AGREEMENT FOR LEGAL SERVICES Prosecution Services (Prosecuting Attorney for the City of Mountlake Terrace)

Transcription

1 AGREEMENT FOR LEGAL SERVICES Prosecution Services (Prosecuting Attorney for the City of Mountlake Terrace) THIS AGREEMENT, effective the 1 st day of January, 2015, by and between the CITY OF MOUNTLAKE TERRACE, a Municipal Corporation of the State of Washington (hereinafter referred to as City ), and the law office of SANDY A. SULLIVAN (hereinafter referred to as Prosecuting Attorney ), and collectively known as Parties. 1. PURPOSE / SERVICES OF THE PROSECUTING ATTORNEY. The purpose of this Agreement is to provide for professional legal services and, specifically, for prosecution services to the City of Mountlake Terrace, Washington. The Prosecuting Attorney shall serve at the pleasure of the City under the direction of and supervision by the City Manager. The designated attorney from the Prosecuting Attorney s office that shall be the primary prosecutor assigned to the City for prosecution services shall be Sandy A. Sullivan. Under the supervision of the Prosecuting Attorney, other attorneys may provide assistance to the Prosecuting Attorney as may be necessary from time to time. In the event of a conflict with the Prosecuting Attorney, of a case requiring a Conflict Prosecutor, it shall be the responsibility of the Prosecuting Attorney to provide such substitute coverage with a properly licensed State of Washington qualified prosecuting attorney. However, if such conflict is due to a conflict with the City, the expense of a Conflict Prosecutor shall be the responsibility of the City, with the City having approval of the Conflict Prosecutor. The City acknowledges that the Prosecuting Attorney has an independent law practice and that it may perform services for clients other than the City. The Prosecuting Attorney agrees not to perform services where the same would interfere with her obligations under this Agreement or constitute a conflict of interest or ethical violation as defined in the Rules of Professional Conduct for Prosecutors established by the Washington State Supreme Court. The Prosecuting Attorney, in the course of her prosecutorial duties, shall make decisions involving, but not limited to, the charging of crimes, plea agreements, compromises, sentencing recommendations, review and revocation of probation, independently of the City, the Mountlake Terrace Police Department and the Chief of Police. These decisions shall be made in accordance with accepted prosecutor ethics, cannons and current practices. 2. TERM OF AGREEMENT/TERMINATION NOTICE. A. This Agreement shall take effect on the 1 st day of January, The Agreement shall continue in effect until the 31 st day of December, Unless terminated earlier as provided herein, this Agreement may be renewed for successive two year periods by mutual written agreement. The Prosecuting Attorney shall submit a proposed Agreement commencing for the calendar-year 2016 through calendar-year 2018 on or before the 1 st day of September, 2015, or other such date as mutually agreed. In the event the Prosecuting Attorney does not submit a 1

2 proposed Agreement, this Agreement shall be renewed automatically for one (1) calendar-year subject to the same terms and conditions set forth herein, provided that there is no written opposition by either Party. B. Prior to the expiration of this Agreement or any extension thereof, the City shall retain the right to solicit other proposals for the Prosecuting Attorney. C. Termination of Agreement. Either Party may terminate this Agreement upon giving at least one hundred twenty (120) days' written notice. In the event that either Party terminates this Agreement, the Prosecuting Attorney shall be compensated for all hours worked on or before the date of termination. Pending case load shall be transferred to another prosecuting. 3. QUALITY OF SERVICES. Prosecuting Attorney shall perform legal services as set forth hereafter in a capable and efficient manner, and in accordance with the Rules of Professional Responsibility for Attorneys and/or the professional and ethical standards of the Washington State Bar Association and Washington State Supreme Court. In the event the Prosecuting Attorney is a subject of any disciplinary proceeding by the Washington State Bar Association, Prosecuting Attorney shall notify the City in writing of the pendency of the said disciplinary proceeding. The City may, in its discretion, make its own inquiry concerning the said disciplinary proceeding and may, in its judgment, terminate this Agreement on thirty (30) days notice. 4. SERVICES PROVIDED. A. The Prosecuting Attorney shall represent the City as prosecuting attorney in the prosecution of criminal and criminal traffic matters (gross misdemeanors and misdemeanors) and attorney-represented contested infractions. The Prosecuting Attorney is responsible for all aspects, including but not limited to case management, sentencing and appeal, in the prosecution of misdemeanor and gross misdemeanor criminal violations. The duties of the Prosecuting Attorney shall include the review and signing of citations and complaints as required; review of police incident reports for charging determinations. The Prosecuting Attorney shall communicate with the City s Police Department to make filing decisions on criminal cases and to advise on the conduct of investigations, seizures, trial preparation and related matters; as the Prosecuting Attorney deems necessary, or upon request by the City, provide regular update training to police personnel on matters pertaining to changes in criminal law and the conduct of business in South District Court at a time mutually agreed upon by the Parties; meet with the Police Department and its Officers, pro se defendants and opposing counsels; interview witnesses and victims of crimes; review criminal misdemeanor and gross misdemeanor cases; municipal code violations; represent the City at arraignment, in-custody hearings, motion calendars, pretrial hearings, bench and jury trials, 2

3 5. FEES AND COSTS. probation violation hearings, and appeals; makes appropriate sentencing decisions and recommendations to the Court; prepares and presents legal memorandums and other documents for court cases as applicable; processes discovery and related requests, including contested traffic infractions; prepare subpoenas; jury instructions and other related documents; represent and advise the City with Victim Advocacy interests; provide appropriate administrative support for the prosecution of city cases; and shall perform all services and duties, incidental or necessary therefore. South District Court may hold sessions at various times throughout the week to accommodate legal requirements and customer needs. The Prosecuting Attorney shall be reasonably available for night and weekend (24/7) contact by police personnel and shall be available to meet with Mountlake Terrace Police Department officers at reasonable times. A. Retainer. The City agrees to pay to the Prosecuting Attorney a monthly retainer in the sum of $8, per month for all services referenced in Section 4(A) above and as referenced in Exhibit A, Services to be provided Under Retainer, attached hereto and incorporated by reference. B. Additional Compensation. If City requires the services of the Prosecuting Attorney other than those purposes set forth in 4(A) above, and Exhibit A, Services to be provided Under Retainer, attached hereto and incorporated by reference, the Prosecuting Attorney shall bill the City at a rate of $ per hour. C. Payment Rate Adjustment. The payment rate shall be increased each January 1 st by one percent (1%). This shall take into account the cost of doing business, as well as the cost of nominal filing increases. Should the criminal filings increase significantly in any calendar year, the Parties may renegotiate, in good faith, the payment terms of this fee Agreement. D. Expenses and Costs. The City shall reimburse the Prosecuting Attorney for any reasonable out-of-pocket expenses and costs that may be required in the performance of its duties as Prosecuting Attorney on behalf of the City; provided, however, paralegal fees, travel fees and delivery fees will not be allowed. The reasonable expense of witnesses, expert witnesses, transcripts, certified copies of documents, interpreter fees and other necessary and required legal process that may be needed from time to time, shall be the sole responsibility of the City. E. Payment Terms. Fees and costs will be paid by the City within forty-five (45) days from the invoice date on the billing by the Prosecuting Attorney. 6. INSURANCE AND INDEMNIFICATION / HOLD HARMLESS. 3

4 A. Liability Insurance. During the life of this Agreement, the Prosecuting Attorney shall maintain professional liability and malpractice insurance, which shall provide coverage for anyone acting for or on behalf of the Prosecuting Attorney in the performance of this Agreement. Such insurance shall be obtained from any insurance company authorized to do business as such in the State of Washington and shall have policy limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence and ONE MILLION DOLLARS ($1,000,000.00) in the annual aggregate. B. Automobile Insurance. Business automobile liability insurance with combined single limits of liability not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence for bodily injury, personal injury or death, and THREE HUNDRED THOUSAND ($300,000) property damage, extending to any automobile that will be used in accomplishing this Agreement. C. Indemnification/Hold Harmless. To the extent provided by law and irrespective of any insurance required of the Prosecuting Attorney, the Prosecuting Attorney shall defend, hold harmless and indemnify the City from any and all Claims arising out of or in any way relating to this Agreement; provided, however, the requirements of this paragraph shall not apply to that portion of such Claim that reflects the percentage of negligence of the City compared to the total negligence of all persons, firms or corporations that resulted in the Claim. Prosecuting Attorney agrees that the provisions of this paragraph 6(C) apply to any claim of injury or damage to the persons or property of Prosecuting Attorney s employees. As to such claims and with respect to the City only, Prosecuting Attorney waives any right of immunity, which it may have under industrial insurance (Title 51 RCW and any amendment thereof or substitution therefore). THIS WAIVER IS SPECIFICALLY NEGOTIATED BY THE PARTIES AND IS SOLELY FOR THE BENEFIT OF THE CITY AND PROSECUTING ATTORNEY. As used in this paragraph: (1) City includes the City s officers, employees, agents, and representatives; (2) Prosecuting Attorney includes employees, agents, representatives sub-consultants; and (3) Claims include, but is not limited to, any and all losses, claims, causes of action, demands, expenses, attorney s fees and litigation expenses, suits, judgments, or damage arising from injury to persons or property. 7. INDEPENDENT CONTRACTOR / LOCATION AND SUPPLIES. A. The Prosecuting Attorney will act as an independent contractor in the performance of the duties under this Agreement. Accordingly, the Prosecuting Attorney shall be responsible for the payment of all benefits and taxes, including, but not limited to, unemployment, federal withholding for income tax, FICA, industrial insurance, business license fee, and any other fees, taxes, or other 4

5 obligations imposed by law as required. Further, the Prosecuting Attorney understands and agrees that, subject to the scope of work limitations set forth in this Agreement, the Prosecuting Attorney is solely responsible for the methods, control, and manner in which he accomplishes the requirements of this Agreement. B. Location and Supplies. The Prosecuting Attorney will provide her own office space, supplies, telephone, and other reasonable necessary support staff required to efficiently complete the work under this Agreement, except for Verizon Wireless Aircard 4G LTE Pantec as provided in Paragraph 7C below. C. WiFi Access: The City, during the duration of this Agreement, shall furnish the Prosecuting Attorney a Verizon Wireless Aircard 4G LTE Pantec to be utilized solely in connection with the Mountlake Terrace Prosecuting Attorney services. The Prosecuting Attorney shall abide by the Mountlake Terrace IT policies, which are attached hereto and incorporated by reference as though fully set forth. Provided however, in the event the Prosecuting Attorney, in performance of her prosecutorial duties, is required to access City prohibited or restricted websites, she shall prior to access notify the City s IT department. i. Lost, Stolen or Damaged: The Prosecuting Attorney shall as soon as practical, report any lost, damaged, destruction or theft of the Verizon Wireless Aircard 4G LTE Pantec to City s IT department. Unless otherwise covered by insurance, the Prosecuting Attorney shall be liable for lost, damaged, destruction or theft to the Verizon Wireless Aircard 4G LTE Pantec furnished under this Agreement. ii. Surrender of Verizon Wireless Aircard 4G LTE Pantec: The Prosecuting Attorney shall surrender the Verizon Wireless Aircard 4G LTE Pantec in good and proper working order upon termination or expiration of this Agreement. 8. ATTORNEYS FEES/VENUE. In the event a Party breaches this Agreement, the prevailing Party shall be entitled to recover reasonable attorney s fees and costs associated with enforcing their rights herein. The parties acknowledge that venue shall be in the Snohomish County Superior Court. 9. SUCESSORS AND ASSIGNS. The Prosecuting Attorney shall not assign, transfer or encumber any rights, duties, or interests accruing from this Agreement without the written consent of the City. 10. NON-DISCRIMINATION. In hiring or employment made possible or resulting from this Agreement, there shall be no unlawful discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status or the presence of any sensory, mental, or 5

6 physical handicap, unless based upon a bona fide occupational qualification. This requirement shall apply to but not be limited to the following: employment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. No person shall be denied or subjected to discrimination in receipt or the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status, or in the presence of any sensory, mental or physical handicap. 11. NOTICES. Notices to the City shall be sent to the following address: Arlene Fisher, City Manager City of Mountlake Terrace th Street SW, Suite 200 Mountlake Terrace, WA Notices to the Prosecuting Attorney shall be sent to the following address: Sandy Sullivan, Prosecuting Attorney th Avenue, Suite 2800 Seattle, WA ENTIRE AGREEMENT. This Agreement contains the entire understanding of the parties. It may be changed only by an agreement in writing signed by the parties. 13. AUTHORITY TO BIND PARTIES AND ENTER INTO AGREEMENT. The undersigned represent that they have full authority to enter into this Agreement and to bind the parties for and on behalf of the legal entities set forth below. DATED this day of, CITY OF MOUNTLAKE TERRACE PROSECUTING ATTORNEY Arlene Fisher, City Manager Sandy A. Sullivan 6

7 Exhibit A Services to be Provided Under Retainer The Prosecuting Attorney shall represent the City as prosecuting attorney in the prosecution of criminal and criminal traffic matters (gross misdemeanors and misdemeanors) and attorneyrepresented contested infractions. The Prosecuting Attorney is responsible for all aspects, including but not limited to case management, sentencing and RALJ appeal, in the prosecution of misdemeanor and gross misdemeanor criminal violations. The duties of the Prosecuting Attorney shall include the review and signing of citations and complaints as required; review of police incident reports for charging determinations. The Prosecuting Attorney shall communicate with the City s Police Department to make filing decisions on criminal cases and to advise on the conduct of investigations, seizures, trial preparation and related matters; as the Prosecuting Attorney deems necessary, or upon request by the City, provide regular update training to police personnel on matters pertaining to changes in criminal law and the conduct of business in South District Court at a time mutually agreed upon by the Parties; interview witnesses and victims of crimes; review criminal misdemeanor and gross misdemeanor cases; municipal code violations; represent the City at arraignment, incustody hearings, motion calendars, pretrial hearings, bench and jury trials, probation violation hearings and RALJ appeals; makes appropriate sentencing decisions and recommendations to the Court; prepares and presents legal memorandums and other documents for court cases as applicable; processes discovery and related requests, including contesting traffic infractions; prepare subpoenas; jury instructions and other related documents; represent and advise the City with Victim Advocacy interests; provide appropriate administrative support for the prosecution of city cases; and shall perform all services and duties, incidental or necessary therefore. South District Court may hold sessions at various times throughout the week to accommodate legal requirements and customer needs. The Prosecuting Attorney shall be reasonably available for night and weekend (24/7) contact by police personnel and shall be available to meet with Mountlake Terrace Police Department officers at reasonable times. 7