062-08 - Resolution - Contract with Buskirk Law Firm for Public Defender ServicesRESOLUTION NO. 062-08
A RESOLUTION OF THE CITY OF PORT ORCHARD,
WASHINGTON, AUTHORIZING THE MAYOR TO SIGN
CONTRACT FOR PUBLIC DEFENDER SERVICES.
WHEREAS, the City has a duty to provide public defender services to defendants
appearing in the Port Orchard Municipal Court; and
WHEREAS, the costs for public defender services are born by the City; and
WHEREAS, the City Council finds that it is in the City's interest to enter into a 24-month
contract with the Buskirk Law Firm for public defender services;
now, therefore;
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, HEREBY
RESOLVES AS FOLLOWS:
THAT: The City Council hereby approves the Professional
Services Agreement in substantially the form attached hereto as
Exhibit A and by this reference incorporated herein.
THAT: The Mayor is authorized to execute, on behalf of the City,
the Public Defender Services Contract No. 002-09, in substantially
the form attached hereto, with Todd Buskirk, Buskirk Law Firm for
a contract period of February 1, 2009 through February 29, 2011.
PASSED by the City Council of the City of Port Orchard, SIGNED by the Mayor and attested
by the Clerk in authentication of such passage this 30th day of December 2008.
CITY OF PORT ORCHARD PROFESSIONAL SERVICES AGREEMENT
C006-09
THIS Agreement is made effective as of the 30 day of ~(];ijll'lhi!Tl]008, by and
between
CITY OF PORT ORCHARD, WASHINGTON ("CITY")
216 Prospect Street
Port Orchard, Washington 98366
Contact: Mayor Lary Coppola Phone: 360.876,4407 Fax: 360.895.9029
and
Buskirk Law PLLC ("PUBLIC DEFENDER")
34 73 NW Lowell St., Ste. 200
Silverdale, WA 98383
Contact: Todd A. Buskirk
692-1194
Tax Id No.: 20 5413997
Phone: (360) 692-3838
for professional services in connection with the following Project:
Fax: (360)
Provision of professional legal services to serve as designated Public Defender for the
City of Port Orchard, serving the Port Orchard Mnnicipal Conrt.
TERMS AND CONDITIONS
I. Services by Public Defender
A. Public Defender shall perform the services described in the Scope of Work attached
to this Agreement as Exhibit "A." The services performed by the Public Defender
shall not exceed the Scope of Work without prior written authorization from the City.
B. The City may from time to time require changes or modifications in the~ Scope of
Work. Such changes, including any decrease or increase in the amount of
compensation, shall be agreed to by the parties and incorporated in written
amendments to the Agreement.
C. Public Defender shall, at such times and in such form as the City may require, furnish
to City such reasonable periodic reports and documents as City may request related to
any matter covered by the Agreement between the City and Attorney.
D Within thirty (30) days of receiving notice of award and on an annual basis thereafter,
Public Defender shall submit an af±idavit to the City Clerk attesting that the Public
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Defender and any other attorneys who perform services for the City meet the
minimum qualifications as stated in Exhibit A.
2. Schedule of Work/Term
A. Public Defender services shall commence on Febmary I, 2009.
B. The tenn of this Agreement shall be for 2 years. The Agreement may be
automatically renewed for two-years without action being taken by either party.
3. Compensation
Compensation for these services shall be at a flat rate of $6,400.00 per month and shall
not exceed this sum without written authorization as further detailed in the attached Exhibit "B."
4. Payment
A. Public Defender shall maintain time and expense records and provide them to the
City monthly, along with monthly invoices in a format acceptable to the City for
work perfom1ed to the date of the invoice.
B. All invoices shall be paid by City warrant within thirty (30) days of receipt of a
proper invoice.
C. Public Defender shall keep cost records and accounts pertaining to this Agreement
available for inspection by City representatives for three (3) years after final payment
unless a longer period is required by a third-party agreement. Copies shall be made
available on request.
D. If the services rendered do not meet the requirements of the Agreement, Public
Defender will correct or modify the work to comply with tbe Agreement. City may
withhold payment for such work until the work meets the requirements of the
Agreement.
5. Discrimination and Compliance with Laws
A. Public Defender agrees not to discriminate against any employee or applicant for
employment or any other person in the pcrformauce of this Agreement because of
race, creed, color, national origin, marital status, sex, age, disability, or other
circumstauce prohibited by federal, state, or local law or ordinance, except for a bona
fide occupational qualification.
B. Public Defender shall comply with all federal, state, and local laws and ordinances
applicable to the work to be done under this Agreement.
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C. Public Defender shall obtain a City of Port Orchard business license prior to
commencing services under this agreement, or within 30 days of notice of award,
whichever occurs first.
D. Under no circumstances will Public Defender transport by vehicle, or any other mode
of transportation, any persous they represent as Public Defender under the terms of
this agreement. Should Public Defender transport any person in violation of this
provision, Public Defender assumes all risk and liability and shall defend, indemnify
and hold the City, its officers, officials, employees and volunteers harmless from any
and all claims, injuries, damages, losses or suits including attorney fees and costs,
arising out of or resulting from the transport of said persons. This section shall
survive the expiration of this Agreement.
E. Violation of this Paragraph 5 shall be a material breach of this Agreement and
grounds for cancellation, termination, or suspension of the Agreement by City, in
whole or in part, and may result in ineligibility for further work for City.
6. Suspension and Termination of Agreement
A. This Agreement may be terminated by the City at any time upon the default of the
Public Defender or upon public convenience, in which event all finished or
unfinished documents, reports, or other material or work of Public Defender pursuant
to this Agreement shall be submitted to City, and Public Defender shall be entitled to
just and equitable compensation for any satisfactory work completed prior to the date
of terminaticm, not to exceed the total compensation set forth herein. Public Defender
shall not be entitled to any reallocation of cost, profit or overhead. Public Defender
shall not in any event be entitled to anticipated profit on work not performed because
of such tem1ination. Public Defender shall use its best efforts to minimize the
compensation payable under this Agreement in the event of such termination. If the
Agreement is terminated for default, the Public Defender shall not be entitled to
receive any further payments under the Agreement until all work called for has been
fully performed. Any extra cost or damage to the City resulting from such dcfault(s)
shall be deducted from any money due or coming due to the Public Defender. The
Public Defender shall bear any extra expenses incurred by the City in completing the
work, including all increased costs for completing the work, and all damage
sustained, or which may be sustained by the City by reason of such default.
B. The City may suspend this Agreement, at its sole discretion, upon one week's advance
notice to Public Defender. Such notice shall indicate the anticipated period of
suspension. Any reimbursement for expenses incurred due to the suspension shall be
limited to the Public Defender's reasonable expenses, and shall be subject to
verification. The Public Defender shall resume performance of services under this
Agreement without delay when the suspension period ends.
C. Either party may terminate this Agreement with or without cause by providing one-
hundred twenty (120) days written notice to the other party.
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D. Prior to commencement of the services contemplated by the Agreement, Public
Defender will hire an additional attorney with three (3) years of criminal law
experience and experience in municipal courts. If that person ceases to be the
primary attorney that performs services tmdcr this agreement, or is no longer
employed by the law firm of Buskirk Law PLLC or its successors, then the
Agreement shall terminate automatically within thirty (30) days of either said event
unless the parties, prior to that time, agree to modify the contract terms to take into
account the changed circumstances.
E. If within 60 days of commencing the services contemplated in this agreement, the
City is not satisfied with the work performance of the person assigned by the Public
Defender to perfonn services under this agreement the City may terminate this
agreement by thirty (30) days written notice to the other party.
7. Standard of Care
Public Defender represents and warrants that it has the reqmsrte trammg, skill and
experience necessary to provide the services under this agreement and is appropriately
accredited and licensed by all applicable agencies and governmental entities. Services
provided by Public Defender under this agreement will be performed in a manner
consistent with that degree of care and skill ordinarily exercised by members of the same
profession currently practicing in similar circumstances.
8. Ownership of Work Product
All data matenals, reports, memoranda, and other documents developed under this
Agreement whether finished or not shall become the property of City, shall be forwarded
to City at its request and may be used by City as it sees fit. Upon termination of this
agreement pursuant to paragraph 6 above, all finished or unfinished documents, reports,
or other material or work of Public Defender pursuant to this Agreement shall be
submitted to City. City agrees that if it uses products prepared by Public Defender for
purposes other than those intended in this Agreement, it does so at its sole risk and it
agrees to hold Public Defender harmless therefore.
9. Indemnification/Hold Harmlessffhird ]>arty Rights
Public Defender shall defend, indemnify and hold the City, its officers, officials,
employees and volunteers harmless from any and all claims, injuries, damages, losses or
suits including attorney fees, arising out of or resulting from the acts, errors or omissions
of the Public Defender, its agents, employees, or sub contractors in performance of this
Agreement, except for injuries and damages caused by the sole negligence of the City.
This indemnification and hold harmless shall apply regardless of whether the claim is
bronght pursuant to the Worker's Compensation Act, RCW Title 51, or otherwise, and
the Public Defender waives any immunity whatsoever with respect to such
indemnification.
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The terms of this Agreement are made and entered into for the sole protection and benefit
of the Parties hereto. Nothing contained in this Agreement shall be constmcd to create a
liability or a right of indemnification in any third party.
This section shall survive the expiration of this Agreement.
10. Insurance
The Public Defender 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 Public
Defender, its agents, representatives, or employees.
A. Minimum Scope of Insurance
Public Defender shall obtain insurance of the types described below:
1. Automobile Liability insurance covering all owned, non-owned, hired and
leased vehicles. Coverage shall be written on Insurance Services Office (ISO)
form CA 00 0 I or a substitute form providing equivalent liability coverage. If
necessary, the policy shall be endorsed to provide contractual liability
coverage.
2. Commercial General Liability insurance shall be written on ISO occurrence
form CG 00 01 or a substitute form providing equivalent liability coverage
and shall cover liability arising from premises, operations, independent
contractors and personal injury and advertising injury. The City shall be
named as an insured under the Public Defender's Commercial General
Liabi!Jty insurance policy with respect to the work performed for the City.
3. Workers' Compensation coverage as required by the Industrial Insurance laws
of the State of Washington.
4. Professional Liability msurance appropriate to the Public Defender's
profession.
B. Minimum Amounts oflnsurance
Public Defender shall maintain the following insurance limits:
I. Commercial General Liability insurance shall be written with limits no less
than $1,000,000 each occurrence, $2,000,000 general aggregate.
2. Professional Liability insurance shall be written with limits no less than
$1,000,000 per claim and $1,000,000 policy aggregate limit.
C. Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following
provisions for Automobile Liability, Professional Liability and Commercial General
Liability insurance:
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l. The Public Defender's insurance coverage shall be primary insurance as
respect the City. Any insurance, self-insurance, or insurance pool coverage
maintained by the City shall be excess of the Public Defender's insurance and
shall not contribute with it.
2. The Public Defender's insurance shall be endorsed to state that coverage shall
not be cancelled by either party, except after thirty (30) days prior written
notice by certified mail, return receipt requested, has been given to the City.
D. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of not less than
A:VII.
E. Verification of Coverage
Public Defender shall fumish 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 Public Defender before
commencement of the work.
11. Assigning or Subcontracting
Public Defender ,,hall not assign, transfer, subcontract or encumber any rights, duties, or
interests accruing from this Agreement without the express prior written consent of the
City, which con&cnt may be withheld in the sole discretion of the City.
12. Independent Contractor
Public Defender is and shall be at all times during the term of this Agreement an
independent contractor.
13. Notice
Any notices required to. be given by the City to Public Defender or by Public Defender to
tl1e City shall be in writing and delivered to the parties at the following addresses:
Lary Coppola
Mayor
216 Prospect Street
Port Orchard, W A 98366
Phone: 360.876.4407
Fax: 360.895.9029
PSA-Public Defender Services
Buskirk Law PLLC
Attn: Todd A. Buskirk
3473 NW Lowell St, Ste. 200
Silverdale, W A 98383
Phone: 360.692.3838
Fax: 360.692.1194
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14. Disputes
Attempts to resolve disputes between the City and the Public Defender will first be
through mediation. Any action for claims arising out of or relating to this Agreement
shall be governed by the laws of the State of Washington. Venue shall be in Kitsap
County Superior Court.
15. Attorneys Fees
In any suit or action instituted to enforce any right granted in this Agreement, the
substantially prevailing party shall be entitled to recover its costs, disbursements, and
reasonable attorney's fees from the other party.
16. Extent of Agreement/Modification
This Agreement, together with attachments or addenda, represents the entire and
integrated Agreement between the parties hereto and supersedes all prior negotiations,
representations, or agreements, either written or oral. This Agreement may be amended,
modified or added to only by written instrument properly signed by both parties.
CITY OF PORT ORCHARD,
WASHINGTON
PUBLIC DEFENDER
By:--~-~,.<;;,-~ Byfjdl t} /lAL
IC'trl)t~:.oppll'!a f" .-"' Todd A. Buskirk
)'t/yor . ,// Mm"'t7 £
Date: fl_:::3:)-C)8 Date: __ L 1 0
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EXHIBIT-A
SCOPE OF WORK AND MINIMUM QUALIFICATIONS
Minimum Experience/Qualifications
1. Each attorney who is proposed to perfonn services pursuant to this RFP must be a
member in good standing with the Washington State Bar Association. No Rule 9
attorneys will be allowed to perform any services under this agreement.
2. The Public Defender appointed pursuant to this RFP must have a minimum of 3 years of
criminal law experience. The Public Defender may retain the assistance of other qualified
attorneys in his or her firm. At all times, the designated Public Defender will properly
supervise attorneys having less than 3 years of experience to ensure that defendants
charged in the Port Orchard Municipal Court receive competent legal representation.
3. The Public Defender and any attorneys working under the supervision of the Public
Defender shall:
A. Be familiar with the statutes, court rules, constitutional provisions, and case law
relevant to criminal law;
B. Be familiar with the collateral consequences of a conviction, including possible
immigration consequences and the possibility of civil commitment proceedings
based on a criminal conviction;
C. Be familiar with mental health issues and be able to identify the need to obtain
expert S\>;<vices; and
D. Complet,. a minimum of seven (7) hours of continuing legal education within
each calendar year in courses relating to their pnblic defense practice.
Scope of tkrvice
The attorney or finn awarded the contract shall be designated Public Defender for the City's
Municipal Court, and shall be duly appointed to represent all defendants who are appointed legal
counsel by the Port Orchard Municipal Court.
Representation as the City's Public Defender shall include but not be limited to:
I. Attending all scheduled court appearances. In the event of vacation or illness Public
Defender is responsible for ananging coverage by another qualified attorney.
2. Acting as stand-by counsel available to all dcfendm1ts at arraignments and in-custody
bail hearings;
3. Representation of appointed cases at pre-trial hearings, trials, sentencing, and post-
disposition proceedings; and
4. Representation of criminal defendants on appeals to Superior Court.
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5. The Public Def(mder shall consult with defendants prior to pretrial hearings.
Appointment as the City's Public Defender will require meetings with defendants at the
Public Defender's office or at the Kitsap County Jail. Failure to consult with
defendants prior to pretrial shall only be excused for good cause. Examples of "good
cause" include: scheduled vacation, illness, extended trials, or when the defendant fails
to cooperate with the Public Defender in scheduling a time to consult.
6. Pursuant to CrRLJ 3.1 ( c )(I }·(2), Public Defender services shall also include providing
legal representation to persons wishing to consult with an attorney while in the custody
of the Port Orchard Police Department. The City's Public Defender shall ensure that
an attorney is available at all times (24 hours a day) to provide legal representation,
including evenings, holidays, and weekends. The City's Public Defender shall provide
the Port Orchard Police Department with a monthly schedule of attorneys available to
receive calls during non-business hours. This schedule shall include the name of the
attorney and a designated telephone or cellular phone number. Only attomeys who
meet the experience requirements set forth above, and arc either a member of the
Public Defender's finn or have received prior written approval by the City may be
included in the above-described schedule.
7. When a defendant exercises his or her right to trial, the City's Public Defender shall
diligently prepare for trial and ensure that the defendant receives adequate
representation. Preparation for trial shall include but not be limited to: interviewing
witnesses identified by the City Prosecutor, interviewing witnesses identified by the
defendant, review of police reports and evidence, research legal issues, preparing a
witness list on behalf of the defendant, and consultation with the defendant.
8. If a defendant represented by the City's Public Defender elects to appeal a conviction
to Superior Court, the Public Defender is responsible for timely filing a Notice of
Appeal to Superior Court.
9. Services do not extend to forfeiture hearings or hearings with the Department of
Licensing.
10. The City and/or Port Orchard Municipal Court will provide a space for the Public
Defender's assigned attorney to consult with clients
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Exhibit B-Compensation
1. Compensation shall be paid to Public Defender at a flat rate of $6,400.00 per month
for all services performed by Public Defender as set forth in Exhibit B.
2. The City will reimburse the Public Defender for the following costs when prior written
approval has been given by the Port Orchard Municipal Court Judge for the
expenditure of public funds: costs for hiring an investigator, filing fees for Appeals,
and costs for verbatim transcripts. All administrative costs, including but not limited
to: copies, travel time, mileage, facsimiles, legal research, equipment, etc. shall be
born by the Public Defender. Any costs not otherwise detailed in this agreement shall
be considered administrative costs unless the parties otherwise agree in writing.
3. In the event that the Port Orchard Municipal Court adds additional calendars (i.e.
pretrial hearings, in-custody anaignments, probation violations, video anaignments,
compliance hearings. status hearings) such that it results in an overall 25% increase
above the cunent average of 20 hours per week that the Public Defender spends in
court for aforementioned calendars or the assigned cases exceed 450 per year, then
either party can, in good faith, request that this contract be renegotiated.
4. Annual compr;nsation shall automatically be adjusted based upon the Consumer Price
!ndex-All Urban Consumers Seattle-Tacoma-Bremerton Area as published by the
United States Department of Labor's Bureau of Labor Statistics (or the successor to
such index ot· if no successor then in any generally accepted index showing the
inflation rate, if any, for the United States as a whole )(1982-84 equals 1 00) for the last
r:tonth that statistics are published pnor to the effective date ofthc contract. However
the annual adjustment shall not exceed 5% or be less than 2% unless otherwise
specifically negotiated between the parties.
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