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HomeMy WebLinkAboutMelissa Derry - Representation of Community Diversion Court ParticipantsCITY OF YAKIMA REPRESENTATION OF COMMUNITY DIVERSION COURT PARTICIPANTS THIS AGREEMENT made and entered into this 2_9 day of , 2025, by and between Melissa Derry, Attorney at Law, of Yakima, Washington hereinafter the "Representation Provider", and the CITY OF YAKIMA, a municipal corporation, hereinafter referred to as the "City". The responsible attorney for the representation of Community Diversion Court (YCDC) participants will be Melissa Derry. WHEREAS, the Representation Provider is an attorney licensed to practice law in the State of Washington, with offices at 315 Holton Ave. Ste 202, Yakima, WA 98902; and, WHEREAS, the parties hereto are desirous of effectuating an agreement whereby the Representation Provider will provide representation for YCDC participants in the Yakima Municipal Court Community Diversion Court; now, therefore, IT IS HEREBY mutually agreed as follows: Duties. The Representation Provider shall provide as -assigned quality representation for YCDC participants and perform work as described in YCDC REPRESENTATION PROVIDER - STATEMENT OF WORK - EXHIBIT A, RFP Documents, which is attached hereto and fully incorporated herein, and this Agreement (sometimes referred to as "Services" under this Agreement). 2. Duty in Case of Conflict. In the event that representation of a participant creates a conflict of interest, such that the assigned Representation Provider cannot represent the participant, the Representation Provider shall immediately notify the City of the conflict. Upon notice from the Representation Provider of a conflict, the City will arrange for conflict counsel. 3. Insurance. Without limiting the Representation Provider's indemnification, it is agreed that the Representation Provider shall maintain in force, at all times during the performance of this Agreement, a policy or policies of insurance to protect the City and. Representation Provider from and against any and all claims, damages, losses, and expenses arising out of or resulting from the performance of this Agreement. The Representation Provider shall provide and maintain in force insurance in limits no less than that stated below. The Representation Provider shall provide a Certificate of Insurance to the City as evidence of coverage for each of the policies outlined below. A copy of the additional insured endorsement attached to the policy shall be included with the certificate. This certificate of Insurance shall provide to the City, prior to the commencement of work. Failure of the City to demand such verification of coverage for these insurance requirements or failure of City to identify a deficiency in the insurance documentation provided shall not be construed as a waiver of the Representation Provider's obligation under this Agreement. The following Insurance is required: a. Commercial Liability Insurance Before this Agreement is fully executed by the parties, Representation Provider shall provide the City with a certificate of insurance and additional insured endorsements as proof of commercial liability insurance with a minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence, combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) general aggregate. Provided further that representation provider shall also include coverage on hired and non -owned automobiles with a minimum limit of One Hundred Thousand Dollars ($100,000.00) per occurrence and a One Hundred Thousand Dollar (100,000.00) aggregate limit if the Representation Provider uses any privately owned vehicles for transportation of clients. If Representation Provider carries higher coverage limits, such limits shall be shown on the Certificate of Insurance and Endorsements and the City, its elected and appointed officials, employees, agents, attorneys and volunteers shall be named as additional insureds for such higher limits. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The certificate of insurance and additional insured endorsements shall name the City of Yakima, its elected and appointed officials, employees, agents, attorneys and volunteers as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City prior written notice. The insurance shall be with an insurance company, or companies rated A-VII or higher in Best's Guide and admitted in the State of Washington. The requirements contained herein, as well as City of Yakima's review or acceptance of insurance maintained by Representation Provider is not intended to and shall not in any manner limit or qualify the liabilities or obligations assumed by Representation Provider under this Agreement. b. Employer's Liability (Stop Gap) Representation Provider shall at all times comply with all applicable workers' compensation, occupational disease, and occupational health and safety laws, statutes, and regulations to the full extent applicable, and shall maintain Employer's Liability insurance with a limit of no less than One Million Dollars ($1,000,000.00). The City shall not be held responsible in any way for claims filed by Representation Provider or its employees for services performed under the terms of this Agreement. Representation Provider agrees to assume full liability for all claims arising from this Agreement including claims resulting from negligent acts of all subcontractors Provider(s). Representation Provider is responsible for ensuring subcontractors have insurance as needed. Failure of subcontractors to comply with insurance requirements does not limit Representation Provider's liability or responsibility. c. Professional Liability The Representation Provider shall provide evidence of Professional Liability insurance covering professional errors and omissions. Representation Provider shall provide the City with a certificate of insurance as proof of professional liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) per claim combined single limit bodily injury and property damage and One Million Dollars ($1,000,000.00) aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. The insurance shall be with an insurance company, or companies rated A -VD or higher in Best's Guide. If the policy is written on a claims made basis the coverage will continue in force for an additional two years after the completion of this Agreement. If insurance is on a claims made form, its retroactive date, and that of all subsequent renewals, shall be no later than the effective date of this Agreement. 4. Term and Renegotiation. This Agreement shall commence on the date of last signature and terminate June 30, 2026, unless extended or sooner terminated as provided herein. The period of performance may also be extended by mutual written agreement of the parties. Should the Representation Provider elect to re -negotiate this Agreement for an additional term, he or she shall submit a proposal for compensation for additional service at least 30 days before the expiration date. 5. Compensation. In return for the above -enumerated services, the Representation Provider shall receive compensation as follows: City shall pay Representation Provider Two Thousand and 00/100ths dollars ($2,000.00) per month. Partial months shall be billed pro rata. The expectation is that the Representation Provider will devote the time necessary to fulfill the scope of work outlined in Exhibit A. It is anticipated that it will take 10 hours per month to fulfill the scope of work outlined and the work may vary with some months heavy on time balanced by lighter months. The aforementioned amount shall be payable when billed to the City. The bill shall be submitted monthly on or before the 10th of the following month to: City of Yakima Municipal Court 200 S. 3rd Street Yakima, WA 98901 6. Expert Witnesses, Interpreters, Investigators, and other funding. Where necessary and appropriate to the representation, the City shall compensate the Representation Provider for expert witness fees incurred by the Representation Provider on behalf of indigent clients covered by this Agreement upon application and approval of the relevant court. 7. Assignment. The Representation Provider shall not assign, transfer, or subcontract this Agreement without obtaining prior written approval from the City. 8. Successors Bound. Subject to the provisions of Section 11, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, and assigns. 9. Ethic Compliance, Reports, and Training. The Representation Provider will provide the aforementioned services in conformity with all applicable Rules of Professional Conduct and will provide the Municipal Court and the City with any reports, fiscal or otherwise, which are reasonably required in the performance of the Municipal Court's and the City's responsibilities. An annual report shall be provided by the Representation provider on a form approved by the City Manager on or before June 1 of each year (or a date agreed to by the parties). The report must include a statement of hours billed for defense legal services in the previous calendar year, including number and types of private cases, as the same may be required by RCW 10.101.050, as now exists or may be subsequently amended. The Representation provider agrees to attend training at least once per calendar year, as the same may be required by RCW 10.101.050 and 10.101.060, as now exist or may be subsequently amended. 10. Taxes and Assessments. The Representation Provider shall be solely responsible for paying all related taxes, deductions and assessments, including but not limited to, leasehold excise taxes, federal income tax, FICA, social security tax, assessments for unemployment and industrial injury, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement, the Representation Provider shall pay the same before it becomes due and indemnify and hold the City harmless from any liability arising out of the same. 11. Independent Representation Provider. The parties agree that the Representation Provider is an independent Representation Provider with the responsibility and authority to control and direct the performance of the details of the work described herein in accordance with the terms and conditions of this Agreement. The implementation of Agreed activities and the results to be achieved are solely the responsibility of the Representation Provider. No agent, employee, subcontractor, or representative of the Representation Provider shall be deemed to be an employee, agent, servant, or representative of the City Municipal Court for any purpose, and the employees, agents, subcontractors, or representative of the Representation Provider are not entitled to any of the benefits the City provides for its employees. The Representation Provider will be solely and entirely responsible for her/his acts and for the acts of his agents, employees, subcontractor, or otherwise, during the performance of this Agreement. 12. Indemnification and Hold Harmless a. Representation Provider shall take all necessary precautions in performing the Services to prevent injury to persons or property. The Representation Provider agrees to release, indemnify, defend, and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers from all liabilities, losses, damages, and expenses related to all claims, suits, arbitration actions, investigations, and regulatory or other governmental proceedings arising from or in connection with this Agreement or the acts, failures to act, errors or omissions of the Representation Provider, or any Representation Provider's agent or subcontractor, in performance of this Agreement. b. Industrial Insurance Act Waiver. It is specifically and expressly understood that the Representation Provider waives any immunity that may be granted to it under the Washington State industrial insurance act, Title 51 RCW, solely for the purposes of this indemnification. Representation Provider's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. Representation Provider shall require that its subcontractors, and anyone directly or indirectly employed or hired by Representation Provider, and anyone for whose acts Representation Provider may be liable in connection with its performance of this Agreement, comply with the terms of this paragraph, waive any immunity granted under Title 51 RCW, and assume all potential liability for actions brought by their respective employees. The Parties acknowledge that they have mutually negotiated this waiver. c. Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. d. The terms of this Section shall survive any expiration or termination of this Agreement. 13. Inspection and Production of Records a. The records relating to the Services, with the exception of attorney client privileged records shall, at all times, be subject to inspection by and with the approval of the City, but the making of (or failure or delay in making) such inspection or approval shall not relieve Representation Provider of responsibility for performance of the Services in accordance with this Agreement, notwithstanding the City's knowledge of defective or non -complying performance, its substantiality or the ease of its discovery. Representation Provider shall provide the City sufficient, safe, and proper facilities, and/or send copies of the requested documents to the City. Representation Provider's records relating to the Services will be provided to the City upon the City's request. b. Representation Provider shall promptly furnish the City with such information and records, except attorney client privileged records, which are related to the Services of this Agreement as may be requested by the City. Until the expiration of six (6) years after final payment of the compensation payable under this Agreement, or for a longer period if required by law or by the Washington Secretary of State's record retention schedule, Representation Provider shall retain and provide the City access to (and the City shall have the right to examine, audit and copy) all of Representation Provider's books, documents, papers and records which are related to the Services performed by Representation Provider under this Agreement. If any litigation, claim, or audit is started before the expiration of the six -year period, the records shall be retained until all litigation, claims, or audit findings involving the records have been resolved. c. All records relating to Representation Provider's services under this Agreement, with the exception of attorney client privileged records, must be made available to the City, and the records relating to the Services are City of Yakima records. They must be produced to third parties, if required pursuant to the Washington State Public Records Act, Chapter 42.56 RCW, or by law. All records relating to Representation Provider's services under this Agreement must be retained by Representation Provider for the minimum period of time required pursuant to the Washington Secretary of State's records retention schedule. d. The terms of this section shall survive any expiration or termination of this Agreement. 14. Nondiscrimination. During the performance of this Agreement, the Representation Provider agrees as follows: The Representation Provider shall not discriminate against any person on the grounds of race, creed, color, religion, national origin, sex, age, marital status, sexual orientation, gender identity, pregnancy, veteran's status, political affiliation or belief, or the presence of any sensory, mental or physical handicap in violation of the Washington State Law Against Discrimination (RCW chapter 49.60) or the Americans with Disabilities Act (42 USC 12101 et seq.). In the event of the Representation Provider's noncompliance with the non-discrimination clause of this Agreement or with any such rules, regulations, or orders, this Agreement may be cancelled, terminated, or suspended in whole or in part and the Representation Provider may be declared ineligible for any future City Agreements. 15. Termination. Either party may terminate this Agreement, with or without cause, upon thirty (30) days written notice sent by email and confirmed with written notice, to the other party at the address listed in this Agreement. 16. Change in Funding: In addition to the above termination provisions, if the funds upon which the City relied to establish this Agreement are withdrawn, reduced, or limited,, or if additional or modified conditions are placed on such funding, the City may terminate this Agreement by providing at least five business days written notice to the Representation Provider. The termination shall be effective on the date specified in the notice of termination. 17. Governing Law. This Agreement has been and shall be construed as having been made and delivered within the State of Washington, and it is mutually understood and agreed to by each party hereto that this Agreement shall be governed by the laws of the State of Washington both as to interpretation and performances. 18_ Venue. Any action at law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provisions thereof, shall be instituted and maintained only in the Superior Court for Yakima County, Yakima, Washington 19. Integration. This Agreement, the Request for Qualifications & Proposals, Scope of Work, conditions, addenda, and modifications and Representation Provider's proposal (to the extent consistent with Yakima City documents) constitute the Agreement Documents and are complementary, Specific Federal and State laws and the terms of this Agreement, in that order respectively, supersede other inconsistent provisions. These Agreement Documents are on file in the Office of the Purchasing Manager, 129 No. 2nd St., Yakima, WA, 98901, and are hereby incorporated by reference into this Agreement. It is understood and agreed that all understandings and agreements, whether written or oral, heretofore had between the parties hereto are merged in this Agreement, which alone fully and completely expresses their agreement, that neither party is relying upon any statement or representation not embodied in this Agreement, made by the other, and that this Agreement may not be changed except by an instrument in writing signed by both parties. 20. Waiver of Breach. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. DATED this •Z w day of 6'tPlertibe 2025. CITY OF YA By. VictBaker City Manager 129 N. 2nd Street Yakima, WA 98901 509-575-6000 MELISSA DERRY b6ef A ' 57'03 7 Melissa Derry, WSBA #57037 Address: io 5oc Zy22 YWK g9a7 Phone: 36,O- 313--1793 Email: Ai 14c,safJerr Y 2ia Vicki.baker@yakimawa.gov ATTEST: City Agreement No. 262 5 1�i Resolution No. N IA,