of a full case assignment. Inadvertently, the 490 figure was not changed to 400. The purpose of this corrected agreement is to correct the caseload figure to 400. There are no other changes. K -35 o 1 Page 2 December 13, 2007 Memo to Council Re: Corrected Agreement The annual compensation rate for the contract has been $33,000 since 2002. The increase provided in the contract is fair and in keeping with the rise in the consumer price index since the contract was last renewed. Dennis C. Dickson, Senior Assistant City Attorney Attachment DCD \jd K -36 t a. AGREEMENT FOR INDIGENT LEGAL DEFENSE SERVICES REPRESENTATIONS AGREEMENTS Str "P JAN162009 3 ao D 7 E 5. /02 THIS AGREEMENT is entered into between the City of Port Angeles (hereinafter called "City and Clallam Public Defender (hereinafter called "Contractor is entered into this Q y of 2007. 1. The City requires the professional services of the Contractor in order to provide indigent representation for misdemeanor and gross misdemeanor defendants that are prosecuted by the City of Port Angeles and under circumstances that legal defense is required either under the Constitution of the United States or under the Constitution and laws of the State of Washington. 2. The Contractor is qualified and capable of meeting the professional standards for providing criminal defense and related services for indigent misdemeanor and gross misdemeanor defendants facing commitment or incarceration for offenses prosecuted by the City of Port Angeles. NOW, THEREFORE, in consideration of specified legal services to be provided by the Contractor and the monetary payments to be made to the Contractor by the City, as herein provided, the parties hereby agree as follows: 1. Term of Agreement. This agreement shall be in effect from the first day of January, 2007 through the 31st day of December, 2009; provided, however, in the event the state adopts legislation that requires a change in the services provided under this Agreement, either party may give notice of termination. This Agreement shall terminate 60 days following the date such notice is given. 2. Scone of Work. The Contractor shall provide criminal defense and related services for indigent misdemeanor and gross misdemeanor defendants and certain other persons facing commitment or incarceration for offenses prosecuted by the City of Port Angeles. The Contractor's obligation to provide services, and the City's obligation to pay for such services, under this agreement shall be limited to cases or matters in which the District Court Judge or pro -tem judge or commissioner having jurisdiction over the case or matter makes a specific determination of indigence, based on a fair study of need, and appoints Contractor to the case or matter by court order. The Contractor has the right, for good cause shown and with the Court's permission, to decline to represent or discontinue representing any individual, who by his or her request, action, conduct, or financial ability, waives the right to the assistance of counsel at public expense. In the event of a conflict of interest arising and precluding contractor from representing a client, and upon a finding by the Court that such conflict exists and precludes contractor from representing the defendant, and the court designates another attorney to represent the client, it shall be at the expense of the City. The Contractor will continue active representation and will complete cases which were assigned in the calendar year covered by the term of this contract briefly and with due diligence, and in the event that the Contractor is not awarded the contract for the following calendar year, the Contractor shall then be compensated at the hourly rate of $35.00 per hour. In the event that work is necessary on carryover cases and the Contractor is not awarded the contract, Contractor will be responsible for keeping a record of time worked under the term of this contract on cases for the City and must submit a monthly itemized statement of hours worked and request for payment to the City. Nothing in this agreement shall be construed to impair or inhibit the exercise of independent professional judgment when an attorney /client privilege has been established, nor shall this agreement require or authorize any attorney to engage in conduct prohibited by the Code of Professional Responsibility. In order to make sure that the Contractor's caseload is being handled efficiently and in cooperation with the efforts of the District Court and the City Attorney's Office, the Contractor agrees to comply with the following guidelines to the extent possible: a. A specific Public Defender shall be assigned to each case as soon as notice is received of the District Court appointment. b. The Public Defender shall meet with the client and discuss the City Prosecutor's plea offer before the arraignment. c. The Public Defender shall attend the arraignment for each case and be prepared to respond to the plea offer. d. To the maximum extent practicable, the Contractor shall arrange for backup coverage for Public Defenders who are unable to make scheduled court appearances due to vacation or other such reasons that allow advance notice, in order to minimize continuances. 3. Compensation. Based upon the anticipated case load of approximately 490 cases for the 2007 calendar year, payment from the City to the Contractor shall be $36,300 for calendar year 2007 to be made on a monthly basis with each monthly payment equal to 1 /12th of the total amount as herein stated. For calendar year 2008 and 2009 the compensation shall be $36,300 increased by 80% of the annualized increase Seattle CPI -W as reported for June of the prior year. 1 For purposes of this Agreement, the term "one case" shall mean all proceedings concerning a single defendant charged with one or multiple misdemeanors or gross misdemeanors from first appearance to final case disposition. Each appointment to represent a single defendant on a appeal shall constitute one case. Each appointment for a single defendant alleging a violation of the terms or conditions of probation shall equal one -third (1/3) case. This caseload contemplates the assaigmnent of no more than one full -time attorney acting in compliance with the rules of professional conduct. This agreement may be periodically reviewed and renegotiated as necessary by either party with respect to case load, but in the event that Contractor's court assignments /appointments exceed, or are predicted to exceed, more than 525 cases, the contract shall be renegotiated unless the contractor waives the right of renegotiation or does not give the City notice of intent to renegotiate at least 90 days before the end of the calendar year 2007 or 2008, as applicable. 4. Independent contractor. The status of the Contractor hereunder is that of an independent contractor and the Contractor shall not be construed to be an employee or employees of the City of Port Angeles. As an independent contractor, the Contractor is not entitled to any benefits available to employees of the City, and the Contractor is responsible for withholding any monies required to be withheld from Contractor's employees pursuant to local, state or federal law, including but not limited to worker's compensation, social security, income taxes, use taxes and business and occupations taxes collected by the State of Washington. 5. Records. The City shall have the right to reasonably audit business records of the Contractor (exclusive of attorney client confidential records) which are relevant to the performance of this Agreement. Such review may occur upon thirty days notice to the Contractor, and may include, but not be limited to, on -site inspection by City agents or employees of all financial and non privileged records or other materials which are pertinent to this Agreement and its performance, and any and all non privileged communications relevant to the performance of this Agreement. The Contractor shall preserve and maintain all financial records and records relating to the performance of this agreement for three years after contract termination and shall make such records available for review by the City upon request. 6. Modifications. Either party may request changes in the agreement; however, any and all modifications shall be in writing and signed by each of the parties. 7. Default. In the event that the Contractor defaults by failing to perform any of the obligations of this agreement, the City shall have available all contractual remedies under the laws of the State of Washington. If the City chooses to terminate the agreement for default by the Contractor, the City may at its option obtain performance of the work elsewhere and shall be entitled to recover any extra cost or damage to the City resulting from such default by deduction from any money due or coming to the Contractor. The Contractor shall bear any extra expenses incurred by the City in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained by the City by reason of such default. 8. Nondiscrimination. The Contractor shall not discriminate against any person on the basis of race, color, religion, sex, marital status, Vietnam era veteran's status, disabled veteran condition, physical or mental handicap, or national origin. 9. Indemnification /Hold Harmless. The Contractor shall defend, indemnify and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees, arising out of or in connection with the performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. 10. Insurance. The Contractor shall procure and maintain for the duration of this agreement a policy of professional liability insurance providing coverage of at least $1,000,000 against professional liability in connection with the work to be performed by Contractor under this agreement. 11. Applicable Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington, and in the event of dispute the venue of any litigation brought hereunder shall be Clallam County. IN WITNESS THEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY OF PORT ANGELES Karen A. Rogers, Mayor APPROVED AS TO FO William E. Bloor, City Attorney ATTEST: G4' ,ic,-;_z_ BY Beck J. on'tit Cl E Y Y CLALLAM PUBLIC DEFENDER, CONTRACTOR 44/4 Harry Gasnick, Executive Director G \Legal_Backuo\AGREGMENTS &CONTRACTS \2007 Agnnts Contracts\ 2007PublicDefendeiContract3 -19 -07 wpd (Rev July 31, 2006)