HomeMy WebLinkAboutReg 2018-11-19 Item 3C.2 - Agreement - 2019-2020 Public Defense Services with Kirshenbaum & Goss for $30,600 per MonthCOUNCIL AGENDA SYNOPSIS
Initials ---------- ------------ ----------
Meeting Date
11/19/18
Prepared by
CT
Mayor's review
Council review
ITEM INFORMATION
ITEM No.
3C.2
STAFF SPONSOR: DAVID CLINE
ORIGINAL AGENDA DATE: 11/19/18
AGENDA ITENt TITLE 2019-2020 Contract with Kirshenbaum & Goss, Inc. P.S. for Public Defense Services
CATIX)RY Discussion
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Mg Dote 11/19/18
111 Resolution
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[1] Ordinance
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Si' )NS( )1t I. Council Mayor 01-1R ODCD Finance E. Fire ITS OP&R Police P V Li Court
Si' ()Nsoie S The current contract for public defense services expires December 31, 2018. The 2019-
SUMMARY 2020 contract decreases the flat rate to $30,600 per month in alignment with a decrease in
case assignments.
Rivii WED BY C.O.W. Mtg. 111 CDN Comm
El Trans &Infrastructure Arts Comm.
DATE: 11/06/18
Finance
Comm.
Comm.
CHAIR:
Public Safety Comm.
Parks
COMMITTEE
U Planning Comm.
QUINN
RECOMMENDATIONS:
SPONSOR/ADMIN.
CommITIEI
Mayor's Office
Unanimous Approval; Forward to 11/19/18 Consent Agenda
COST IMPACT / FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$ $ $
Fund Source:
Comments:
MTG. DATE
RECORD OF COUNCIL ACTION
11/19/18
MTG. DATE
ATTACHMENTS
11/19/18
Informational Memorandum dated 10/26/2018
Draft Contract for Public Defense Services
Minutes from 11/06/18 Finance Committee
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Allan Ekberg, Mayor
TO:
Mayor's Office - David Cline, City Administrator
Mayor Ekberg
Finance & Safety Committee
FROM: David Cline, City Administrator
DATE: October 26, 2018
SUBJECT: Kirshenbaum & Goss, Inc. P.S. Contract for Public Defense Services
ISSUE
The current contract for public defender services provided by Kirshenbaum & Goss expires
December 31, 2018. Attached is a proposed contract for 2019-2020.
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
As Council may recall, Public Defense Standards were adopted by the Washington State Supreme
Court effective January 1, 2015. These standards delineate the number of cases each attorney can
handle per year and mandates that compensation include administrative and training costs. In
addition to the new Public Defense Standards the federal court decision, Wilbur v. Mt. Vernon also
mandates significant changes to public defense programs.
In 2017-2018 we paid a flat rate of $32,600 per month for public defense services to maintain a Public
Defense Program that fully complies with these requirements. We have evaluated the components of
our program and recommend that we reduce the flat rate to $30,600 per month for 2019 and 2020.
RECOMMENDATION
The Committee is being asked to move this item forward to the consent agenda of the November 19,
2018 City Council Meeting for approval and authorization for execution by the Mayor.
ATTACHMENTS
Draft Contract for Public Defense Services for 2019-2020
Tukwila City Hall a 6200 Southcenter Boulevard • Tukwila, WA 98188 206-433-1800 . Website: TukwilaWA.gov
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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.
3. Duration of Agreement. This Agreement shall be in full force and effect for a period commencing
January 1, 2019 and ending December 31, 2020 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 City shall not be responsible for
withholding or otherwise deducting federal income tax or social security or contributing to the State
Kirshenbaum & Goss 2019 - 2020 Page 1 of 11
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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:
1. 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.
20 Kirshenbaum & Goss 2019 - 2020 Page 2of11
3. Commercial General Liability: The Contractor shall procure and maintain in full force
throughout the duration of this Agreement Commercial General Liability insurance with
limits no less than $1,000,000 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 injury and advertising injury, and liability assumed under an insured
contract. The Commercial General Liability insurance shall be endorsed to provide the
Aggregate Per Project Endorsement ISO form CG 25 03 1185 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 named as an insured under the Contractor's Commercial General Liability
insurance policy with respect to the work performed forthe City using ISO Additional Insured
endorsement CG 20 10 10 01 and Additional Insured -Completed Operations endorsement CG
20 3710 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 all Additional Insureds for
this work with written notice of any policy cancellation, within two business days of their receipt
of such notice.
Kirshenbaum & Goss 2019 - 2020 Page 3 of 11
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7. Record Keeping and Reporting.
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 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 Inspections. 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.
9. 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
identity, marital status, political affiliation or the presence of any sensory, mental or physical
disability in the selection and retention of employees or procurement 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 Agreement 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 remain 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.
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14. Notices.
Notices to the City of Tukwila shall be sent to the following address:
City Clerk
City of Tukwila
6200 Southcenter Blvd.
Tukwila, Washington 98188
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 , 2018.
CITY OF TU KWI LA CONTRACTOR:
Allan Ekberg, Mayor David Kirshenbaum
Attest/Authenticated: Approved as to Form:
Christy O'Flaherty, City Clerk Rachel Turpin, City Attorney
Kirshenbaum & Goss 2019 - 2020 Page 5 of 11
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EXHIBIT A - SCOPE OF SERVICES
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. Mt. 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
attorney/client privilege, 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 telephone number 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 him/her 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. Mt. 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 ethically represent the defendant, said defendant shall be referred back to the
City for further assignment, without cost to the Contractor.
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EXHIBIT A- SCOPE OF SERVICES (CONTINUED)
H. 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.
I. Reporting: Contractor agrees to submit the following reports:
• Monthly Case Assignment List: Includes Cause Number, Name, Charges, Date of Assignment and
Date of First Effort to Contact;
• Monthly Statistics Report: This report shall take substantially the same form as that attached
hereto as Exhibit C and shall be submitted with the monthly invoice;
• Monthly Case Summary Disposition Report: This report shall take substantially the same form as
that attached hereto as Exhibit D 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 substantially the same form as that attached
hereto as Exhibit E 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 falls on a
weekend or holiday;
• 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.
J. 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.
Kirshenbaum & Goss 2019 - 2020 Page 7 of 11
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EXHIBIT B - COMPENSATION AND METHOD OF PAYMENT
1. Effective January 1, 2019 for all public defense services set forth in Exhibit A, Contractor shall be paid a
flat monthly fee of $30,600, which includes $2,000 per month for Video Court services, 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 by the fifth day of the month for all cases assigned to him/her for
the previous month. The bill shall delineate the following:
• City 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 month.
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EXHIBIT C - PUBLIC DEFENSE MONTHLY REPORT
CLIENT CONTACT
# per month
Jail Visits
Out of Court Meetings
Phone Calls
Email Correspondence
MOTIONS PRACTICE
Motions
RESOURCES UTILIZED
Expert Consulted
Immigration Case Assistance/Resources (WDA)
Interpreter (out of court)
Investigator
Referred for Mental Health/Competency Evaluation
Social Services Liaison
COMPLAINTS
Complaint Forms Received from Clients
Complaints Filed with the WSBA
TRAINING (in hours)
WDA
WACDL
Other
Kirshenbaum & Goss 2019 - 2020 Page 9 of 11
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EXHIBIT D - MONTHLY CASE SUMMARY DISPOSITION REPORT
Case Summary Disposition Report
Cause Number
Name
Charges
Date of
Disposition
Disposition
Trial
Date
Jury
or
Bench
Trial
Tried
it of
Appearances
in Court
# of
Meetings
Outside
of Court
Investigator
Usage
Expert
Usage
Social
Services
Liaison
Usage
Interpreter
Usage
Outside of
Court
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EXHIBIT E — CERTIFICATION OF COMPLIANCE
MUNICIPAL COURT FOR
CITY OF TUKWILA
STATE OF WASHINGTON
CERTIFICATION BY:
FOR THE
N_ CALENDAR QUARTER OF
[ No.:
[ j Administrative Filing
CERTIFICATION OF APPOINTED COUNSEL OF
COMPLIANCE WITH STANDARDS REQUIRED BY CrR
3.1/CrRLJ 3.1/JuCR 9.2
The undersigned attorney hereby certifies that for the past quarter and for the remainder of the year:
1. Approximately
0/0 of my practice time is devoted to indigent defense cases for the City of Tukwila.
Approximately % of my practice is devoted to indigent defense cases for the following
jurisdictions:
Approximately % of my practice is devoted to private practice.
2. I am familiar with the applicable Standards adopted by the Supreme Court for attorneys appointed to
represent indigent persons and certify that:
a. Basic Qualifications: I meet the minimum basic professional qualifications in Standard 14.1.
b. Office: I have access to an office that accommodates confidential meetings with clients, and I have
a postal address and adequate telephone services to ensure prompt response to client contact, in
compliance with Standard 5.2.
c. Investigators: I have 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. I will
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: I am familiar with the specific case qualifications in Standard 14.2,
Sections B-K and will not accept appointment in a case as lead counsel unless I meet the
qualifications for that case.
f. Training: I will attend seven (7) hours of criminal defense training approved by the Washington
State Office of Public Defense (OPD) in compliance with the OPD Improvement Program Training
requirements each calendar year.
Attorney, WSBA No. Date
Kirshenbaum & Goss 2019 - 2020 Page 11 of 11
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City of Tukwila
City Council Finance Committee
FINANCE COMMITTEE
Meeting Minutes
November 6, 2018 - 5:30 p.m. - Hazelnut Conference Room, City Hall
Councilmembers: De'Sean Quinn, Chair; Dennis Robertson, Kate Kruller
Staff: David Cline, Peggy McCarthy, Vicky Carisen, Bruce Linton, Chris Flores
CALL TO ORDER: Committee Chair Quinn called the meeting to order at 5:30 p.m.
I. PRESENTATIONS
II. BUSINESS AGENDA
A. MAYOR'S OFFICE CONTRACTS AND AGREEMENTS
Staff is seeking Council approval of the following contracts and agreements:
Prosecution Services
Contract with the Walls Law Firm for a flat rate of $13,100 per month, which is a 3% reduction
from their current monthly rate.
Public Defense Services
Contract with Kirshenbaum & Goss, Inc. for a flat rate of $30,600 per month for 2019 and 2020,
which is a reduction from the 2017-2018 rate of $32,600.
City Attorney Services
Contract with Kenyon Disend for general City Attorney services, public records support, litigation
and contested administrative proceedings, specialized services, and paralegal services in the
amount of $33,940 per month.
Lease Agreement with Sound Cities Association
Renewed lease agreement with Sound Cities Association for office space in the 6300 Building for
a base rent of $24,820.00 in 2019 and $25,550 in 2020. In addition to the base rent, SCA will pay
leasehold excise tax at the rate of 12.84%. Provisions also include internet services for
$100/month, payment of long distance and toll calls, and after-hours emergency callouts or
other agreed upon project work at a flat rate of $150/hour.
Lease Agreement with Alliance One
Renewed lease agreement with Alliance One Management Receivables for space in the court
area at a rate of $930/month, which represents a 3.33% increase. In addition to the monthly rent,
Alliance One will pay leasehold excise tax at the rate of 12.84%.
UNANIMOUS APPROVAL. FORWARD TO NOVEMBER 19, 2018 REGULAR CONSENT AGENDA.
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