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HomeMy WebLinkAboutR-2006-165 Dixon & Lee Public Defender AgreementRESOLUTION NO. R-2006- 165 A RESOLUTION authorizing and directing the City Manager and City Clerk to execute the Public Defender Agreement. WHEREAS, the City of Yakima is mandated by the State to provide a representation to indigent criminal defendants; and WHEREAS, the current Public Defender Agreement expires at midnight, December 31, 2006; and WHEREAS, the City Manager, under authority granted by the City Council, negotiated the Public Defender Agreement; and WHEREAS, as a result of these negotiations, the public defender agreed to perform public defender services in 2007 for $325,000.00; and WHEREAS, as a result of these negotiations, the public defender agreed to perform public defender services in 2008 for $360,000.00; and WHEREAS, as a result of these negotiations, the public defender agreed to perform public defender services in 2009 for $365,000.00; and WHEREAS, the City Council has determined that the proposed Public Defender Agreement for these years is in the best interests of the City of Yakima; 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 with Dixon & Lee, Attorneys at Law. st ADOPTED BY THE CITY COUNCIL this 21 day of November , 2006. ATTEST: City Clerk (ke)res/public defender agrmt avid Edler, Mayor CITY OF YAKIMA PUBLIC DEFENDER AGREEMENT THIS AGREEMENT, made and entered into this o `)cLday of � bc 2006, by and between Dixon & Lee, Attorneys at Law, 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 are attorneys licensed to practice law in the State of Washington, with offices at 402 East Yakima Avenue,Suite 380, Yakima, WA 98901; 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 Municipal Court and its various departments; now, therefore, IT IS HEREBY mutually agreed as follows: 1. Duties. The Public Defender shall provide quality defense attorney services for indigent defendants charged with violating misdemeanor and gross misdemeanor allegations occurring within the City of Yakima and processed by the City of Yakima Municipal Court. 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, all proceedings in connection with deferred prosecutions, and competency hearings shall be the responsibility of the Public Defender. Court appearances during arraignments shall also be required as may be directed from time to time by the 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 twenty four (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. At a minimum, the Public Defender shall provide four full time public defenders. Two attorneys working half time shall equal one full time attorney. 4. Duty in Case of Conflict. In the event that representation of a defendant creates a conflict of interest, such that the assigned Public Defender cannot represent the defendant, the Public Defender shall be responsible for the referral of the defendants 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. Insurance. Without limiting the Public Defender's indemnification, it is agreed that the Public Defender shall maintain in force, at all times during the performance of this Agreement, a policy or policies of insurance covering its operation as described below. Page 1 of 8 A. General Liability Insurance The Public Defender shall maintain continuously public liability insurance with limits of liability not Tess than: Two Hundred and Fifty Thousand Dollars ($250,000) for each person, personal injury, Five Hundred Thousand Dollars ($500,000) for each occurrence, property damage, liability, or a combined single limit of Five Hundred Thousand Dollars ($500,000) for each occurrence, personal injury and/or property damage liability. The Public Defender shall provide a certificate of insurance or, upon written request of the City of Yakima, a duplicate of the policy as evidence of insurance protection. The Public Defender shall immediately notify the City of any communication with their insurance provider canceling or threatening to cancel insurance coverage under this provision. B. Professional Liability Insurance The Public Defender shall maintain or ensure that its professional employees maintain professional liability insurance for any and all acts which occur during the course of their employment with the Public Defender which constitute professional services in the performance of this Agreement. For purposes of this Agreement, professional services shall mean any services provided by a licensed professional. Such professional liability insurance shall be maintained in an amount not Tess than One Million Dollars ($1,000,000) combined single limit per claim/aggregate. The Public Defender further agrees that it shall have sole and full responsibility for the payment of any funds where such payments are occasioned solely by the professional negligence of its professional employees and where such payments are not covered by any professional liability insurance, including but limited to the amount of the deductible under the insurance policy. The Public Defender shall not be required to make any payments for professional liability, if such liability is occasioned by the sole negligence of the City. The Public Defender shall not be required to make payments other than its judicially determined percentage, for any professional liability which is determined by a court of competent jurisdiction to be the result of the comparative negligence of the Public Defender and the City. Such insurance shall not be reduced or canceled without thirty (30) days prior written notice to the City. The Public Defender shall provide certificates of insurance or, upon written request of the City, duplicates of the policies as evidence of insurance protection. C. Automobile Insurance The Public Defender shall maintain in force at all times during the performance of this contract a policy or policies of insurance covering any automobiles owned, leased, hired, borrowed or used by any employee, agent, subcontractor or designee of the Public Defender to transport clients of the City. Such insurance policy or policies shall specifically name the City,- their elected and appointed officials, employees, volunteers, and agents as additional insureds. Said insurance coverage shall be primary insurance with respect to the City, and any insurance, regardless of the form, maintained by the City shall be in excess of any Page 2 of 8 insurance coverage which the Public Defender is required to maintain pursuant to this Agreement. Automobile liability as stated herein shall be maintained at Five Hundred Thousand Dollars ($500,000) combined single limit per accident for bodily injury and property damage. D. Workers' Compensation The Public Defender shall maintain Workers' Compensation coverage as required by law. The Public Defender shall provide a certificate of insurance or, upon written request of the City, a certified copy of the policy as evidence of insurance protection. 6. Specific Duties. The Public Defender shall provide services necessary or incidental to the performance of the work set forth in the PUBLIC DEFENDER - STATEMENT OF WORK - EXHIBIT B and consistent with CLIENT REPRESENTATION PRACTICE GUIDELINES- Exhibit C. 7. Term and Renegotiation. This Agreement shall commence on January 1, 2007, and terminate on December . 31, 2009, 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 Public Defender elect to re -negotiate this Agreement for an additional term beyond 2009, he shall submit a proposal for compensation for additional service on or before August 1, 2009. .8. Compensation. In return for the above -enumerated services, the Public Defender shall receive compensation in a total fixed -fee amount as follows: For the calendar year of 2007: Three Hundred and Twenty Five Thousand Dollars ($325,000.); and For the calendar year of 2008; Three Hundred and Sixty Thousand Dollars ($360,000.); and For the calendar year of 2009: Three Hundred and Sixty Five Thousand Dollars (365,000.). The aforementioned amounts shall be 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 Dixon & Lee, Attorneys at Law, 402 East Yakima Avenue, Suite 380, Yakima, WA, 98901. 9. 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. 10. Assignment. The Public Defender shall not assign, transfer, or subcontract this Agreement without obtaining prior written approval from the City. 11. Successors Bound. Subject to the provisions of Section 10, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, and assigns. Page 3 of 8 12. Ethic Compliance and Reports. The Public Defender will provide the aforementioned services in conformity with the 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 Public Defender on a form approved by the City Manager on or before August 1 of each year. 13. Taxes and Assessments. The 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, the Public Defender shall pay the same before it becomes due. 14. 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 deemed to be an employee, agent, servant, or representative of the City Municipal 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 Public 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. 15. Indemnity. The Public Defender hereby agrees to release, indemnify, protect, defend and save harmless the City 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 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 and their elected or appointed officials, employees, volunteers, and agents. In case of suit or action brought against the City 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. 16. 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. 17. 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. Page 4 of 8 18. 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. 19. 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 20. 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 Agreement, made by the other, and that this Agreement may not be changed except by an instrument in writing signed by both parties. 21. 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 op-- , 2006. CITY OF YAKIMA By A.ZA fJL City Manager 129 North 2nd Street Yakima, WA 98902 ATTEST: AtAcruzli, 6-tra-R— City Contract No. 02406 ,-//1 Resolution No. R-aoo(0-/!05 e PUBLIC DEFENDER By: Publ. Defbn Atto ney At Law )0c/c) 402 East Yakima Avenue, Suite 386 Yakima, WA 98901 ifIN Page 5 of 8 EXHIBIT B PUBLIC DEFENSE STATEMENT OF WORK 1. PUBLIC DEFENDER CONTRACTOR DUTIES AND RESPONSIBILITIES — The Public Defender shall provide high quality indigent defense representation in the cases assigned to it by the Yakima Municipal Court. The representation shall be consistent with EXHIBIT C, CLIENT REPRESENTATION PRACTICE GUIDELINES as set forth below. The representation shall be provided in a professional and skilled manner and shall be in compliance with the Washington State Rules of Professional Conduct as well as case law and applicable court rules defining the duties of counsel and the rights of defendants in criminal cases. The Public Defender's primary and most fundamental responsibility is to promote and protect the best interests of the client. 2. TASKS — The Public Defender shall perform the following tasks with regard to each case to which the Public Defender is appointed. A. Maintain a law office with a suitable client interview facility. The Public Defender will provide adequate phone lines, computers, postage, office equipment, office supplies, office furniture and legal research tools to maintain a smooth running and efficient law office. B. Receive notices of appointment for indigent defendants each court day. Set up and maintain files on each assigned defendant. C. Establish and maintain client contact, keep the client informed of the progress of the case, and effectively provide legal advice to the client throughout the representation. D. 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. E. Meet at least weekly with the Assigned Prosecutor to discuss pending matters. F. Maintain staff to answer the Public Defender's telephone during regular work hours (Monday -Friday, on a schedule established by the Contractor). G. Maintain continuity of representation at all stages of a case. Except for illness, vacation or occasional conflicts, the assigned Public Defender shall appear at all Municipal Court hearings with their clients. H. Each full time. attorney shall devote at least thirty four (34) hours and each half time attorney shall devote at least twenty (20) hours of his/her professional time to the delivery of services pursuant to this Agreement. Page 6 of 8 3. COMPLAINTS A. The Public Defender shall respond in writing to complaints addressed by the City. B. The Public Defender shall immediately notify the City of Yakima in writing when it become aware that a complaint lodged with the Washington State Bar Association has resulted in reprimand, suspension, or disbarment. Page 7 of 8 EXHIBIT C CLIENT REPRESENTATION PRACTICE GUIDELINES Meet and communicate regularly with the client • Thoroughly explain to clients the constitutional, statutory and other rights that they have with regards to their case. • Thoroughly explain to clients the elements of the offense(s) that the City must prove in order to obtain their conviction at a trial. • Describe case procedures and timelines. • Listen to client's questions and respond to them. • Enable clients to candidly communicate with counsel. • Facilitate agreements by realistically evaluating allegations and evidence with clients. • Promptly communicate all offers of settlement. Prepare cases well • Conduct high quality, early case investigation. • Conduct early case negotiations. • Use discovery appropriately. • Prepare for and participate in alternate resolution opportunities that may be available. • Obtain experts and evaluators for cases involving disability, mental health, substance abuse or similar issues, when appropriate. • Draft well researched and written motions and other legal memoranda and other documents. • Competently and aggressively litigate hearings and trials if no agreement is reached. • Appear at all court hearings with clients. Ensure clients have adequate access to services, including court ordered treatment and/or counseling • Explain the importance of obtaining court ordered treatment and/or counseling services to clients. • Develop a thorough knowledge of the resources available. • Explore with clients ways to effectively participate in court ordered treatment and/or counseling. • Ask clients for feedback if obstacles prevent or impede their participation, and follow up with the agency and in court when appropriate. • In appropriate cases, encourage clients to obtain necessary evaluations and enroll in counseling and/or treatment even before ordered by the court to do so. Prevent continuances and delays within attorney's control • Treat all cases assigned to counsel with the highest priority. • Avoid over scheduling whenever possible. • Request continuances only if they are needed for substantive reasons. Page 8 of 8 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 13 For Meeting of 11/21/06 ITEM TITLE: Consideration of resolution authorizing contract for indigent defense services with Dixon & Lee SUBMITTED BY: Dick Zais, City Manager Dave Zabell, Assistant City Manager CONTACT PERSON/TELEPHONE: Dave Zabell 575-6040 SUMMARY EXPLANATION: Attached for your review, consideration, and ratification is a Resolution authorizing the City Manager to execute an agreement with the law firm of Dixon and Lee to provide mandated indigent defense services to the City, the implementing agreement, the firm's response to the City's Request for Qualifications, and a copy of the policy issue on indigent defense approved by the City Council at their November 14, 2006 meeting. As outlined in the approved policy issue, several options were considered for provision of indigent defense services. These options were reviewed the City Council Public Safety Committee at their November 1 meeting, along with the submittals from Dixon and Lee. The Committee recommends that the City continue contracting for indigent defense services and that staff go forward with negotiating a contract with Dixon and Lee for provision of these services (see attached). Negotiations are near completion, however, some details are yet to be resolved with respect to the transition from the current contractor to the new provider, some minor changes to the contract may be necessary. As a result, approval is sought with allowance for final discretion by the City Manager. X Resolution Ordinance Contract X Other (Misc. Information) Funding Source APPROVED FOR SUBMITTAL ity Manager STAFF RECOMMENDATION: Approve Resolution and authorize City Manager to execute contract with Dixon and Lee subject to minor changes at the City Manager's discretion. BOARD/COMMISSION RECOMMENDATION: Council Public Safety Committee reviewed this issue at their November 1 meeting and recommend approval. COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2006-165