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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. — ..-- Shane M. Silverthorn 9-S- 2--2-7 Da e °9 Date