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HomeMy WebLinkAboutR-1998-147 Public Defender Agreement for 1999RESOLUTION NO. R-984 R-98447 A RESOLUTION authorizing and directing the City Manager and City Clerk to excute the Public Defender Agreement for 1999. WHEREAS, the City of Yakima criminally prosecutes persons for violations of City ordinances in the Yakima County District Court and Municipal Court of Yakima; and WHEREAS, Kenneth W. Raber, Inc., P.S., agreed to perform Public Defender services for the City for 1999 for the fee of One Hundred Ninety-one Thousand Dollars ($191,000.00) payable in equal monthly installments in accordance with the provisions, terms, and conditions of the City of Yakima Public Defender Agreement for 1999; and WHEREAS, such agreement is renewableat the discretion of the City Manager for the Year 2000, and WHEREAS, the City Council deems it to be in the best interest of the City to contract with Kenneth W. Raber, Inc., P.S., attorney at law, and to appoint him as City of Yakima Public Defender for January 1, 1999, through December 31, 1999, under the terms and conditions of the aforementioned agreement, now therefore, BE IT. RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and City Clerk are hereby authorized and. directed to execute the attached and incorporated City of Yakima Public Defender Agreement for 1999 with Kenneth W. Raber, Inc., P.S. ,,',��1 ADOPTED BY THE. CITY COUNCIL this 3 day of QvloWEME6R , 1998. ATTEST: i ,d 1c' , City Clerk (ke)res/public defender agrmt • • CITY OF YAKIMA PUBLIC DEFENDER AGREEMENT FOR 1999 THIS AGREEMENT, made and entered into this _ day of 1999, by and between KENNETH W. RABER, INC., P.S., of Yakima, Washington hereinafter the "Public Defender", and the CITY OF YAKIMA, a municipal corporation, hereinafter referred to as the "City". WHEREAS, the Public Defender is an attorney licensed to practice law in the • State of Washington, with offices at 205 North 40th Avenue, #104, Yakima, Washington 98908; and WHEREAS, the .parties hereto are desirous of effectuating an agreement whereby the Public Defender will provide legal services for indigents and other eligible persons in the Yakima County District Court and its various departments and the Municipal Court of Yakima; now, therefore, IT IS HEREBY mutually agreed as follows: 1. Duties. The Public Defender shall provide defense_ attorney services for all indigent defendants charged with violating Yakima City ordinances in the Yakima • County District Court and the Municipal Court of Yakima which . are punishable by incarceration. Such services shall include legal representations at all stages of the proceedings including, but not limited to, representation at the time of plea, change of plea, pre-trial motions, pre-trial conferences at court, jury and non -jury trials, post -trial motions, sentencings, probation revocation hearings, sentence reviews, all proceedings in connection with deferred prosecutions, competency hearings, and perfection of appeals and/or reviews to the Superior Court, including representation on all stages of review or appeal to higher courts, appellate representation by appointment at any stage of appellate proceeding shall be the responsibility of the City Public Defender. Court appearances during arraignments shall also be required as may be directed from time to time by the District Court or Municipal Court. 2. Public Defender Availability. Public Defender services must be performed on all court dockets, and a defense attorney must be available by telephone 24 hours a day, seven (7) days a week, for each week of the year in order to give legal advice to persons who are in custody on such charges. 3. Minimum Staffing. The Public Defender must provide a sufficient number of defense attorneys to provide the services generally described in this Agreement so that all indigent defendants for whom defense counsel is appointed by the court will be adequately represented:. Such attorneys shall be admitted to practice in Washington. (ke)agr/Public Defender sw Page 1 of 6 At a minimum, the Public Defender shall provide two and one half (2.5) full-time or five (5) half-time public defenders inclusive. Such attorneys may engage in private practice so long as it does not diminish the kind and quality of service required by this Agreement. The Public Defender and such defense attorneys as he may provide shall each fulfill their annual Washington State Bar Association continuing legal education requirement. 4. Duty in Case of Conflict. In the event that representation of a defendant creates a conflict of interest such that the Public Defender cannot represent the defendant, the Public Defender shall be responsible for the referral of the defendant to outside counsel at his sole expense. The City shall approve any sub -contracts for outside counsel services; such approval shall not be unreasonably withheld. 5. Right to Reject. The City, District Court, and Municipal Court reserve the right at any time to reject services of any or all attorneys proposed by the Public Defender. All attorneys proposed to provide services must be approved prior to performing services pursuant to this Agreement by the City and the Judges of the Yakima County District Court or Municipal Court of Yakima. 6. Insurance. All attorneys performing services pursuant to this Agreement must carry and provide the City of Yakima with written proof of malpractice insurance in an amount agreeable to the City Prosecutor, but in no event less than One Million Dollars ($1,000,000.00). Said insurance coverage shall be in effect throughout the term of this Agreement. Should such coverage be terminated for any reason, or should any attorney performing services become ineligible to practice law in this state for any reason, the services of the attorney affected shall cease immediately. 7. Specific Duties. The Public Defender shall generally function as follows: a. Receive notices of appointment for indigent defendants each court day. b. Set up and maintain files on each defendant. c. Notify each defendant of the appointment of counsel, the name of the attorney to whom the case is assigned, and the manner and method the defendant is to use to contact the assigned attorney. d. Provide adequate office space, attorney and , staff time to adequately interview all defendants and witnesses prior to trial. e. Provide supplies, postage, equipment, and telephone facilities to adequately carry on the responsibilities of the City of Yakima Public Defender. f. Provide adequate office support staff to perform the functions of the City of Yakima Public Defender. Page 2 of 6 (ke)agr/Public Defender sw • • • g. Timely interview defendants in custody anywhere in Yakima County. In custody clients shall, at a minimum; be contacted within four (4) court days of arraignment. h. At least four (4) weeks in advance of trial periodically review with the City Prosecutor the case files in order to determine what agreements may be reached as to witnesses, evidence, trial, or sentence recommendations. This shall be accomplished asifollows: 1. The Public Defender shall meet at least weekly at the City Prosecutor's office to discuss pending matters. 2. The Public Defender shall provide, by fax or Attorney Messenger Service, awritten list of all cases to be discussed at the meeting. Said list shall be received by the City Prosecutor's office no later than 4:30 p.m. on the day prior to the weekly meeting. 3. Said list shall include: The defendant's name and trial date of each file to be discussed. ii. ;Whether the case is "in custody", set for jury trial, or on attorney request. iii. A list of all trial dates to be discussed. i. Provide adequate training,supervision, and monitoring of attorneys who act as his employees, subcontractors, or agents in the performance of this contract. j. Provide a means suitable to the City Prosecutor for the disposition of complaints against the Public Defender and his public defense attorneys. k. Kenneth W. Raber shall supervise and be responsible for provision of services and all contacts with the City Prosecutor which may be required by this agreement. All notices, discovery, or communications of any kind shall be sent to the public defenders. at: 205 North 40th Avenue, #104, Yakima, Washington 98908. 8. Terms and Renegotiation. The term of this Agreement shall be from January 1, 1999, through December 31, 1999;* provided, however, that the term of this Agreement may be extended for one (1) additional year on the same terms and conditions herein at the discretion of the City Manager. If the City .Manager extends, the term of this Agreement shall increase or decrease by .80 of the percent change in the United States Department of Labor Consumer Price Index for Seattle Urban Wage Earners and Clerical Workers, or the successor to such index, calculated from the • (ke)agr/Public Defender sw Page 3 of 6 previous year's July index to the current year's July index. The calculation for the increase or decrease in salary for 2000 shall be based upon the indexes from July of 1998 to July of 1999. Any residual caseload at the end of the term shall be negotiated. 9. Compensation. In return for the above -enumerated services, the Public Defender shall receive compensation in a total fixed -fee amount of One Hundred Ninety-one Thousand and no/100 Dollars ($191,000.00), payable in equal monthly (15th to 14th) installments upon proper voucher for the same, submitted by the Public Defender and received by the Director of Finance and Budget at City Hall, Yakima, Washington. All ,payments shall be made to Kenneth W. Raber, Inc., P.S., at 205 North 40' Avenue, #104, Yakima, Washington 98908. 10. Expert •Witnesses. The City shall, in addition, compensate the Public Defender for all expert witness fees incurred by the Public Defender on behalf of indigent clients covered by this Agreement upon application and approval of the court. 11. Assignment. The Public Defender shall not assign, transfer, or subcontract this Agreement without obtaining prior written approval from the City. 12. 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. 13. Ethic Compliance and Reports. The Public Defender will provide the aforementioned services in conformity with the rules of Professional Conduct and will provide the District Court, Municipal Court, and City with any reports, fiscal or otherwise, which are reasonably required in the performance of the District Court's, Municipal Court's, and the City's responsibilities. An annual report shall be provided by the Public Defender on 'a form provided by the City Prosecutor. 14. Taxes and Assessments. Public Defender shall be solely responsible for compensating its employees and 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, Public Defender shall pay the same before it becomes due. 15 Independent Contractor. The parties agree that the Public Defender is an independent contractor 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 contracted activities and the results to be achieved are solely the responsibility of the Public Defender. No agent, employee, subcontractor, or representative of the Public Defender shall be deemedto be an employee, agent, servant, or representative of the City Municipal Court or District Page 4 of 6 (ke)agr/Public Defender sw • • • • Court for any purpose, and the employees, agents, subcontractor, or representative of the Public Defender is,� not entitled to any of the benefits the City provides for its employees. The Publicl Defender will be solely and entirely responsible for his acts and for the acts of his agents, employees, subcontractors, or otherwise, during the performance of this Agreement. 16: Indemnity. The Public Defender hereby agrees to release, indemnify, protect, defend and save harmless the City and Yakima County and their elected and appointed officials, employees, volunteers, and agents from all claims, actions, or damages of any kind and description which may occur to or be suffered by any person or persons, corporation, or property arising, directly or indirectly, out of the operation of this Agreement, caused or contributed thereto by the Public Defender or his employees or subcontractors. Provided, however, that nothing herein shall be deemed to require the Public Defender to indemnify the City or Yakima County or their elected or appointed officials, agents, volunteers, or employees for injury to persons, corporation, and/or property arising from the sole negligence of the City or Yakima County and their elected or appointed officials, employees, volunteers, and agents. In case of suit or action brought against the City or County and/or their elected or appointed officials, agents, volunteers, and employees for damages arising out of or by reason of any of the above-mentioned causes, the Public Defender agrees to pay all costs of defense, including reasonable attorney's fees and any judgment. 17. Non discrimination. The Public Defender shall not discriminate on the basis of race, creed, color, national origin, or physical, mental, or sensory handicap in the performance of this Agreement. 18. Termination. The City of Yakima may terminate this Agreement, with or without cause, upon ninety (90) days written notice sent by certified mail to the Public Defender at the address listed in this Agreement. The parties shall negotiate a reasonable fee for services to complete client representation which cannot be done through substituted counsel. 19. Governing Law. This. Agreement has been and shall be construed as having been made andl delivered within the State of Washington, and it is mutually understood and agreed ,oto by each party hereto that this Agreement shall be governed by the laws of the State of Washington both as to interpretation and performances. 20. 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 21. Integration. 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 (ke)agr/Public Defender sw Page 5 of 6 Agreement, made by the other, and that this Agreement may not be changed except by an instrument in writing signed by both parties. 22. 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 day of , 1998. CITY OF YAKIMA PUBLIC DEFENDER By: R. A. ZAIS, JR. City Manager 129 North 2nd Street Yakima, WA 98901 By: City Contract No. 98-121 Resolution No. (ke)agrfPublic Defender.sw R-98-147 K NNET W. RAB R, INC., P.S. Attorney At Law 205 North 40`h Avenue, #104 Yakima, WA 98908 Page 6 of 6 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. I ,_ For Meeting Of 11/3/98 ITEM TITLE: Resolution Authorizing and Directing the City Manager and City Clerk to Execute the Public Defender Agreement for 1999. SUBMITTED BY: John Hanson, Director, Finance and Budget CONTACT PERSON/TELEPHONE: John Hanson, 575-6070 Archie Sutton, 575-6090 SUMMARY EXPLANATION: The City is responsible to prosecute and provide indigent defense services for persons who commit violations related. to City ordinances in Yakima Municipal Court and Yakima County District Court. Kenneth W. Raber, the City's current public defender, has agreed to provide public defense services to the City at a cost of $191,000 for 1999. The contract would be renewable at the discretion of the City Manager for the Year 2000. Resolution X Ordinance Contract Other(Specify) Funding Source APPROVED FOR SUBMITTAL: i,kaze Ile -h ty Manager STAFF RECOMMENDATION: Staff recommends Council pass the attached resolution authorizing execution of the Public Defender Agreement for 1999. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: (ke)ordinance/public defender agrmt KENNETH W. RABER, INC., P.S. Attorney at Law 205 North 40th Avenue, Suite 104 Yakima, Washington 98908 Telephone (509) 965-5353 Facsimile (509) 965-8003 August 14,1998 Mr. Raymond Paolella City of Yakima Legal Department 200 South Third Street Yakima, WA 98901-2830 RECEIVED AUG 141998 CITY LtUAL DEPT. RE: Proposal for City of Yakima Public Defender Agreement for Criminal and Traffic prosecutions in the Yakima Municipal Court and Yakima County District Court. Dear Mr. Paolella: The following is a proposal for the City of Yakima Public Defender for the Year 1999 and 2000. This proposal is based upon the following factors: 1. The public defender case load for the year 1998 is projected to be approximately 3324. 2. The domestic violence case load continues proportion of the case load and consumes attorney and staff time. It is therefore felt involved in handling these cases, and other a minimum charge of $100 per. case compensation for handling this aspect of the to represent a significant an inordinate amount of that because of the time complicating factors, that would be necessary as case load. 3. It is my opinion that the balance of the caseload, other than domestic violence, can adequately be compensated at a rate of $50 per case. 4. Recent additions and amendments to the DUI laws by the state legislature will cause these cases to be more complicated and time consuming, and will undoubtedly result in more jury trials. With the above factors in mind, the following proposals are submitted: L DOMESTIC VIOLENCE I do not believe that there is a need to anticipate a significant increase in the case load in this area. The law has not changed and with added public awareness the figures should remain stable. The original proposal took into account the extra time involved in handling these cases and also other complicating factors. That assumption has proven to be correct and therefore it would be necessary: to set compensation at the rate of $100 per case. Jury trials on domestic violence cases have been minimal due mainly to the cooperation and flexibility that exists between the prosecutor's and the defender's office and there is no reason to believe that this will not continue. The caseload in this area through July 30, 1998 was 494 and it is projected that the total will be approximately 847. Proposed Compensation: $84,700.00 II. DUI There has been a significant increase in DUI cases in 1998, particularly in the past three months. There have also been major changes in the DUI law which will be going into effect 1/1/99. DUI cases are handled from a defense standpoint. For example, many of the DUI cases have been resolved with a deferred prosecution, but because of the changes to be implemented, this alternative will not be as widely used and many of those cases will be going to trial instead. Because of the emphasis on DUI's by the legislature, civic groups, MADD, and others I believe that the police department will have no alternative but to maintain DUI's on a high profile basis. Consequently, I do not believe that the arrest level in the future will be any lower in this area than in 1998, and will probably increase. The caseload in this area through July 30, 1998, was 106 and it is projected that the total will be approximately will be 180. I would estimate that there will be a 10 percent increase in this area for a total caseload in 1999 of 198. Proposed compensation: $9,900.00 • III. MISCELLANEOUS CRIMINAL CASES This area numerically comprises the bulk of the caseload. I do not anticipate any significant changes in the number of cases in this area for the year 1999. The caseload in this area through July 30, 1998, was 1207 and it is projected that the total for the year 1998 will be 2064 less a projected total for District Court of 228, for a total projected figure of 1836. Proposed compensation: $91,800.00 1V. DISTRICT COURT It should be noted that the 1997 total for District Court was 565. As of July 30, 1998, the District Court total was 133 and a projected total for the year 1998 would be 228, a reduction of approximately 40%. I see no reason why a reduction of cases should not continue in this area. Projected caseload for 1999: 137 Proposed compensation: $ 6,850.00 V. JURY TRIALS Because of the changes in the DUI law and the resulting increased penalties and limited availability of deferred prosecutions it is reasonable to assume that there, will be a substantial increase in the number of jury trials. Defense attorneys are compensated an additional $300 per jury trial over and above any other compensation. Projected number of jury trials: 15 Proposed compensation: $4,500.00 TOTAL PROPOSED COMPENSATION FOR 1999: Very truly y Kenneth W. Raber $197,750.00 IRECEIVED FEB 0 21998 CITY LEGAL DEp9.97 ANNUAL Please list all attome s • rovidin . • ublic Noy 1 1997 PUBLIC DEFENDER REPORT: defender service: KENNETH W. RABER 205 N anTH AVE #104 YAKIMA WA 08909 (509)955 5353 (509)577 4512 230 NACHES AVENUE WILLIAM SCHULER 24289 NACHES WA 98937 (507)553 2254 (509597 4n.S2 HALF 501 WEST LINCOLN C DOUGLAS WILSON • 3530 YAKIMA WA 98902 (500)248 6423 N/A HALF Please attach additional attorney information if needed. Please attach written proof of malpractice insurance for each attorney listed above. District Court Number of DV cases appointed by the Court Number of non -DV cases appointed by the Court TOTAL cases for District Court Number of appeals filed from District Court O 55, Municipal Court Number of DV cases appointed by the Court Number of non -DV cases appointed by the Court TOTAL cases for Municipal Court Number of appeals filed from Muncipal Court TOTAL number of appeals filed TOTAL NUMBER OF CASES > ated: — (98—CIS By: - /KENNETH W. RABE Public Defender 2 5 670 565 2199 2077 3442 J C. •TA•12/16/97•TPL2668991-00 ORIGINAL COP} 0316228 ADMINISTRATIVE OFFICES 580 WALNUT STREET CINCINNATI, OHIO 45202 TEL. 1.513-369-5000 GWM AN RIOAI INSURANCE C XAMI IES TAU 8001 (Ed. 08 94) Policy No. TPL 266-89-91 - 0 Renewal Of - LAWYERS PROFESSIONAL LIABILITY INSURANCE POLICY DECLARATIONS NAMED INSURED AND ADDRESS: KENNETH W. RABER INC., PS 205 N 210TH AVE., SUITE 104 YAKIMA, WA 98908 POLICY PERIOD: 12:01 A.M. Standard Time at the address of the Named Insured as stated herein. From 12/01/97 To 12/01 /98 THIS IS A CLAIMS MADE POLICY. 'LEASE REVIEW THE POLICY CAREFULLY. THE POLICY IS LIMITED .TO LIABILITY =0R ONLY THOSE CLAIMS THAT ARE FIRST MADE AGAINST THE INSURED DURING THE 'OLICY PERIOD. PRODUCER'S NAME AND ADDRESS: SEABURY AND SMITH 720 OLIVE WAY, 1212 SEATTLE WA 98101 Insurance is afforded by AMERICAN NATIONAL FIRE INSURANCE COMPANY (a capital stock corporation, hereinafter called Insurer) FORM OF NAMED INSURED'S BUSINESS: Insured is Proprietorship ( X ) Corporation LIMIT OF LIABILITY: $ 500,000 Each Claim $ 1,000,000 Aggregate ) Partnership 1 Association DEDUCTIBLE: $ 5,000 PREMIUM: $ 848 1 No. of Lawyers Amount Class FORMS AND ENDORSEMENTS applicable to all Coverage Forms and made part of this policy at time of issue are listed on the attached Forms and Endorsements Schedule TAU 8497 (08/94). By acceptance of this policy the Insured agrees that the statements in the Declarations and the Application and any attachments hereto are the Insured's agreements and representations and that this policy embodies all agreements' existing between the Insured and the Company or any of its representatives relating to this insurance. 4111 .".:ounters i gned at • S_e^ , tO,— Date Countersigned. 12—‘ 5 -II) By C CO7^. A,0.,:i7, Authorized Representative CITY OF YAKIMA PUBLIC DEFENDER AGREEMENT FOR 1999 AMENDMENT AND EXTENSION THROUGH DECEMBER 31, 2000: The City of Yakima Public Defender Agreement for 1999, City Contact Number 98-121, is hereby amended and extended pursuant to the authority granted the City Manager under Paragraph 8 thereof. The term of the agreement shall be from January 1, 2000, through December 31, 2000. Paragraph 9 of the Public Defender Agreement for 1999 is hereby amended to read as follows: 9. Compensation. In return for the above -enumerated services, the Public Defender shall receive compensation in a total fixed -fee amount of One Hundred Eighty-three Thousand and no/100 Dollars ($183,500), payable in equal monthly (15th to 14th) monthly installments upon proper voucher for the same, submitted by the Public Defender and received by the Director of Finance and Budget at City Hall, Yakima, Washington. All Payments shall be made to Kenneth W. Raber, Inc., P.S., at 205 North 40th Avenue, #104, Yakima Washington 98098. In all other respects, the Public Defender Agreement for 1999 shall remain in full force and effect. Entered into this Z 2— Day of December 1999. PUBLIC DEF By: CITY OF YAKIMA R.A. ZAIS, 5R. City Manager Attorney at Law ENNETH W. RABER ATTEST: City Clerk City Contract No. -: