HomeMy WebLinkAbout22-145 - Kirshenbaum & Goss, Inc - 2023-2024 Public Defense ServicesCity of Tukwila
6200 Southcenter Boulevard, Tukwila WA 98188
Contract Number: 22-145
Council Approval 11/21/22
CONTRACT FOR PUBLIC DEFENSE SERVICES
ThisAgreement 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 those charged with a crime in
Tukwila Municipal Court who are deemed indigent and are entitled to the effective assistance of counsel
at the public expense; and
WHEREAS, the Federal Court decision Wilbur v. Mt. Vernon emphasizes the need for the City to
provide indigent defense services to clients ofthe Tukwila Municipal Court in a manner which fully
complies with the City's obligations under the Sixth Amendment to the United States Constitution; 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. Base Compensation is in consideration of a caseload not to exceed 960 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, 2023 and ending December 31, 2024 unless sooner terminated under the provisions
hereinafter specified.
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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 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. 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 S1,000,000 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.
2. Commercial General Liability: The Contractor shall procure and maintain in full force
throughout the duration of this Agreement Commercial General Liability insurance with
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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, stop -gap independent contractors, personal injury and
advertising injury. 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 2026.
3. Workers' Compensation: The Contractor shall procure and maintain Workers'
Compensation coverage as required by the Industrial Insurance laws of the State of
Washington.
4. 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.
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 °lithe work.
E. 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.
7. Record Kee
•
in 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.
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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. 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.
9. Discrimination Prohibited. The Contractor, with regard to the work performed by it under this
Agreement, will not discriminate on the grounds of race, religion, creed, color, national origin,
age, veteran status, sex, sexual orientation, gender identity, marital status, political affiliation,
the presence of any disability, or any other protected class status under state or federal law, in
the selection and retention of employees or procurement of materials or supplies.
10. Assignment and Subcontract. The Contractor shall not assign or subcontract any portion of the
services contemplated by this Agreement without the written consent of the City.
11. Entire Agreement. 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.
12. 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:
Kirshen ba um & Goss, Inc. P.S.
1314 Central Ave S Ste. 101
Kent, WA 98032-7430
13. Severabilit 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 ofthis 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. 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 29th day of November , 2022.
CITY OF TUKWILA CONTRACTOR:
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Christy O'Flaherty, City Clerk Kari L. Sand, City Attorney
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EXHIBIT A - SCOPE OF SERVICES
1. General Scope of Representation. 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. 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.
3. Attorney of the Day Services. Provide an attorney for weekly arraignment calendars, available to all
unrepresented defendants for consultation.
4. Screening. 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.
5. 24 -Hour Contact Information. 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.
6. Authority to practice. 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 and with written consent from the City in compliance
with Section 11 of this Agreement. 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 dec.'s' on.
7. Conflicts. 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
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back to the City for further assignment, without being included in the caseload assignments for
the Contractor.
8. Discovery. 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.
9. Training. 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.
10. Case management. Pursuant to TMC 2.70.050 Standard 8, the Contractor shall maintain a case
reporting and case management system that includes number & type of cases, attorney hours and
disposition.
11. 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 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.
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. Base Compensation Rate. Effective January 1, 2023 for all public defense services set forth in Exhibit
A, Contractor shall be paid a flat monthly fee of $29,500, which includes $1,500 per month Office of
Public Defense (OPD) grant funds to compensate for additional services provided as outlined in
Exhibit A 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 2023. If needed,
a mid -contract review will be conducted to adjust compensation based on grant funding.
2. Caseload Compensation. Caseload assignments will be evaluated on a quarterly basis. For each case
per quarter over 240 cases additional compensation will be provided atthe rate of $375 per case.
3. Appeals. The City shall pay the Attorney an additional sum of $800 per RALJ appeal filed with the
King County Superior Court in which a brief has been filed by the Contractor.
4. Community Court. The Tukwila Municipal Court is researching implementation of a cross-
ju risdictional Community Court. If a Community Court is implemented during the term of this
contract, the impact to provision of public defense services for the Community Court will be
assessed and compensation will be adjusted accordingly.
5. Preauthorized Non -Routine Expenses. Non -routine case expenses requested by Attorney and
preauthorized by order ofthe 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.
6. Invoices. 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.
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EXHIBIT C - PUBLIC DEFENSE MONTHLY REPORT - Kirshenbaum & Goss
CLIENT CONTACT
Jail Visits
# per month
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
TRAIN
WDA
NG (in hours)
WACDL
Other
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EXHIBIT — CERTIFICATION OF COMPLIANCE
MUNICIPAL COURT FOR
CITY OF TUKWILA
STATE OF WASHINGTON
CERTIFICATION BY:
FOR THE
CALENDAR QUARTER OF
[lNo.:
[ Administrative Filing
CERTIFICATION OFAPPOINTED COUNSEL OF
COMPLIANCEWITH STANDARDS REQUIRED BY CrR
The undersigned attorney hereby certifies that for the as uarter and for the remainder of the ear:
1. Approximately %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:
Approxirnately JY0 of rny practice is devoted to private practice.
2. I am familiar with the applicable Standards adopted bythe Supreme Court for attorneys appointed to
represent indigent persons and certify that:
a. Basic 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 postai address and adequate telephone services to ensure prompt response to client contact, in
cornpliance with Standard 5.2.
c. Investigators: I have investigators available to me 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. |wlU
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 tirne.
e. Case Specific Qualifications: 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: |w/liiattend seven (7) hours of crirninal defense training approved by the Washington
State Office of Public Defense (OPD) in compliance with the OPD Improvement Program Training
requirernents each calendar year.
Attorney, WSBA No.
Date
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