HomeMy WebLinkAboutFS 2014-10-07 Item 2E - Agreement - 2015-2016 Public Defender Services with Kirshenbaum and Goss-�1oA-x.
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TO:
City of Tukwila
Jim Haggerton, Mayor
INFORMATIONAL 0��U����������U�
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Mayor Haggerton
Finance & Safety Committee
FROM: David Cline, City Administrator
DATE: September 24, 2014
SUBJECT: Kirshenbaum & Goss, Inc. P.S. Agreement
ISSUE
The current contract for public defender services provided by Kirshenbaum & Goss expires
December 31, 2014. Attached is a proposed contrac for 2015-2016.
BACKGROUND
The City of Tukwila contracts for public defense services providing legal representation for
indigent criminal defendants who qualify for appointment of counsel from the time of screening
for eligibility through trial, sentencing and appeals to the superior court, if necessary.
DISCUSSION
Public Defense Standards were adopted by the Washington State Supreme Court in 2012 and
are effective January 1,2O15. These standards delineate the number of cases each attorney
can handle per year (including reduction of cases allowed based on the amount of time devoted
to private practice) and mandates that compensation include administrative and training costs.
In addition to the new Public Defense Standards the federal court decision, Wi/bur v. Mt. Vernon
also mandates significant changes to public defense programs. Some of the requirement
include:
• Timely and meaningful communication: Attorneys must attempt to meet with their
clients within 72 hours of being appointed;
• Budget Allocations: In addition to the compensation paid for public defense services,
funds must be specifically allocated for:
o Investigative services;
o Interpreter services for meetings with clients outside of court; and
o Expert witnesses;
• Case Management and Tracking: Attorneys must utilize a case management system
that includes time and case load tracking abilities
• Monitoring and Evaluation: Public defense programs must be monitored and
evaluated on a regular basis.
City Administration has taken several steps to ensure that our Public Defense Program is in
compliance with these requirements. The City website has been updated to include
comprehensive information about the Public Defense Program. A monitoring and evaluation
policy has been adopted and implemented that requires:
• Public Defense attorneys to submit monthly statistics reports; quarterly certification of
compliance with the caseload standards; annual reports that include a caseload
summary; complete a status survey each year; and provide proof of Continuing Legal
Education (OLE) credits obtained for the calendar year;
INFORMATIONAL MEMO
Page 2
• The City to, on an annual basis, survey program stakeholders for feedback about
the public defense program and have an independent attorney evaluate the public
defense program on a biennial basis.
The 2O13-2014 flat rate for public defender services was $13,25J} per month (including $1,250
grant funds) and $1O0.00 per case for each case over 12O cases. |O order k] comply with the
new public defense standards and Wilbur v. Mt. Vernon we are recommending increasing the
flat rate to $32,600 per month and paying an additional $200 per day for Attorney of the Day
services month, which occur no more than 5 days per month.
RECOMMENDATION
It is recommended thatthis contract be forwarded to the October 13, 2014 Committee of the
Whole and the October 20, 2014 Regular Meeting for approval.
ATTACHMENTS
Draft Contract for Public Defense Services, 2015-2016
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City of Tukwila
6200 Southcenter Boulevard, Tukwila WA 98188
Contract Number:
CONTRACT FOR PUBLIC DEFENSE SERVICES
This Agreement is entered into by and between the CITY OF TUKWILA, Washington, a
noncharter optional municipal code city hereinafter referred to as "the City," and Kirshenbaum &
Goss, Inc. P.S., a Washington Corporation, hereinafter referred to as "the Contractor,"
WHEREAS, the City has a need to have legal services available for citizens, charged with a
crime who are deemed indigent and are entitled to the effective assistance of counsel at the public
expense; and
WHEREAS, the City desires to have the Contractor perform such services pursuant to
certain terms and conditions; now, therefore,
IN CONSIDERATION OF the mutual benefits and conditions hereinafter contained, the
parties hereto agree as follows:
1. Scope and Schedule of Services to be Performed by Contractor. The Contractor shall
perform those services described on Exhibit A attached hereto and incorporated herein by this
reference as if fully set forth. In performing such services, the Contractor shall at all times
comply with all federal, state, and local statutes, rules and ordinances applicable to the
performance of such services and the handling of any funds used in connection therewith,
including the provisions of Washington Supreme Court Order 25700-A-1013 and the public
defense standards adopted by the City pursuant to TMC 2.70. Compliance with these
standards goes to the essence of this Agreement. The Contractor shall request and obtain
prior written approval from the City if the scope of work or schedule of services is to be
modified in any way.
2. Compensation and Method of Payment. The City shall pay the Contractor for services
rendered according to the rate and method set forth on Exhibit B attached hereto and
incorporated herein by this reference. Compensation is based upon the historical case count for
the City of cases per year, averaging 1200 cases per year. In compliance with the public defense
standards, the case counts include the Contractor's appearance at 48 arraignment calendars per
year.
Duration of Agreement. This Agreement shall be in full force and effect for a period
commencing January 1, 2015, and ending December 31, 2016, unless sooner terminated under
the provisions hereinafter specified.
4. Independent Contractor. Contractor and City agree that Contractor is an independent
contractor with respect to the services provided pursuant to this Agreement. Nothing in this
Agreement shall be considered to create the relationship of employer and employee between the
parties hereto. Neither Contractor nor any employee of Contractor shall be entitled to any
benefits accorded City employees by virtue of the services provided under this Agreement. The
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City shall not be responsible for withholding or otherwise deducting federal income tax or
social security or contributing to the State Industrial Insurance Program, or otherwise assuming
the duties of an employer with respect to the Contractor, or any employee of the Contractor.
5. Indemnification. The Contractor shall defend, indemnify and hold the City, its officers,
agents, officials, employees and volunteers harmless from any and all claims, injuries,
damages, losses or suits including attorney fees, arising out of or in connection with the
performance of this Agreement, except for injuries and damages caused by the sole
negligence of the City. Should a court of competent jurisdiction determine that this
Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out
of bodily injury to persons or damages to property caused by or resulting from the concurrent
negligence of the Contractor and the City, its officers, officials, employees, and volunteers,
the Contractor's liability hereunder shall be only to the extent of the Contractor's negligence.
It is further specifically and expressly understood that the indemnification provided herein
constitutes the Contractor's waiver of immunity under Industrial Insurance, Title 51 RCW,
solely for the purposes of this indemnification. This waiver has been mutually negotiated by
the parties. The provisions of this section shall survive the expiration or termination of this
Agreement.
6. Insurance. The Contractor shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which may arise from
or in connection with the performance of the work hereunder by the Contractor, their agents,
representatives, employees or subcontractors. Contractor's maintenance of insurance, its
scope of coverage and limits as required herein shall not be construed to limit the liability of
the Contractor to the coverage provided by such insurance, or otherwise limit the City's
recourse to any remedy available at law or in equity.
A. Minimum Scope of Insurance. Contractor shall obtain insurance of the types and with
the limits described below:
Professional Liability Insurance: The Contractor shall procure and maintain in full
force throughout the duration of this Agreement Professional Liability insurance with
a minimum coverage of $1,000,000 per claim and $3,000,000 aggregate. Contractor
shall provide evidence of such coverage in a manner and form acceptable to the City
in the City's sole discretion. Cancellation of the required insurance shall
automatically result in termination of this Agreement.
2. Automobile Liability: The Contractor shall procure and maintain in full force
throughout the duration of this Agreement Automobile Liability insurance with a
minimum combined single limit for bodily injury and property damage of $1,000,000
per accident. Automobile liability insurance shall cover all owned, non-owned, hired
and leased vehicles. Coverage shall be written on Insurance Services Office (ISO)
form CA 00 01 or a substitute form providing equivalent liability coverage. If
necessary, the policy shall be endorsed to provide contractual liability coverage.
3. Commercial General Liability: The Contractor shall procure and maintain in full force
throughout the duration of this Agreement Commercial General Liability insurance
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with limits no Iess than $l000,000 each occurrence, $2,000,000 general aggregate
and $2,000,000 products-completed operations aggregate limit. Commercial General
Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover
liability arising from premises, operations, independent contractors, products-
completed operations, stop gap liability, personal i jury and advertising injury, and
liability assumed under an insured contract. The Commercial General Liability
insurance shall be endorsed to provide the Aggregate Per P ject Endorsement ISO
form CG 25 03 )) 85 or an equivalent endorsement. There shall be no endorsement
or modification of the Commercial General Liability Insurance for liability arising
from explosion, collapse or underground property damage. The City shall be narned
as an insured under the Contractor's Commercial General Liability insurance policy
with respect to the work performed for the City using ISO Additional Insured
endorsement CG 20 10 10 01 and Additional Insured-Completed Operations
endorsement CG 20 37 10 01 or substitute endorsements providing equivalent
coverage.
4. Workers' Compensation: The Contractor shall procure and maintain Workers'
Compensation coverage as required by the Industrial Insurance laws of the State of
Washington.
B. Other Insurance Provision. The Contractor's Automobile Liability and Commercial
General Liability insurance policies are to contain, or be endorsed to contain that they
shall be primary insurance with respect to the City. Any insurance, self-insurance, or
insurance pool coverage maintained by the City shall be excess of the Contractor's
insurance and shall not contribute with it.
C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best rating of not less than A: VII.
D. Verification of Coverage. Contractor shall furnish the City with original certificates and
a copy of the amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of the Contractor
before commencement of the work.
E. Subcontractors. The Contractor shall have sole responsibility for determining the
insurance coverage and limits required, if any, to be obtained by subcontractors, which
determination shall be made in accordance with reasonable and prudent business
practices.
F. Notice of Cancellation. The Contractor shall provide the City and alt Additional
Insureds for this work with written notice of any policy cancellation, within two business
days of their receipt of such notice.
7. Record Keeping and
A. The Contractor shall maintain accounts and records, including personnel, property,
financial and programmatic records which sufficiently and properly reflect all direct and
indirect costs of any nature expended and services performed in the performance of this
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Agreement and other such records as may be deemed necessary by the City to ensure the
performance of this Agreement.
B. These records shall be maintained for a period of seven (7) years after termination hereof
unless permission to destroy them is granted by the office of the archivist in accordance
with RCW Chapter 40.14 and by the City.
8. Audits and Ins The records and documents with respect to all matters covered by
this Agreement shall be subject at all times to inspection, review or audit by law during the
performance of this Agreement, to the extent permitted by law.
V. Termination. This Agreement may at any time be terminated by the City giving to the
Contractor thirty (30) days written notice of the City's intention to terminate the same. If the
Contractor's insurance coverage is canceled for any reason, the City shall have the right to
terminate this Agreement immediately.
10. Discrimination Prohibited. The Contractor, with regard to the services to be provided under
this agreement, shall not discriminate against any employee, applicant for employment, on
the basis of race, religion, creed, color, national origin, age, veteran status, sex, sexual
orientation, gender i marital ��*,mdi��u�|i��mt�7��n���y���,
mental or physical disability in the selection and retention of employees or procurernent of
materials or supplies.
11. Assignment and Subcontract. The Contractor shall not assign or subcontract any portion of
the services contemplated by this Agreement, except for prosecution services, without the
written consent of the City.
12. Entire Agreement; Modification. This Agreement, together with attachments or addenda,
represents the entire and integrated Agreement between the City and the Contractor and
supersedes all prior negotiations, representations, or agreements written or oral. No
amendment or modification of this Agreement shall be of any force or effect unless it is in
writing and signed by the parties.
13. Severability and Survival. If any term, condition or provision of this Agreernent is declared
void or unenforceable or limited in its application or effect, such event shall not affect any other
provisions hereof and all other provisions shall retnain fully enforceable. The provisions of this
Agreement, which by their sense and context are reasonably intended to survive the completion,
expiration or cancellation of this Agreement, shall survive termination of this Agreement.
14.
Notices to the City of Tukwila shall be sent to the following address:
City Clerk
City of Tukwila
6200 Southcenter Blvd.
Tukwila, Washington 98188
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Notices to the Contractor shall be sent to the following address:
Kirshenbaum & Goss, Inc. P.S.
1314 Central Ave S Ste. 101
Kent, WA 98032-7430
15. Applicable Law; Venue; Attorney's Fees. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington. In the event any suit,
arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties
specifically understand and agree that venue shall be properly laid in King County, Washington.
The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit.
DATED this day of , 2014.
CITY OF TUKWILA CONTRACTOR:
Mayor Jim Haggerton David Kirshenbaum
Attest/Authenticated: Approved as to Form:
Christy O'Flaherty, City Clerk Rachel Turpin, City Attorney
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EXHIBIT A- SCOPE [FSERVICES
Contractor agrees to provide a level of service equal to or greater than the level of service provided
by an in-house public defense office.
In particular, Contractor agrees to:
A. Provide legal representation services in accordance with the standards adopted by the City in
TMC 2.70, the standards set forth by the Washington State Bar Association Standards for
Indigent Defense Services, the Rules of Professional Conduct, Wilbur v. M/ Vernon, other
related case law and applicable court rules defining the duties of counsel and the rights of
defendants in criminal cases for all indigent criminal defendants charged with a misdemeanor
or gross misdemeanor under ordinances of the City who qualify for appointment of counsel.
The Contractor agrees to attempt to contact the client within 72 hours of notification of
appointment. The Contractor shall provide legal representation for each of these defendants
from time of screening for eligibility through trial, sentencing and appeals to the superior court,
if necessary.
B. Pursuant to TMC 2.70.50 Standard 8, the Contractor shall maintain a case reporting and case
management system that includes number & type of cases, attorney hours and disposition.
C. Determination of indigency for eligibility for appointed counsel under this Agreement shall be
determined by an independent screening process established by the City. Should the Contractor
determine a defendant is not eligible for assigned counsel prior to the establishment of the
u1innncv/c|ieuiprivi|cgc, the Contractor shall so advise the City to reconsider the screening of
that particular individual.
D. The Contractor shall provide to the City Police Department, a te numher or numbers at
which an attorney may be reached 24-hours each day for "critical stage" advice to the
defendants during the course of police investigations and/or arrest for misdemeanor violations
of City Ordinances.
E. Any counsel associated with or employed by the Contractor shall have the authority to perform
the services called for herein and the Contractor may employ associate counsel to assist himlher
at the Contractor's expense. The Contractor and any other attorneys retained pursuant to this
section shall be admitted to practice pursuant to the rules of the Supreme Court of the State of
Washington and shall have read and be fully familiar with the provisions of the Washington
Supreme Court rule and the standards adopted by the City pursuant to TMC 2.70, as well as
the Wilbur v. M/. Vernon decision.
F. The City shall provide to the Contractor, at no cost, one copy of all discoverable material
concerning each assigned case. Such material shall include, where relevant, a copy of the
abstract of the defendant's driving record.
G. In the event representation of a defendant hereunder raises a conflict of interest such that the
Contractor cannot ethica!ly represent the defendant, said defendant shall be referred hack to
the City for further assignment, without cost 10 the Contractor.
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EXHIBIT A- SCOPE {lF SERVICES
B. Contractor agrees to attend seven (7) hours of criminal defense training each year. The training
must be approved by the Washington State Office of Public Defense (OPD) in compliance with
the OPD Improvement Program Training requirements. This requirement also applies to all
associate counsel. Each attorney will submit a copy of their Continuing Legal Education (CLE)
Credits transcript from the Washington State Bar Association (WSBA) with the Annual Report.
Reporting: Contractor agrees to submi the foliowing reports:
• Monthly Statistics Reports: This report shall take substantially the same form as that
attached hereto as Exhibit C and shall be submitted with the monthly invoice;
• Quarterly Certification of Compliance: The Contractor shall certify compliance with the
standards required by CrRLJ 3. 1. The Certification shall take suhstantially the same forrn
as that attached hereto as Exhibit [) and shall be filed quarterly with the Tukwila
Municipal Court on the following dates: January 1, April 1, July 1, and October 1, or the
next court day, if the filing day falis on a weekend or holiday;
• An Annual Report detailing the number of other public defense contracts including
jurisdiction, the number and type of non-public defense cases handled and the total hours
billed for non-public defense cases.
Video Court Services: Provide daily video court public defense services to defendants charged
under ordinances of the City who are detained at the SCORE Jail and qualify for public defense
services in a manner consistent with the accepted practices for similar services, performed to
the City's satisfaction.
K. Attorney of the Day Services: Provide an attorney for weekly arraignment calendars, available
to all unrepresented defendants for consultation.
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EXHIBIT B - COMPENSATION AND METHOD OF PAYMENT
Effective January 1, 2015 for all public defense services set forth in Exhibit A, Contractor shall
be paid a flat monthly fee of $32,600 and $200 per day for Attorney of the Day services.
2. Preauthorized Non-Routine Expenses. Non-routine case expenses requested by Attorney and
preauthorized by order of the Tukwila Municipal Court. Non-Routine expenses include, but
are not limited to:
a. Medical and psychiatric evaluations;
b. Expert witness fees and expenses;
c. Interpreters for languages not commonly spoken in the city or interpreters for
services other than attorney/client communication;
d. Investigation expenses;
e. Medical, school, birth, DMV, 911, emergency communication recordings and
logs, and other similar records when the cost of an individual item does not
exceed $75; and
f Any other non-routine expenses the tukwila municipal court finds necessary and
proper for the investigation, preparation, and presentation of a case.
3. The Contractor shall invoice the City on the first day of the month, or the first workday
thereafter, for all cases assigned to him/her for the previous month. The bill shall delineate the
following:
• City compensation;
• Grant Fund compensation;
• Miscellaneous Charges: Copies of invoices and or receipts for miscellaneous charges
shall be attached to the bill; and
• A list of the cases assigned for the month including the defendant's full name, case
number, charges, date of assignment & date of first contact.
Payment shall be made on or by the 20th day of each and every month thereafter.
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EXHIBIT C — PUBLIC DEFENSE MONTHLY REPORT
CASES APPOINTED
New Filings
Post-Conviction
Special
CLIENT CONTACT
Out of Court Meetings/Phone Calls/Email Correspondence
Jail Visits
MOTIONS PRACTICE
Motions
DISPOSITIONS
Deferred Prosecution
SOC/ Pre-Trial Diversion Agreements
Compromise of Misdemeanors
Plead as Amended (reduction of charges and/or dismissing counts)
Plead as Charged/ Stipulated Facts Trial
FTA's
TRIALS
SET
TRIED
Bench Trial
Jury Trial
FTA's Day of Trial
RESOURCES UTILIZED
Expert Consulted
Immigration Case Assistance/Resources (WDA)
Interpreter (out of court)
Investigator
Referred for Mental Health/Competency Evaluation
Social Worker
COMPLAINTS
Complaint Forms Received from Clients
Complaints Filed with the WSBA
TRAINING (in hours)
WDA
WACDL
Other
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EXHIBIT D — CERTIFICATION OF COMPLIANCE
MUNICIPAL COURT
FOR
CITY OF TUKWILA
STATE OF WASHINGTON
CERTIFICATION BY:
FOR THE
CALENDAR QUARTER OF
| | No.:
[ | Administrative Filing
CERTIFICATION OF APPOINTED
COUNSEL OF COMPLIANCE WITH
STANDARDS REQUIRED BY CiK3.1/CrRLJ
3.1/JuCR 9.2
The undersigned attorney hereby certifies:
1. Approximately 96oicuy practice hmcis devoted to indigent defense cases for the
City of Tukwila.
Approximately % of my practice is devoted to indigent defense cases for the fol
jurisdictions:
Approximately % of my practice is devoted to private practice.
2. 1 am farniliar with the applicahle Standards adopted by the Supreme Court for attorneys
inted to represent indigent persons and certify that:
a. Basic Qualifications: Toueci the minimum basic professional qualifications in Standard
14.1.
b. Office: I have access to an office that accommodates confidential meetings with clients,
and lbavc a postal address and adequate telephone services to ensure prompt response
to client contact, in compliance with Standard 5.2.
c. Investigators: Ibuve investigators available to me and will use investigation services as
appropriate, in compliance with Standard 6.1.
d. Caseload: I will comply with Standard 3.2 during representation of the defendant in my
cases. lvviU not accept a greater number of cases than specified in Standard 3.4, prorated if
the amount of time spent for indigent defense is less than full time.
e. Case Specific Qualifications: lucu familiar with the specific case qualifications in
Standard 14.2, Sections 8 Kuud will not accept appointment in a case as lead counsel
unless 1 meet the qualifications for that case.
�. Training: 1 will attend seven (7) hours of crirninal defense training approved by the
Washington State Office of Public Defense (OPD) in compliance with the OPD
Improvernent Program Training requirements each calendar year.
Attorney, WSBA No. Date
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