HomeMy WebLinkAboutSilverthorn, Shane M. - Appellate Representation of Indigent DefendantsCITY OF YAKIMA
APPELLATE REPRESENTATION OF INDIGENT DEFENDANTS
THIS AGREEMENT, made and entered into this 10th day of October, 2011, by
and between Shane M. Silverthorn, Attorney at Law, of Ellensburg, Washington
hereinafter the "Appellate Representation Provider", and the CITY OF YAKIMA, a
municipal corporation, hereinafter referred to as the "City". The responsible attorney for
the appellate representation provider will be Shane M. Silverthorn.
WHEREAS, the Appellate Representation Provider (is) (an) (are) attorney(s)
licensed to practice law in the State of Washington, with offices at 100 W. 3rd Street,
Ellensburg, WA 98926 and;
WHEREAS, the parties hereto are desirous of effectuating an agreement
whereby the Appellate Representation Provider will provide appellate representation for
indigent appellants and other eligible persons who are charged with offenses in the
Yakima Municipal Court and its various departments; now, therefore,
IT IS HEREBY mutually agreed as follows:
1. Duties. The Appellate Representation Provider shall provide as -assigned quality
appellate representation for indigent appellants seeking review of a final decision
including conviction for misdemeanor and/or gross -misdemeanor crime(s) occurring
within the City of Yakima and processed by the City of Yakima Municipal Court.
2. Duty in Case of Conflict. In the event that representation of an appellant creates a
conflict of interest, such that the assigned Appellate Representation Provider cannot
represent the appellant, the Appellate Representation Provider shall immediately
notify the City of the conflict.
3. Insurance. Without limiting the Appellate Representation Provider's indemnification,
it is agreed that the Appellate Representation Provider 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.
A. General Liability Insurance
The Appellate Representation Provider shall maintain continuously public liability
insurance with limits of liability not less than One Million Dollars ($1,000,000) for
each occurrence, personal injury, and/or property damage liability.
Such insurance policy or policies shall specifically name the City, its 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
insurance coverage which the Appellate Representation Provider is required to
maintain pursuant to this Agreement.
Appellate Representation Contract/Page 1 of 7
The Appellate Representation Provider 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 Appellate Representation Provider 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 Appellate Representation Provider 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 Appellate Representation Provider
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 less than
One Million Dollars ($1,000,000) combined single limit per claim/aggregate. The
Appellate Representation Provider further agrees that it shall have sole and full
responsibility for the payment of any funds where such payments are occasioned by
the professional negligence of its professional employees and where such payments
are not covered by any professional liability insurance, including but not limited to the
amount of the deductible under the insurance policy. The Appellate Representation
Provider shall not be required to make any payments for professional liability, if such
liability is occasioned by the sole negligence of the City.
Such insurance shall not be reduced or canceled without thirty (30) days' prior
written notice to the City. If such insurance is obtained on a "claims made" basis, the
Appellate Representation Provider will continue to carry coverage for not less than
three (3) years after expiration of this Agreement, and will provide a certificate in
form and content satisfactory to the City demonstrating such continuing coverage.
The Appellate Representation Provider 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 Appellate Representation Provider shall maintain in force at all times during the
term of this Agreement a policy or policies of insurance covering any automobiles
owned, leased, hired, borrowed or used by any employee, agent, subcontractor or
designee of the Appellate Representation Provider to transport clients pursuant to
this agreement with the City.
Such insurance policy or policies shall specifically name the City, its 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
insurance coverage which the Appellate Representation Provider is required to
maintain pursuant to this Agreement.
Appellate Representation Contract/Page 2 of 7
Automobile liability coverage as stated herein shall be maintained at One Million
Dollars ($1,000,000) combined single limit per accident for bodily injury and property
damage.
D. Workers' Compensation
The Appellate Representation Provider shall maintain Workers' Compensation
coverage as required by law. The Appellate Representation Provider shall provide a
certificate of insurance or, upon written request of the City, a certified copy of the
policy as evidence of insurance protection.
4. Specific Duties. The Appellate Representation Provider shall provide services
necessary or incidental to the performance of the work set forth in the APPELLATE
REPRESENTATION PROVIDER - STATEMENT OF WORK - EXHIBIT A.
5. Term and Renegotiation. This Agreement shall commence on the date of last
signature and terminate 24 months thereafter, 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 Appellate 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 Appellate
Representation Provider shall receive compensation as follows:
The Appellate Representation Provider shall be compensated at the attorney rate of
$150.00/hr and Paralegal rate of $75.00/hr plus expenses; provided that the
maximum compensation payable for attorney fees per case through the Superior
Court level will be $3000.00 (reimbursement for expenses is extra and not included
in this amount).
The aforementioned amount shall be payable when billed to the City. The bill shall
include a breakdown of the hourly service provided and shall be submitted to:
City of Yakima Accounts Payable
129 No. 2nd Street
Yakima, WA 98901
6. Transcription. The City shall, in addition, compensate the Appellate Representation
Provider for the cost of court record transcription incurred by the Appellate
Representation Provider on behalf of indigent clients covered by this Agreement.
7. Expert Witnesses. Where necessary and appropriate to the representation, the
City shall compensate the Appellate Representation Provider for expert witness fees
incurred by the Appellate Representation Provider on behalf of indigent clients
covered by this Agreement upon application and approval of the relevant court.
8. Assignment. The Appellate Representation Provider shall not assign, transfer, or
subcontract this Agreement without obtaining prior written approval from the City.
Appellate Representation Contract/Page 3 of 7
9. 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.
10. Ethic Compliance, Reports, and Training. The Appellate 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 Appellate Representation provider on a form approved by the City Manager
on or before August 1 of each year. The report must include a statement of hours
billed for nonpublic 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 Appellate
Representation provider agrees to attend training approved by the Washington
Office of Public Defense 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.
11. Taxes and Assessments. The Appellate Representation Provider 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 Appellate
Representation Provider shall pay the same before it becomes due and indemnify
and hold the City harmless fro any liability arising out of the same.
12. Independent Contractor. The parties agree that the Appellate Representation
Provider 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 Appellate
Representation Provider. No agent, employee, subcontractor, or representative of
the Appellate 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, subcontractor, or representative of the Appellate Representation
Provider are not entitled to any of the benefits the City provides for its employees.
The Appellate Representation Provider 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.
13. Indemnity. The Appellate Representation Provider hereby agrees to release,
indemnify, protect, defend and save harmless the City and its 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 Appellate Representation
Provider or his or her employees or subcontractors. Provided, however, that nothing
herein shall be deemed to require the Appellate Representation Provider to
Appellate Representation Contract/Page 4 of 7
indemnify the City or its elected or appointed officials, agents, volunteers, or
employees for injury to persons, corporation, and/or property arising from and to the
extent attributable to the negligence of the City and its elected or appointed officials,
employees, volunteers, and agents. In case of suit or action brought against the
City and/or its elected or appointed officials, agents, volunteers, or employees for
damages arising out of or by reason of acts of the Appellate Representation
Provider, the Appellate Representation Provider agrees to pay all costs of defense,
including reasonable attorney's fees, and any judgment resulting therefrom.
14. Nondiscrimination. The Appellate Representation Provider shall not discriminate
on the basis of race, creed, color, national origin, or physical, mental, or sensory
handicap in the performance of this Agreement.
15. Termination. Either party may terminate this Agreement, with or without cause,
upon ninety (90) days written notice sent by certified mail to the other party at the
address listed in this Agreement.
16. 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.
17. 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
18. 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.
19. 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.
(Signatures on next page)
Appellate Representation Contract/Page 5 of 7
B
DATED this 10th day of October, 2011.
CITY OF YAKIMA
Donald B. Coope
City Manager
129 North 2nd Street
Yakima, WA 98901
ATTEST:
By:
Shane M. Silverthorn
Attorney at Law
100 W. 3rd Street
Ellensburg, WA 98926
APPELLATE REPRESENTATION
City Contract No.
Resolution No.
Appellate Representation Contract/Page 6 of 7
EXHIBIT A
APPELLATE REPRESENTATION PROVIDER
STATEMENT OF WORK
1. APPELLATE REPRESENTATION PROVIDER CONTRACTOR DUTIES AND
RESPONSIBILITIES — The Appellate Representation Provider shall provide high
quality indigent appellate representation in the cases assigned to it by the
Yakima Municipal Court. The representation shall be provided in a professional
and skilled manner and shall be in compliance with the Rules of Appellate
Procedure, the Rules for Appeal of Decisions in Courts of Limited Jurisdictions,
and the Washington State Rules of Professional Conduct, as well as all
applicable case law, statutes, regulations and all other applicable court rules
defining the duties of counsel and the rights of defendants in criminal appellate
cases. The Appellate Representation Provider's primary and most fundamental
responsibility is to promote and protect the best interests of the client.
2. TASKS — The Appellate Representation Provider shall perform the following
tasks with regard to each case to which the Appellate Representation Provider is
appointed.
A. Maintain a law office with a suitable client interview facility. The Appellate
Representation Provider 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 appellants each court day or
as necessary. Set up and maintain files on each assigned appellant.
C. Establish and maintain client contact, keep the client informed of the
progress of the appeal.
D. Maintain staff to answer the Appellate Representation Provider's
telephone during regular work hours (Monday -Friday, on a schedule
established by the Contractor).
E. Maintain continuity of representation at all stages of a case.
3. COMPLAINTS
A. The Appellate Representation Provider shall respond in writing to
complaints addressed to the City.
B. The Appellate Representation Provider 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.
Appellate Representation Contract/Page 7 of 7
AGREEMENT MODIFICATION NO. 1
PROJECT: City of Yakima RFP No. 11124
DESCRIPTION: Appellate Representation of Indigent Defendants
VENDOR: Shane M. Silverthorn, Attorney at Law
This agreement modification shall amend and be incorporated into the Agreement dated October 10,
2011 between the City of Yakima and Shane M. Silverthorn, Attorney at Law. The parties agree that the
following changes be made to the term of the contract, which shall be amended as follows:
Page 3, No. 5. Term and Renegotiation: The period of performance has been extended to October
10, 2014. This agreement may be extended for two additional one year periods by mutual
agreement. Should the Appellate Representation Provider elect to re -negotiate this Agreement for
an additional term, he shall submit a proposal for compensation of additional service at least 30
days before the expiration date.
Except as expressly modif •herein, . 1 other terms and conditions of the contract dated October 10,
2011 shl remain in full f
CONTRACTOR ACCEPTAL�LCI_ E.
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Shane M. Silverthorn 9-S- 2--2-7
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Date