CITY OF BULLHEAD CITY

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1 CITY OF BULLHEAD CITY * COUNCIL COMMUNICATION MEETING DATE: MAY 5, 2015 SUBJECT: DEPT OF ORIGIN: DATE SUBMITTED: MAY 5, 2015 SUBMITTED BY: APPROVAL OF A ONE (1) YEAR EXTENSION OF THE ORIGINAL THREE (3) YEAR AGREEMENT FOR PROFESSIONAL SERVICES FOR INDIGENT LEGAL DEFENSE (PRIMARY PUBLIC DEFENDER) BY ATTORNEY DELORES PETICA-MCKEE FOR FY CITY MANAGER TOBY COTTER, CITY MANAGER SUMMARY: This is a one (1) year extension of the original three (3) year Professional Services Agreement for Indigent Legal Services (550 completed cases per year) provided by Delores Petica-McKee. Ms. McKee has satisfactorily provided Indigent Legal Services as the Primary Public Defender in the Municipal Court for the past sixteen (16) years. Indigent defendants must be provided with legal representation per U.S. Supreme Court case Gideon v. Wainwright 372 U.S. 335 (1963) and subsequent Court decisions. Defendants in 75% of cases are assessed attorney costs and the City does recoup monies for the legal representation. Estimated recoupment for FY is $122, for all Public Defender cases. The City is familiar with Ms. McKee's qualifications and her satisfactory services during her entire sixteen (16) years of providing legal services to indigent defendants in the Municipal Court. FISCAL IMP ACT: REVIEWED BY: a-... F" unce Department Cost of Services: $ /completed case x 550 cases per fiscal year= $ plus $ each additional completed case over 550. Initial Project Costs: $101, for FY Future Ongoing Costs: This is a one (1) year extension. Physical Impact (on people/space): Limited use of attorney conference office to meet with defendants in Justice Complex. Residual or Support/Overhead/Fringe Costs: Standard City administration costs. ATTACHMENTS: Amendment providing a one ( 1) year extension to the original Three (3) Year Agreement for Professional Legal Services to defend Indigent Defendants for 550 completed cases at $ /completed case for $101, in FY by Delores Petica-McKee. LEGAL REVIEW: ~BHC-16 (10/2001) Revised (06/13/06) i:\forms\council comm form.doc

2 CITY OF BULLHEAD CITY ~* COUNCIL COMMUNICATION MEETING DATE: MAY 5, 2015 SUBJECT: DEPT OF ORIGIN: DATE SUBMITTED: MAY 5, 2015 SUBMITTED BY: APPROVAL OF A ONE (1) YEAR EXTENSION OF THE ORIGINAL THREE (3) YEAR AGREEMENT FOR PROFESSIONAL SERVICES FOR INDIGENT LEGAL SERVICES (PRIMARY PUBLIC DEFENDER) WITH ATTORNEY DELORES PETICA-MCKEE FOR FY CITY MANAGER TOBY COTTER, CITY MANAGER RECOMMENDATION: Motion to approve a one ( 1) year extension by amendment to the original Three (3) Year Professional Services Agreement for Indigent Legal Defense for 550 completed cases during Fiscal Year by Delores Petica-McKee for $101, and authorizing the City Manager or his designee to execute the Amendment. APPROVED FOR SUBMITTAL BY: CITY CLERK'S USE ONLY COUNCIL ACTION TAKEN Resolution No. Ordinance No. Approved Other Continued To: Referred To: Denied File (10/2001) Revised (06/13/06) j:\forms\council comm form.doc

3 AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT FOR INDIGENT LEGAL DEFENSE (PRIMARY PUBLIC DEFENDER) This Amendment to Professional Services Agreement for Indigent Legal Defense (Primary Public Defender) ("Amendment") is entered into and effective between the City of Bullhead City, an Arizona municipal corporation ("City"), and Delores Petica-McKee, attorney at law and a sole proprietorship under the laws of the State of Arizona ("") as of the 1 ' 1 day of July RECITALS A. City requires the provision of legal defense counsel for indigent individuals accused in the Bullhead City Municipal Court; and B. has provided services to the City and to individuals appointed as clients for a number of years, and most recently, under a three year contract scheduled to expire June 30, 2015 ("Agreement"); and C. City desires to proceed to a formal solicitation for the provision of legal defense services in the near future but in the meantime desires to maintain the continuity of ongoing services. AMENDMENT In consideration of the Recitals, which are confirmed as true and correct and incorporated by this reference, the mutual promises and covenants contained in this Amendment, and other good and valuable consideration, City and agree as follows: 1. Amendment. a. The Agreement term shall be extended for one year from July 1, 2015 through June 30, b. Paragraphs 1(a) and (e) and 2(a), (b) and (f) and any other applicable provisions of the Agreement, are amended to guarantee assignment of cases sufficient to reach 550 completed cases for the fiscal year. The per-case compensation shall be continued at an increase of 1.7% from the rate established for fiscal year 2014/2015. c. The obligation found under Paragraph 16 of the Agreement is deleted. 2. Affirmation. All other terms of the Agreement, which are fully incorporated herein by this reference (Exhibit A), remain as originally set out and will be implemented and adjusted for the changes listed above. No other substantive changes are allowed except as stated within this Amendment. The parties enter into this Amendment effective as of the date shown above. CITY ATTORNEY Toby Cotter, City Manager Date Delores Petica-McKee Date ATTEST: APPROVED AS TO FORM: Susan Stein, City Clerk (SEAL) Gamet K. Emery, City

4 (Page 1 of 14) PROFESSIONAL SERVICES AGREEMENT FOR INDIGENT LEGAL DEFENSE (PRIMARY PUBLIC DEFENDER) 3 Years- July 1, 2012, through June 30, THIS AGREEMENT is effective the 1st day of July, 2012, and for 36 months thereafter, through June 30, 2015, by and between the CITY OF BULLHEAD CITY, an Arizona municipal corporation, hereinafter referred to as ("City"), and Delores Petica- McKee, Esquire, Sole Practitioner, as an independent contractor, and referred to herein as "". This Agreement consists of three (3) 12-month cycles corresponding to the City's fiscal year, July 1 through June 30, for administrative purposes. See potential early termination provisions in Paragraph 10. RECITALS WHEREAS, the City desires to retain the services of a qualified, licensed Arizona attorney/firm, to defend indigent individuals who are defendanfs in criminal misdemeanor proceedings, which may also include pendent civil charges related to their criminal defense, in the Bullhead City Municipal Court and appeals to Superior Court therefrom. WHEREAS, the is willing to be retained by the City as an independent contractor, under the terms and conditions hereof to perform such services; WHEREAS, the has had previous professional services contracts and renewals of said contracts for thirteen (13) years with Bullhead City and performed satisfactorily. The City is familiar with her Qualifications, GRM- Attomey

5 (Page 2 of 14) WHEREAS, the has maintained her per case price for the last four (4) years during the recent economic recession without any cost of living (COLA) adjusbnents, NOW, THEREFORE, in consideration of the mutual covenants herein contained the parties hereto agree as follows: 1. Scope of Work- Duties of (a) shall serve as defense counsel for indigent criminal defendants assigned by the Bullhead City Municipal Court Magistrate. This Agreement anticipates six hundred (600) completed cases per fiscal year (July 1 through June 30) during the 36 months of this Agreement. The Bullhead City Municipal Court, when assigning cases, shall set two business days per week (at the Court's discretion, with consultation) as the regular pretrial/change of plea/status hearing day for the contracting to perform work at the Bullhead City Justice Complex, with any trial/hearing/court proceedings dates also being set on that day, but also possibly on another business day each week, when needed, to accommodate the Court's calendar. The shall perform all duties and services which are ethically, legally and reasonably necessary, in the exercise of attorney's independent professional judgment, to represent and defend indigent persons appointed counsel by a City Magistrate in misdemeanor and pendent (civil) related prosecutions pending in the Bullhead City Municipal Court and appeals to the Superior Court thereof. {b) 's duties under this agreement shall include appearances for pretrial conferences, status hearings, probation revocation hearings, other hearings, trials and change of plea proceedings. shall also prepare and file motions in criminal cases in the 's discretion, investigate potential defenses, and prepare cases for pretrial conferences, status hearings, other hearings, trials, probation 2 Qfl'-\

6 (Page 3 of 14) revocation hearings, post-conviction relief actions and all other matters related to the defense of indigent clients. Be responsible for any appeals (to Superior Court) commenced from a judgment of conviction and/or sentence imposed by a Bullhead City Municipal Court Magistrate for a case that was assigned at the pre-conviction phase. Any defendant assigned for appeal that was not assigned at the pre-conviction phase will be counted as a new case. Any case the has completed and withdrawn from, with approval of Court, and is later reappointed, will count as a new case upon completion. (c) At all times services under this contract that are performed by, require the to provide a defense for the individual defendant(s) assigned; consistent with the standard of professional representation of criminal defendants by attorneys in Arizona and which otherwise complies with the obligations of to effectively assist clients under Strickland v. Washington, 466 U.S. 668, 104 S.Ct (1984); State v. Santana, 153 Ariz. 147, 735 P.2d 757 (1987), Lafler v. Cooper, No (3/21/12), Missouri v. Frve, (3/21/12) No , the Arizona Rules of Criminal Procedure, ethical rules, statutes and case law. (d) The must prioritize scheduling to avoid conflicts with day(s) to be in Municipal Court. The City and understand and agree that, based upon the schedule of the Court, vacation periods and holidays,. it may be necessary to make up days missed and/or perform services on alternate days occasionally, and work with the Municipal Court's schedule. The may propose makeup days. Any temporary adjustment to work days must be approved by the Magistrate with sufficient notice, in writing, and including to the Chief Prosecutor to allow for scheduling. Occasional leave/vacation periods may be requested of the Court during the period of this contract (but for no longer than two (2) weeks within a four (4) 3 Dfl1.

7 (Page 4 of 14) month period), with sixty (60) days advance notice of the request to the Court and notice only to the Chief Prosecutor, for scheduling and to accommodate the Court's schedule. The Magistrate, in his/her discretion, may also grant reasonable requests, taking into consideration the Court's calendar and the necessities of the justice system. (e) This Agreement with compensation is based upon the expectation, that the will handle and complete six hundred (600) indigent defendant cases per 12 month fiscal year cycle of the Agreement, which can and usually includes multiple criminal charges mixed with pendent civil charges, and/or multiple docket numbers per case. (f) The shall submit a monthly written report of the number of defendant cases assigned and completed during the previous month by the 10 1 h of the successive month to the City Magistrate, Finance Director and Chief Prosecutor for administrative purposes. The may report electronically, to the satisfaction of the City Magistrate/Finance Director. The report shall indicate whether a case was domestic violence (DV), DUI or other misdemeanor and name the defendant. The report shall also have defendant case totals for the month and year-to-date totals with the first initial and last name of the defendant's case. (Note: A case can include numerous criminal charges and pendent civil charges with several docket numbers.) A completed case means a plea agreement was reached and approved by the Court, or the case was tried and is final without appeals, and/or completely dismissed. The flat fee per month is not affected by the actual number of cases assigned or completed per month. Withdrawal or substitution from a case that is not completed does not count as a completed case for compensation purposes. A case that goes to warrant is not a completed case. A case that another attorney substitutes in on before a plea agreement is completed or trial takes place is not a completed case. 4 ~PM

8 (Page 5 of 14) (g) may retain an associate qualified Arizona licensed attorney for assistance if is unable to perform during periods of the thirty-six (36) month contract period, but is responsible for compensating and supervising that person(s) in full as required by all laws. All taxes, withholding, employee costs, etc. are the responsibility of, McKee. Any of the 's employees must be covered by )\rizona Worker Compensation coverage. 2. Compensation Payable to (a) The fee for services shall be One Hundred Seventy-two Dollars and.056 Cents ($ ) per completed case, multiplied by six hundred (600) completed cases per the three (3) twelve (12) month fiscal year cycles during the thirty-six (36) months of the contract term (July 1, June 30, 2015) ($103, for 600 cases/per fiscal year), payable in 36 equal monthly installments of Eight Thousand Six Hundred Two Dollars and Eighty Cents ($8,602.80); on or before the first Friday of each month beginning July 1, The Agreement is administered in three (3) twelve (12) month fiscal year cycles. [fatal cost for services: $ x 1,800 completed cases = Three Hundred Nine Thousand Seven Hundred Dollars and Eighty Cents ($309,700.80), (plus COLA in 2"d & 3rd year of Contract if otherwise authorized for City employees) for three (3) year Agreement.] (b) During June, 2013, June, 2014, and June, 2015, there will be an annual reconciliation by a city official and the Finance Department has final audit authority to determine the number of cases completed and the monies paid during the contract term. The payment for the June, 2013, June, 2014, and June, 2015, months of the contract may be withheld for up to twenty-one (21) days to determine the actual number of cases for which compensation is justified. If, fails to complete Six Hundred (600) cases per twelve (12) month fiscal year cycle because of her inability to 5 9r'~

9 (Page 6 of 14} perform the contact, then One Hundred Seventy-two Dollars and.056 Cents ($ ) for each uncompleted case below Six Hundred (600) cases will be deducted from the June reconciliation payment for each fiscal year cycle. If, fails to complete Six Hundred (600) cases through no fault of her own {i.e., lack of appointments by Court) and she was able to perform throughout the year, then she will not owe any monies for less than Six Hundred (600) completed cases. NOTE: Any case completed after the term of this contract is paid for at the completed case rate in effect on the last day the rendered services under this Agreement unless the Municipal Court Judge should order more on an ad hoc basis. (c) will be reimbursed for the actual expenses of for travel to Kingman, Arizona, or any other Mohave County Court, in the performance of City Public Defender duties, but no more than Five Hundred Dollars ($500.00) per twelve (12) month fiscal year cycle of the contract term. (d), as an independent contractor, shall be solely responsible for payment of any federal and/or state taxes incurred by as a result of the payments made to under the terms of this Agreement by City. is responsible for all tax withholding; unemployment insurance, FICA and other employee costs for his/her employees. (e) The annual fee may increase during the second fiscal year cycle and third fiscal year cycle of this Agreement based upon the Federal Consumer Price Index, and may be the percentage increase that city employees receive in the next fiscal year, if any, as an increase under the Federal Social Security program with written approval by the City Manager. 6 Eft~

10 (Page 7 of 14) (f) must notify City thirty (30) days in advance of completing, or nearing completion of, six hundred (600) cases during each twelve (12) month fiscal year cycle. (g) shall be entitled to use an attorney conference room in the pretrial area to conduct pretrials for assigned cases at no cost on day(s) scheduled to meet with defendants. 3. Assignment of Cases to All cases assigned to for defense under the terms of this agreement shall be assigned by the City Magistrate or Magistrate Pro Tern. No more than sixty-five (65) percent of cases assigned shall be DUI or Domestic Violence cases. The remaining shall be other misdemeanors, and all could be mixed with pendent civil charges in many instances. 4. Billing Procedure (a) agrees to submit invoices, receipts, bills and such other documents which are deemed necessary by the City's Finance Director to substantiate the costs of travel claimed by. Generally, a request for payment of the monthly amount listed above will be paid automatically, or other method the Finance Director designates. (b) The Finance Director may request additional records supporting Attomey=s claims for reimbursement, if deemed necessary, at any time during the term of this agreement. 5. Insurance Coverage (a) Minimum Limits of Insurance. shall procure and maintain, for the entire period of this Agreement and for a minimum of one (1) year after completion of this Agreement, 7 QeM. Anomey

11 (Page 8 of 14} professional errors and omissions insurance with a minimum $1,000, aggregate for errors, omissions and/or legal malpractice which may arise from or in conjunction wi_th the performance of services by or 's agents, representatives, employees and/or associate attorneys, if any. Policies will be issued on an occurrence basis and City will be placed by endorsement on 's liability insurance policy as a certificate holder and additional insured to indemnify the City. The policy is to contain a provision that the insuranc~ company shall automatically notify City thirty (30) days before any changes occur in coverage through cancellation, lapse, reduction, elimination or other changes in the policy and the remains insured by the insurance company during this notice period at the limits set forth in this Agreement Any change to any insurance term, provision or coverage must also be noticed in writing to the City Manager by with thirty (30) days advance notice and cannot be for any less than the coverage required by the Agreement with all Agreement requirements met. (b) Acceptability of Insurance Companies. Insurance coverage is to be obtained from an insurance company licensed to conduct business in Arizona with an A.M. Best rating of no less than A. (c) Verification of Coverage. shall furnish the City Risk Manager with certificates of insurance and original endorsements relating to coverage required by this section within ten (10) days of the effective date of this Agreement. The certificates and endorsements for the policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on fonns provided by 's insurer. All certificates, letters, and endorsements must be received and approved by City within ten (1 0) days from the date of execution of this 8 );jfm.

12 (Page 9 of 14) Agreement by both parties, and coverage maintained for the entire duration of this Agreement and for a minimum of one (1} year thereafter. City reserves the right to require complete, certified copies of all required insurance policies at any time. (d) Worker's Compensation Insurance., as an independent contractor, may sign a waiver of Worker's Compensation coverage for himself/herself, but any and all of his/her employees doing any work covered by this Agreement must be covered by the minimum coverages established for Worker's Compensation Insurance in the State of Arizona. 6. Indemnification (a) Indemnification of City. shall indemnify, defend and hold harmless the City, its officers, employees, elected officials and agents from and against any and all lawsuits, liabilities, fines penalties, claims, damages, or judgments, including attorney's fees and court costs, arising out of or resuhing in any way from 's negligent performance of services under this agreement. The amount and type of insurance coverage provided by for professional errors, omissions and negligence under the terms of this Agreement shall not be construed as limiting the indemnification contained in this section. It is the intent of the parties to this Agreement that the City shall, in all instances, be indemnified against all liability losses, damages of any nature for or on account of the quality of or lack of performances under this Agreement, and any injuries to persons or damages to or destruction of property belonging to any person arising out of, or any way connected, with the performance of this Agreement by the. The provisions of this Paragraph shall survive the termination of this Agreement. 9 CiJPii.

13 (Page 10 of 14) (b) Indemnification of. The City shall indemnify, defend and hold the harmless from and against any and all liabilities, losses, damages, claims, actions, causes of action, costs and expenses (including reasonable attorney's fees and court costs) resulting from the negligent or willful acts of the City, its officers, employees, elected officials or agents. 7. Business License/Membership in State Bar shall obtain and maintain in effect, during the term of this Agreement, a valid business license issued by the City of Bullhead City. shall maintain membership in the Arizona State Bar, in good standing, at all times this Agreement is in effect and the same for any of 's associates/agents/employees with an Arizona State Bar license. 8. Independent Contractor and/or Firm is an independent contractor, and not an officer, agent, servant or employee of the City. is solely responsible for the acts, errors or omissions of, 's employees, officers, agents, contractors and subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between City and. 9. Default by (a) The failure of to perform the obligations hereunder and/or comply with the terms, provisions or conditions hereof (or any of them} shall constitute, after thirty (30) days written notice thereof, a default by the, and the City shall be entitled to one or more the following remedies: {i) Engage others (attorney/firm) to complete the performance of this Agreement. 10 ct)'p~ Anomey

14 (Page 11 of 14) (ii) Seek an award of the reasonable value of all or a portion of the costs to complete the performance of this Agreement, in the event that others are employed to complete the performance of the services contemplated by this Agreement. (iii) Seek an award of damages arising out of such default including all costs, expenses and attorney's fees of any nature directly or indirectly related to such default. (iv) Withhold payment of any monies due until the default has been cured. (b) The enumeration of the remedies listed above does not preclude City from utilizing any other remedies provided by Arizona law. Nothing herein shall preclude non-binding arbitration if both parties elect in the event of a dispute hereunder. 10. Termination The City and shall each have the right to terminate without cause this Agreement upon sixty (60) days written notice to the other party. Notice from to City shall be mailed to the Bullhead City Clerk at 2355 Trane Road, Bullhead City, Arizona Notice from the City to shall be mailed to, Delores Petica-McKee, Esquire, P.O. Box 20369, Bullhead City, AZ will remain responsible for the cases already assigned, even if work goes into future years, at the per case price last received under this Agreement, and a reconciliation of monies for actual services performed, will be made by the Finance Director with repaying the City if an insufficient number of cases were completed for monies paid, or the City paying the in accordance with the completed case flat fee for additional cases completed during the period. 11 ~erj.

15 (Page 12 of 14) 11. Non-Assignability of Contract This Agreement is not assignable to any other attorney or firm, person or entity unless there is prior written approval by the City Manager. The City Manager may deny assignment for any reason or no stated reason at his sole discretion. 12. Notices All notices required or permitted to be given under this Agreement shall be in writing and either be personally delivered or sent by telecopier (fax) or United States Certified Mail, postage prepaid, return receipt requested, and addressed as follows: To City: Copy to: To : City of Bullhead City City Clerk/S. Stein 2355 Trane Road Bullhead City, Arizona Fax No.: City of Bullhead City City Managerff. Cotter 2355 Trane Road Bullhead City, Arizona Fax No Delores Petica-McKee, Esquire At Law P.O. Box Bullhead City, AZ Telephone: Fax: or to such other addresses as the other party may, from time to time, designate by notice to the other, given in accordance with this section. Notice shall be deemed effective on the date personally served, or, if mailed, five {5} business days from the date such notice is received in the United States Mail, or within three (3} business days from the date faxed. 13. 's Fees & Costs Should it become necessary for either the City or to employ an attorney to enforce their rights under this Agreement, the prevailing party in any such Q.(l~ 12

16 (Page 13 of 14) action shall be entitled to recover their reasonable attorney's fees, all costs and damages incurred from the other party, including attorney's fees and the costs for collecting on any judgment from the non-prevailing party. 14. Choice of Law This Agreement shall be construed in accordance with and governed by the laws of the State of Arizona. 15. Immigration Laws warrants; to the extent applicable under A.R.S , that has registered with and will continue to participate in the E-Verify program established by the United States Department of Homeland Security and Social Security Administration or any successor program; warrants compliance with all federal immigration laws and understands that any breach of this warranty subjects to penalties, including termination of this Agreement; and finally, understands that City has the right to inspect the employment records of or any of its employees participating in this Agreement to ensure compliance with this provision. 16. Foreign Prohibitions certifies under A.R.S et seq., and et seq., that does not have, and during the term of this Agreement will not have, "scrutinized" business operations, as defined in the preceding statutory sections, in the countries of Sudan or Iran. 17. Conflicts This Agreement is subject to cancellation for conflicts of interest under the provisions of A.R.S )dfm Attome;'

17 (Page 14 of 14} 18. Entire Agreement (a) The parties acknowledge that this agreement represents the final and entire agreement and understanding between the parties and that any representations, negotiations, offers, proposals, promises or prior agreements are intended by the parties to be integrated and merged herein and to be superseded by this agreement. (b) This agreement may only be modified or amended in writing and signed by the and City Manager. nl ~ DATED this fi~ day of..; /4~, 2012, in the City of Bullhead City, Arizona. ATTORNEY Q,Q,... ~ -tnci;. A< Delores Petica- ckee Sole Practitioner Date ' ~.21 ;z,o 1 A- Date~ ) Jiz:!:M&~ 6 -~/-)~ Date Date. ATTEST: ~4/V&Q~. Sue Stein, City Clerk - (SEAL) APPROVED AS TO FORM: 14 QfM