HomeMy WebLinkAbout20-121 - Kirshenbaum & Goss, Inc - 2021-2022 Public Defense ServicesCity of Tukwila
6200 Soutncenter Boulevard, Tukwila WA 98188
Contract Number: 20-121
Council Approval 11/16/20
CONTRACT FOR PUBLIC DEFENSE SERVICES
Th is Agreement is entered into by and between the CITY OF TUKWILA, Washington, a non -charter
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" (collectively, "the Parties").
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. Com ensation and Method of Pa ment. 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, except as may be amended by the Parties following a mid -contract review to occur in
approximately October 2021. A mutually agreed compensation adjustment, if any, may take effect on
January 1, 2022. Compensation is based upon the historical case count for the City of cases per year,
averaging 700 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 A reement. This Agreement shall be in full force and effect for a period commencing
January 1, 2021 and ending December 31, 2022 unless sooner terminated under the provisions
hereinafter specified.
4. Inde endent 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
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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
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 Liabilit Insurance: The Contractor shall procure and maintain in full force
throughout the duration of this Agreement Professional Liability insurance with a minimum
coverage of $2,000,000 per claim and $2,000,000 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.
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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 $2,000,000 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 11 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 named 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' Com sensation: 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.
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7. Record Kee m and Re ortin
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. Ass! nment 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 A reement• 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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CT
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. A slicable Law Venue Attorne '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 19th day of November , 2020.
CITY OF TUKWILA CON
C. -4(C~ Se5e/cg
Allan Ekberg, Mayor
11/19/2020
RACTOR:
David Kirshenbaum
Attest/Authenticated: Approved as to Form:
Oh4.ez_e-9 0.6,7(eth&9
Cji
ChristyO'Flaherty, City Clerk Kari L. Sand, City Attorney
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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:
1. 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.
2. 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.
3. 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.
4. 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.
5. 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 pu rsuant 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.
6. 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.
7. 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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8. 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.
9. 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;
• 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 D 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 Resort: 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.
10. 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.
11. Attorney of the Day Services: Provide an attorney for weekly arraignment calendars, available to all
unrepresented defendants for consultation.
12. Client Contact Prior to Court Hearings: Contact all clients 1-2 business days prior to their court hearing
to confirm access to and knowledge of how to utilize the necessary technology to appear before the
court.
13. Additional Coverage for Review Calendars: Provide a minimum of two attorneys at each review
calendar to expedite efficient hearings.
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EXHIBIT B - COMPENSATION AND METHOD OF PAYMENT
1. Effective January 1, 2021 for all public defense services set forth in Exhibit A, Contractor shall be paid a
flat monthly fee of $29,100, which includes $2,000 per month for Video Court services, $200 per day for
Attorney of the Day services, and $1,500 per month Office of Public Defense (OPD) grant funds to
compensate for additional services provided as outlined in ExhibitA Sections 12 & 13. Should provision
of the additional services be modified in any way, compensation will be adjusted accordingly. OPD
grant funds have been awarded for 2021. A mid -contract review will be conducted to adjust grant
funding as needed.
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.
4. The Contractor and the City agree to conduct a mid -contract review to occur in approximately
October 2021 to evaluate caseloads and compensation, including but not limited to the 2022 Office of
Public Defense Grant Award.
Payment shall be made on or by the 20"' day of each month.
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EXHIBIT C - PUBLIC DEFENSE MONTHLY REPORT - Kirshenbaum & Goss
CLIENT CONTACT
Jail Visits
Out of Court Meetings
Phone Calls
Email Correspondence
MOTIONS PRACTICE
Motions
RESOURCES UTILIZED
Expert Consulted
# per month
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
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EXHIBIT D — CERTIFICATION OF COMPLIANCE
MUNICIPAL COURT FOR
CITY OFT0KW|L&
STATE OF WASHINGTON
CERTIFICATION BY:
FOR THE
CALENDAR QUARTER OF_______
[ ] No.:
[ ] Administrative Filing
CERTIFICATION OFAPPOINTED COUNSEL OF
COMPLIANCEWITH STANDARDS REQUIRED BY CrR
The undersigned attorney hereby certifies that for the wss°uarterand for the remainder ofthe '.ear:
1. Approximately %of my practice tirne 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 certifythat:
a. Bask Qualifications: | meet the minimum basic professional qualifications inStandard 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: 1 have investigators availableto rne and will use investigation services as
appropriate, in cornpliance with Standard 6.1.
d. Caseload: I will comply with Standard 3.2 during representation of the defendant in my cases. |vviU
not accept agreater number of cases than specified inStandard 3.4,prorated ifthe amount of time
spent for indigent defense ialess than full time.
e. Case Specific Qualifkations: 1 arn farniliar 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 forthat case.
f. Training: I will attend seven (7) hours of criminal defense training approved by the Washington
State Office of Public Defense (OPD) in cornpliance with the OPD Improvement Program Training
requirernents each calendar year.
Attorney, WSBA No.
Date
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