HomeMy WebLinkAbout4894 Contract Number: 4894
Vendor: ROVANG FONG & ASSOCIATES
Subject: Public Defense Services
Department: Muni Court
File Class: LEG 12 -1
Begin Date: 1/1/2010
End Date: 7/31/2011
Review Date: 10/1/2013
Vault Date:
Comments: Assignment & Novation effective 6 -1 -2010. Termination
Letter 8 -3 -2011
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carol etgen@ci bremerton wa us riM To 360 473 - 5323
Fax 360 - 473-6200
B/pNgr� 345 6th Street, Suite 600
Bremerton, WA 98337 -187:
August 2, 2011
Rovang and Associates
1730 Pottery Avenue, Suite 210
Port Orchard, WA 98366
Re: Termination of Public Defense Contract with City of Bremerton
Dear Mr. Rovang:
Thank you for the service your firm has provided to the citizens of the
City of Bremerton while fulfilling the public defense contract obligations.
Pursuant to your request for an early termination of the contract, the City
has contracted with Bremerton Defenders, LLPC as of August 1, 2011 to
take over the public defense contract.
It is my understanding that you are willing to waive Section IIC of your
contract for public defense services with the City of Bremerton, dated
January 1, 2010, which stipulates pro -rated payment after termination of
the contract. If you would sign below, acknowledging your agreement to
this waiver, I will close out the contract. I have provided two original
letters so that you may keep one for your files and return one to me after
signature.
Sincerely,
Carol L. Etgen, MM
City Clerk
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David Rovang Afe
Contract Number: 4894
Vendor: ROVANG FONG & ASSOCIATES
Subject: Public Defense Services
Department: Muni Court
File Class: LEG 12 -1
Begin Date: 1/1/2010
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End Date: 12/31/2013
Review Date: 10/1/2013
Vault Date:
Comments: Assignment & Novation effective 6 -1 -2010
ASSIGNMENT AND NOVATION
of the
City of Bremerton Public Defense Services
2010 Contract for Services
Recitals
WHEREAS a contract was made and entered into by and between the city of Bremerton (" the City "),
a Washington municipal Corporation, and Rovang Fong and Associates (" Public Defender ") for the
delivery of public defense services to the city of Bremerton Municipal Court for 2010(" the Contract ");
and
WHEREAS the partners of Rovang Fong and Associates, namely Eric Fong and David Rovang, have
decided and agreed to dissolve their partnership and practice law independently of each other, and to
divide assets and liabilities of Rovang Fong and Associates amicably; and
WHEREAS David Rovang has fonned a sole proprietorship known as Rovang and Associates and
desires to accept an assignment and novation of the Contract, and Eric Fong desires to assign all
control and rights of the Contract to David Rovang DBA Rovang and Associates;
NOW, THEREFORE, in consideration of the mutual benefits to be derived, the promises and
covenants contained herein, and other good and valuable consideration, David Rovang and Eric Fong
contract and agree as follows:
1. As part of the division of the rights, responsibilities, assets and liabilities of Rovang Fong and
Associates, Eric Fong, acting individually and as a partner of Rovang Fong and Associates,
hereby assigns all control , responsibility, benefits and rights of the Contract to David Rovang
DBA Rovang and Associates effective June 1, 2010.
2. As part of the division of the rights, responsibilities, assets and liabilities of Rovang Fong and
Associates, David Rovang, acting individually, as a partner Rovang Fong and Associates, and
as the owner of Rovang and Associates, hereby agrees to accept all control, responsibility,
benefits and rights of the Contract, effective June 1, 2010.
IN WITNESS WHEREOF, in consideration of the terms, conditions and covenants contained herein,
or attached and incorporated and made a part there VDAVgROVANG, ecuted this contract by
affixing their signatures below. Dated: � , 2 2
WWS B , 0925
Dated: �! o
M. FONG, #26030
APPROVED on behalf of the city of Bremerton:
Dated: / /z //v !�� Z�
PATTY L , MAYOR
APPROVED AS TO FORM:
R GER A. IAOVICH, City Attorney
Contract Number:
Vendor:
Subject:
Department:
File Class:
Begin Date:
End Date:
Review Date:
Vault Date:
4894
ROVANG FONG & ASSOCIATES
Public Defense Services
Muni Court
LEG 12-1
O1/O1/2010
12/31/2013
09/Ol/2013
Comments :
City of �remerton
Public Defense Services
Contr�.ct for Services
Table of Contents
Section 1:
Section 2:
Section 3:
Section 4:
Section 5:
Section 6:
Section 7:
Section 8:
Section 9:
Section 10:
Section 11:
Section 12:
Section 13:
Section 14:
Section 15:
Section 16:
Section 17:
Section 18:
Section 19:
Section 20:
Section 21:
Section 22:
Section 23:
Section 24:
Section 25:
Section 26:
DEF[NITIONS
PUBLIC I)EFENSE STANDARDS
I)URATION OF' CONTRACT
SCOPE OF WORK
PERFORMANCE AND QUALIFICATIONS
PAYMENT
REPORTING REQUIREMENTS
AI)DRESSES FOR NOTICES AND DELIVERABLE MATERIALS
OTHER EMPLOYMENT
CORRECTIVE ACTION
TERMINATION AND SUSPENSION
DISPUTES (OTHER THAN SUSPENSION OR TEI2MINATION)
EQUAL EMPLOYMENT OPPORTUNITY
OTHER LEGAL REQUIREMENTS
INDEMNIFICATION
INSURANCE
ESTABLISHMENT AND MAINTENANCE OF RECORDS
AUDITS, RECOIZDS, AND ANNUAL FINANCIAL STATEMENTS
CONTRACTUAL RELATIONSHIP
ASSIGNMENT AND SUBCONTRACTING
INVOLVEMENT OF FORMER CITY EMPLOYEES
NO CONFLICT OF INTEREST
ERRORS & OMISSIONS; C012RECTION
CONFIDENTIALITY
EXTRA WORK
MISCELLANEOUS PROVISIONS
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CONTRACT FOR
CITY OF BREMERTON PUBLIC DEFENSE SERVICES
WHEREAS, this Contract is made and entered into by and between The City of Bremerton ("the
City"), a Washington municipal corporation and Rovang Fong & Associates ("Public
Defender"), whose address is 569 Division Street, Suite A, Port Orchard, WA 98366.
WHEREAS, the City desires to have legal services, as described in the Contract, performed for
indigent persons legally entitled to appointed representation in the City of Bremerton, by Rovang
Fong & Associates, as an independent contractor.
WHEREAS, the City and the Public Defender agree that any and all funds provided pursuant to
this Contract are provided for the sole purpose of provision of legal services to indigent persons
prosecuted with crimes in Bremerton Municipal Court.
NOW, THEREFORE, in consideration of the mutual benefits to be derived, the promises and
covenants contained herein, and other good and valuable consideration, the parties CONTRACT
AND AGREE as follows:
Section 1: DE�INITIONS
A. Case Assi ng ment: A case assignment is that particular case assigned by the City.
B. Case Credit: Case credit is a unit of work. The total number of units that each attorney is
expected to perform is listed in the case credit workload standards.
C. Citv: City is the City of Bremerton.
D. Client: An indigent person who has been assigned to the Public Defender by the City.
E. Completed Case: A completed case involves all necessary legal action from arraignment
through disposition or the necessary withdrawal of counsel after the substantial delivery of legal
services. This includes the filing of a notice of appeal upon the client's request, application to
proceed in forma pauperis on appeal, and a motion for appointment of appellate counsel.
F. Contract Administrator: Contract Administrator is the City of Bremerton Municipal
Court Administration.
G. Court: Court is the Municipal Court of Bremerton.
H. Criminal Case: A case is any one charge or series of related charges filed against one
defendant/respondent. '
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I. Criminal Case Dis�osition: Case disposition shall mean the dismissal of charges, the
entering of an order of deferred prosecution, an order or result requiring a new trial, imposition
of sentence or deferral of same, or dispositional continuance and any other hearing on that cause
number.
1. A restitution hearing ordered at the time of original disposition shall be included
as part of the case credit as defined by this disposition description. It shall include the filing of a
notice of appeal, if applicable.
J. Discoverv: Discovery consists of those reports, letters, memorandums, after-action
reports, incidents reports, witness statements, officers' statements, expert witness reports which
the City Prosecutor is obligated to provide on a continuing basis under the City or State code and
pursuant to the State and Federal Constitutional requirements.
K. Legal Service: Legal service is legal representation provided by a licensed attorney and
associated paraprofessional staff to an individual client, pursuant to a case assignment or court
appointment. The attorney will be required by the Public Defender to satisfy the Code of
Professional Responsibility, the law of the State of Washington and the United States in the full
discharge of the duties to each individual client under this Contract.
L. Indi�ent Defendant: An indigent defendant is a person determined indigent by the Court,
as being eligible for a court-appointed attorney, pursuant to RCW 10.101.
M. Mayor: Mayor is the Mayor of Bremerton or designee.
N. Misdemeanor Practice Area:
1. Misdemeanor Case: Any criminal case filed by the Bremerton City Attorney or
designee in Bremerton Municipal Court whether a misdemeanor or a gross misdemeanor.
2. Misdemeanor Appeal: A misdemeanor appeal involves filing the notice of
appeal, if necessary, perfecting the record following the filing of the notice of appeal, preparation
of the transcript pursuant to Rule 6.3a RALJ, preparing such briefs and memoranda as are
required, arguing the case in Superior Court, and handling such paperwork as the Superior
Court's decision and orders direct.
3. Misdemeanor Writ: A writ involves filing notice, perfecting the record, preparing
such briefs and memoranda as required, arguing the case in Superior Court and handling such
paperwork as the Superior Court's decision and orders direct.
O. Paraprofessional Staf£ Investigators, social workers and paralegals.
P. Public Defender: The Public Defender is Rovang Fong & Associates.
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Section 2: PUBLIC DEFENSE STANDARDS
The City adopts the following standards for the delivery of Public Defense Services, pursuant to
RCW 10.101.030:
A. Com�ensation of Counsel: Compensation of counsel shall be in accordance with the
provisions set forth in sections 4 and 6 of this agreement.
B. Duties and Responsibilities of Counsel: The duties and responsibilities of counsel shall be
in accordance with this agreement.
C. Caseload Limits: Public Defender caseloads for Bremerton misdemeanor cases shall be
no higher than 450 case credits per-attorney per-year.
D. Responsibility for Expert Witness Costs: After approval by the Court, expert witness fees
will be paid by the City.
E. Attornevs and Staff: The Public Defender shall provide two full-time attorneys and one
full-time paraprofessional staff person to provide services pursuant to this contract.
F. Supervision: The Public Defender shall provide supervising attorneys at the following
standards: one supervisor for every two attorneys.
Section 3: DURATION OF CONTRACT
This Contract shall commence on the first (1 st) day of January 2010 and terminate the thirty-first
(31 st) day of December 2013 unless extended or terminated earlier pursuant to the terms and
conditions of this Contract.
Section 4: SCOPE OF WORK
A. Pu ose: The purpose of this agreement is to provide legal services through effective
assistance of counsel to indigent persons. Legal services shall be statutorily and constitutionally
based.
B. Professional Conduct:
1. The Public Defender shall provide the services of attorneys and staff inembers in
compliance with all of the applicable laws and administrative regulations of the State of
Washington, the United States, Bremerton Municipal Code, and the Washington State Rules for
Professional Conduct (RPC).
2. Nothing in this contract shall be construed to impair or inhibit the exercise of
independent, professional judgment by an attorney employed by the Public Defender with
respect to any client wherein an attorney-client relationship has been established pursuant to the
terms of this Contract.
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3. Nothing in this contract shall require or permit, without the consent of the client,
access to or disclosure of any confidential communication made by a client to any attorney
employed by the Public Defender or any such confidential communications made to agents or
employees of the Public Defender for such attorney; the advice given by an attorney to a client;
or any other statements and materials privileged from disclosure in a court of law.
4. Attorneys and staff employed by the Public Defender shall not solicit or accept
any compensation, gifts, gratuities or services from any client.
C. Eligible Population: The population served shall be indigent persons legally entitled to
appointed legal services in Bremerton Municipal Court, as assigned by the Court.
D. Case Assi n�ment: The Public Defender shall accept case assignments, including case
assignments above the projected variance levels. The City shall pay the Public Defender for
work in excess of the variance levels of this Contract.
E. Conflicts: The Public Defender reserves the right to decline to advise or represent any
client on the basis of actual legal, ethical, or professional conflict of interest. The Public
Defender shall be responsible for checking for conflicts and identifying if a conflict exists. The
Public Defender shall have a written policy which explains how they define conflict cases. This
policy must be approved by the Contract Administrator. The Public Defender shall perform a
conflicts check before any substantial work is done on the case.
F. Duties and Responsibilities of the Public Defender: In order to perform its
responsibilities under the Contract, the Public Defender shall have the power and duty to:
Hire all Public Defender personnel;
2. Provide fiscal management; establish compensation of personnel; maintain
payroll records and provide payments for all personnel including withholding of income taxes,
payment of social security taxes, payment of worker compensation and industrial insurance taxes
(where applicable), and fringe benefits;
3. Supervise and maintain the quality of staff and services received or performed,
and provide internal evaluation sessions as necessary;
4. Suspend remove, or terminate personnel not adequately performing the duties and
responsibilities assigned, engaging or condoning misconduct, or whose conduct or continued
performance of duties is detrimental to the Public Defender program;
5. Accept and represent all cases and clients officially referred by the Court unless
withdrawal from such representation is allowed in accordance with provisions as stated above;
6. In the event that this contract is terminated or not renewed, the Public Defender
shall continue to provide services pursuant to this Contract for three (3) months after the
termination date. Public Defender shall not be assigned any new cases, however, Public
Defender shall attempt to complete the representation of all clients who have been referred by
the Court during the period in which the contract is in effect for the compensation received or
receivable under the terms of the Contract, provided that completed representation is not made
impossible by a client's failure to appear.
G. Duties and Responsibilities of Public Defender Attorne� In order to perform their
duties under this Contract, staff attorneys of the Public Defender shall:
1. Counsel and represent in all ensuing criminal proceedings before appeal those
clients who are officially referred by the Court. Such services include, but are not limited to:
preparation for and representation of the client at the pretrial hearings, trial and at sentencing
hearings or any other related proceedings.
2. Counsel clients with regard to their rights to appellate review and file any
necessary notice for appellate review when requested by a client.
Section 5: PERFORMANCE AND QUALIFICATIONS
A. Practice Standards and Records
1. The Public Defender shall ensure that all attorneys, paraprofessional staff and
supervisors shall maintain contemporaneous records of all legal services provided on a specific
case. The records shall provide a factual description of the work done and shall be sufficiently
detailed to allow monitoring of legal service activity by the Contract Administrator, subject to
any ethical obligations of the Public Defender. �
2. Upon closing a case, all attorney, paraprofessional and supervisor files associated
with the case shall be cross referenced and accessible as a whole for monitoring by the Contract
Administrator, subject to any ethical obligations of the Public Defender.
3. The Public Defender shall establish practice standards to address the following
substantive areas of contract compliance. The practice standards shall set objective expectations
for each position and shall be measurable by objective means. With each practice standard, the
Public Defender shall include a procedure for monitoring compliance with the standard. Written
practice standards are due to the Contract Administrator annually. Practice standards should
address the following areas:
a. Attorney practice, including but not limited to;
i. Lawyer-client relationship, initial case actions, investigation and
preparation, preliminary hearings; disposition without trial; trial;
post conviction or fact finding and any other areas of attorney
practice deemed appropriate by Public Defender management or
Board.
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ii. Attorney use of paraprofessionals and expert service.
b. Paraprofessional practice.
Supervision of attorneys and paraprofessionals.
4. The Public Defender agrees that, within available resources, reasonable efforts
will be made by the Public Defender to continue the initial attorney assigned to a client
throughout any case in which representation is undertaken. The Public Defender is not
prohibited from rotating attorneys or from assigning a single attorney to handle various aspects
of legal proceedings for all indigent persons where such method of assignment is the most
reasonable method of obtaining effective legal representation for indigent persons.
5. A member of the Public Defender staff shall visit any assigned in-custody
criminal defendant and obtain basic contact and other fundamental intake information for a bond
hearing within one (1) working day from notification to the Public Defender of the assignment of
the case and the in-custody status of the client. This provision applies to clients in custody at any
facility within Kitsap County.
6. The Public Defender attorneys shall attempt to make contact with all assigned
clients within five (5) working days from a case assignment or no later than the day prior to the
first pretrial hearing whichever comes first.
7. The Bremerton City Attorney's Office or designee is responsible for making a
copy of discovery available to the Public Defender. The Public Defender shall request discovery
as soon as possible after case assignment but no later than three (3) business days of the
assignment, whether initial or subsequent, on any case. The Public Defender shall obtain a copy
of discovery at arraignment if available. The Public Defender agrees that discovery may be
provided in electronic format.
8. Discovery shall be reviewed within five (5) days after receipt for purposes of
determining any conflicts of interest. The Public Defender shall notify the Contract
Administrator immediately of any conflict of interest as defined by the Washington State Rules
of Professional Conduct. The Public Defender shall provide the Contract Administrator with a
written explanation stating the basis for the conflict in its notification.
9. The Public Defender shall establish and enforce policies and procedures to ensure
that attorney time and other Defender resources funded by this Contract shall only be used for
work which is authorized by this Contract.
10. The Public Defender shall ensure that a preliminary written response to any
written complaints concerning services provided by the employees of the Defender or the
Defender itself shall be submitted to the Contract Administrator within three (3) working days of
the date the complaint is received by the Public Defender. Written complaints include e-mail
communications from the Contract Administrator. The Contract Administrator shall copy the
supervising attorney on any complaints sent to the Public Defender.
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11. The Public Defender shall establish policies and procedures for pro-bono work
provided by staff of the Public Defender. These policies and procedures shall assure that any
such pro bono work is not provided to the exclusion or detriment of legal services that are the
subject of this Contract.
12. The Public Defender or his attorneys shall not provide transportation to any client
assigned to the public defender pursuant to this contract.
B. Minimum AttorneX Qualifications:
1. Every attorney providing indigent defense services must be a licensed member of
the Washington State Bar and be a member in good standing of the Bar.
2. Every Public Defender attorney shall satisfy the minimum requirements for
practicing law in Washington as determined by the Washington Supreme Court; seven (7) hours
of each year's required continuing legal education credits shall be in courses relating to criminal
law practice or other areas of law in which the Public Defender provides legal services to clients
under the terms of this Contract or is approved by the Washington State Office of Public
Defense. The Public Defender will maintain for inspection on its premises records of
compliance with this provision.
3. The Public Defender may employ interns pursuant to Admission to Practice Rule
(APR) 9. No more than 5% of the cases handled by the Public Defender may be assigned to Rule
9 interns. However, Rule 9 interns may not be used to supplant the services of an attorney
assigned by the Public Defender to perform the services of this Contract.
4. The Public Defender attorneys who supervise the misdemeanor attorneys must
have at least three years of criminal defense experience in superior, district or municipal courts in
Washington State.
5. Unless prior written approval has been granted by the Contract Administrator, no
attorney may provide services under this contract if that attorney has been removed from
representation in a case for failure to perform basic services necessary to the case or to the client,
or in any manner has been found to be ineffective on appeal by either an ethics panel or by an
appellate court.
C. Evaluations:
The Public Defender Supervisor, or his/her designee, shall evaluate the professional performance
of Public Defender attorneys and paraprofessional staff annually. Attorney evaluations should
include monitoring of time and caseload records, review of case files, quality of case preparation,
as well as in-court observation. Paraprofessional evaluations shall be sufficiently comprehensive
to assess the quality of the actual work performed. The Contractor shall submit to the City a
summary report of the annual attorney performance evaluations. The Contractor shall make
available to the City its evaluation criteria and evidence evaluations were conducted, although all
evaluations are to be confidential between the Contractor's director and the Contractor attorney.
Section 6: PAYMENT
A. The City shall reimburse the Public Defender for the services as specified in Section 4,
Scope of Work, in the amount not to exceed $195,700 annually.
B. The Public Defender shall provide the City with a certification of completed case
assignments twenty (20) working days after the close of each calendar month. The City will pay
the Public Defender by the thirtieth (30) working day of the following month.
C. In the event of failure to comply with any items and conditions of this Contract or to
provide in any manner the work or services as ageed to herein, the City reserves the right to
withhold any payment until the City is satisfied that corrective action has been taken or
completed. This option is in addition to and not in lieu of the City's right to termination as
provided in Section 13 of this Contract.
Section 7: REPORTING REOUI1tEMENTS
Case Management System: The Public Defender will use a case management system that will
allow them to file the monthly report described below electronically.
Reporting: The Public Defender will provide the City with monthly electronic reports in
acceptable format on all closed cases. Cases�must be closed within 60 days after the last hearing
on the case. These reports must contain:
• Defendant's name
• Cause number(s)
• Criminal charges filed
• If it was a probation review hearing
• Disposition of each charge
� Number of court hearings
• Number of failures to appear and warrants issued
• Defendant's jail custody status prior to sentencing
• Bench Trial, Jury Trial, Plea or Dismissal
• If dismissal, reason for the dismissal
• Whether an appeal was filed
• Attorney(s) name(s)
• Date case assigned
• Date case closed
• Hours spent by attorney
• Hours spent by each type of support staff, investigators, social workers, or
paralegals
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The Public Defender must provide the Contract Administrator the reports described below.
Re ort Title Due Date
Open and Closed Case Reports including Monthly (by 20cn day of the following month)
attorne assignment
Quarterly Case Credit and Case Allocation Quarterly (April, July, October, January)
Re ort
Year-end Attorney Case Assignment Report January
Year-End Closed Case Report January
Additional summaries, reports or documents as Varies
requested by the Contract Administrator with
reasonable notice
The City of Bremerton, or any of its duly authorized representatives, shall have access to any
such books, records and documents for inspection, audit and copying. The report is due on or
before the twentieth (20cn) day of the following month for services of the prior month. Payment
may be withheld if reports are not submitted on time.
The Public Defender will immediately notify the Contract Administrator in writing when it
becomes aware that a complaint lodged with the Bar Association has resulted in reprimand,
suspension, or disbarment of an attorney providing services under this Contract.
Section 8: ADDRESSES FOR NOTICES AND DELIVERABLE MATERIALS
All official notices under this Contract shall be delivered to the following addresses (or such
other address(es) as either party may designate in writing):
If to Citv:
City of Bremerton
345 6` Street, Suite 600
Bremerton, WA 98337
If to the Public Defender:
Rovang Fong & Associates
569 Division Street, Suite A,
Port Orchard, WA 98366
Section 9: OTI�ER EMPLOYMENT
The Public Defender agrees that its legal staff assigned to the Bremerton Municipal Court shall
have as their primary employment representation of indigent clients in Bremerton Municipal
Court. The Public Defender further agrees that it will abide by all provisions of this Contract
regarding Personal Performance of this Contract.
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Section 10: CORRECTIVE ACTION
If the City believes that a breach of this Contract has occurred, and if the City believes said
breach to warrant corrective action, the following sequential procedure shall apply:
A. The City will notify the Public Defender in writing of the nature of the breach;
B. The Public Defender shall respond in writing within three (3) working days of its receipt
of such notification, which response shall indicate the steps being taken to correct the specified
deficiencies, and the proposed completion date for bringing the Contract into compliance, which
date shall not be more than ten (10) working days from the date of the Public Defender's
response;
C. The City will notify the Public Defender in writing of the City's determination as to the
sufficiency of the Public Defender's corrective action plan. The determination of the sufficiency
of the Public Defender's corrective action plan will be at the sole discretion of the City; however,
the City's determination of the sufficiency of the Public Defender's corrective action plan shall
take into consideration the reasonableness of the proposed corrective action, in light of the
alleged breach. In all cases where corrective action is determined by the City to be appropriate,
the City shall work with the Public Defender to implement the plan;
D. In the event that the Public Defender does not respond within the appropriate time with
the corrective action plan, or the Public Defender's corrective action plan is determined by the
City to be insufficient, the City may commence termination of this Contract in whole or in part
pursuant to Section 13 (�) Termination and Suspension;
E. In addition, the City may withhold any payment owed the Public Defender or prohibit the
Public Defender from incurring additional obligations of funds until the City is satisfied the
corrective action has been taken or completed; and
F. Nothing herein shall be deemed to affect or waive any rights the parties may have
pursuant to Section 13 Termination and Suspension.
Section 11: TERMINATION AND SUSPENSION
A. The City may terminate this Contract in whole or in part upon ten (10) days' written
notice to the Public Defender in the event:
1. The Public Defender substantially breaches any duty, obligation, or service
required pursuant to this Contract.
2. The duties, obligations, or services herein become impossible, illegal, or not
feasible.
3. The City determines that the Public Defender Services are no longer necessary.
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Before the City terminates this Contract pursuant to subsection 13. A. - Termination and
Suspension, the City shall provide the Public Defender written notice of termination, which
notice shall include the reasons for termination and the effective date of termination. The Public
Defender shall have the opportunity to submit a written response to the City within (10) working
days from the date of the City's notice. If the Public Defender elects to submit a written
response, the Contract Administrator will review the response and make a determination within
ten (10) days after receipt of the Public Defender's response.
In the event this Contract is terminated in whole or in part pursuant to Subsection A(1) of this
Section, the Public Defender shall be liable for damages, including the reasonable costs of the
procurement of similar services from another source unless it is determined by the Contract
Administrator that (i) no default actually occurred, or (ii) the failure to perform was without the
Public Defender's control, fault or negligence.
B. In the event that for any reason, expected or actual funding from any source, not to
include funding appropriated by the City from City funds, shall be reduced, withdrawn,
suspended, or otherwise not available, the City may suspend or terminate any portion of this
Contract which relies on the reduced, withdrawn, suspended, or otherwise unavailable funds.
The City will notify the Public Defender in writing that the specific funding is no longer
available for all or part of this Contract, and upon receipt of such notice, the Public Defender will
be released from performing the services required under the terms of this Contract which relied
upon such funding. The City will be released from contracted liability with the Public Defender
for cases not yet assigned pursuant to portions of this Contract for which funds have not been
received by the City.
In the event that any such termination or suspension is required, the termination or suspension of
services required to be performed under the terms of this Contract shall be limited to such
services that directly rely on such funding; the balance of this Contract shall remain in full force
and effect.
C. In the event of the termination or suspension of this Contract, the Public Defender shall
receive a pro-rated payment for services rendered through the termination date of the Contract.In
addition, the Public Defender shall receive payment for the three month transition period
following termination of the contract on a decreasing schedule of 75% for the first month, 50%
for the second month and 25% for the third month.
D. In the event that termination is due to misappropriation of funds, non-performance of the
scope of services, or fiscal mismanagement, the Public Defender shall return to the City those
funds, unexpended or misappropriated, which, at the time of termination, have been paid to the
Public Defender by the City.
E. Otherwise, this Contract shall terminate on the date specified herein, and shall be subject
to extension only by mutual agreement of both parties hereto in writing.
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F. Nothing herein shall be deemed to constitute a waiver by either party of any legal right or
remedy for wrongful termination or suspension of the Contract.
G. In the event of termination, suspension, or non-renewal of this Contract, all cases not
required to be completed by the Public Defender shall be returned to the Contract Administrator
for reassignment.
Section 12: DISPUTES (OTHER THAN SUSPENSION OR TERMINATION)
A. The Public Defender shall address questions or claims regarding meaning and intent of
the Contract or arising from this Contract in writing to the City Contract Administrator, within
ten (10) calendar days of the date in which the Public Defender knows or should know of the
question or claim. The City will ordinarily respond to the Public Defender in writing with a
decision, but absent such written response, the question or claim shall be deemed denied upon
the thirtieth day following receipt by the City.
Section 13: EQUAL EMPLOYMENT OPPORTUNITY
A. The Public Defender shall not discriminate against any employee or applicant for
emplo}mient because of race, religion, creed, age, color, sex, marital status, sexual orientation,
gender identity, political ideology, ancestry, national origin, or the presence of any sensory,
mental or physical handicap, unless based upon a bona fide occupational qualification.
Section 14: OTHER LEGAL REOUIREMENTS
A. � General Rec�uirement: The Public Defender, at no expense to the City, shall comply with
all applicable laws of the United States and the State of Washington; the Charter and ordinances
of The City of Bremerton; and rules, regulations, orders, and directives of their administrative
agencies and the officers thereof. Without limiting the generality of this paragraph, the Public
Defender shall specifically comply with the following requirements of this section.
B. Licenses and Similar Authorizations: The Public Defender, at no expense to the City,
shall secure and maintain in full force and effect during the term of this Contract all required
licenses, permits, and similar legal authorizations, and comply with all requirements thereof.
Section 15: INDEMNIFICATION
The Public Defender does hereby release and shall defend, indemnify, and hold the City and its
employees and agents harmless from all losses, liabilities, claims (including claims arising under
federal, state or local environmental laws), costs (including attorneys' fees), actions or damages
of any sort whatsoever arising out of the Public Defender's performance of the services �
contemplated by this Contract to the extent attributable to the acts or omissions, misconduct or
breach of this Contract by the Public Defender, its servants, agents, and employees. In
furtherance of these obligations, and only with respect to the City, its employees and agents, the
Public Defender waives any immunity it may have or limitation on the amount or type of
damages imposed under any industrial insurance, worker's compensation, disability, employee
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benefit or similar laws. The Public Defender acknowledges that the foregoing waiver of
immunity was mutually negotiated and agrees that the indemnification provided for in this
section shall survive any termination or expiration of this Contract.
Section 16: INSURANCE
Insurance certification required. The Public Defender must carry the following coverages
and limits of liability:
• General Liability with a minimum limit of liability of $1,000,000 combined single
limit each occurrence bodily injury and property damage.
• Professional Liability (Errors, and Omissions) for attorneys with a minimum limit of
liability of $2,000,000 each claim.
m Workers' Compensation per statutory requirements of the Washington industrial
insurance RCW Title 51.
Section 17: ESTABLISHMENT AND MAINTENANCE OF RECORDS
A. These records shall be maintained for a period of (6) years after termination hereof unless
permission to destroy them is granted by the Office of the Archivist in accordance with RCW
Chapter 40.14.
B. Willful failure to maintain or produce records or other required documentation during the
time for maintenance of records may result in specific, related costs being disallowed. In the
event the City has reason to believe that such a failure exists, notice shall be given to the Public
Defender and the Public Defender shall respond in writing. The time for notification and
response shall be the same as set forth in Section 13.A
Section 18: AUDITS. RECORDS, AND ANNUAL FINANCIAL STATEMENTS
A. The Public Defender must ensure that the City has full access to materials necessary to
verify compliance with all terms of this contract. At any time, upon reasonable notice during
business hours and as often as the City may deem necessary for a period of six (6) years, the
Public Defender shall provide to the City right of access to its facilities, including those of any
subcontractor, data, and other data relating to all matters covered by this contract. Provided that
if any such data, records or materials are subject to any privilege or rules of confidentiality the
Public Defender must maintain such data in a form or manner to provide same to the City that
will not breach such confidentiality or privilege. .
The Public Defender shall maintain such data and records in an accessible location and condition
for a period of not less than six (6) years following the receipt of final payment under this
Contract, unless the City agrees in writing to an earlier disposition.
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The Public Defender agrees to cooperate with the City or its agent in the evaluation of the Public
Defender's performance under this Contract and to make available all information reasonably
required by any such evaluation process or ongoing reporting requirements established by the
City. The results and records of said evaluations and reports shall be maintained and disclosed in
accordance with RCW Chapter 42.17.
Notwithstanding any of the above provisions of this paragraph, all Constitutional, statutory,
and common law rights and privileges of any indigent client are not waived. Provided
further that nothing in this section shall require the disclosure of the names of any client
represented pursuant to RCW 13.34 et seq, or RCW 71.02 et seq, or RCW 71.05 et seq.
B. All such reports as are required under the terms of this Contract shall be submitted to the
City via electronic media (e-mail attachment or diskette) within the time limits for each report.
Section 19: CONTRACTUAL RELATIONSHIP
The relationship of the Public Defender to the City by reason of this Contract shall be that of an
independent contractor. This Contract does not authorize the Public Defender to act as the agent
or legal representative of the City for any purpose whatsoever and neither the Public Defender
nor its employees shall be deemed employees of the City. The Public Defender is not granted
any express or implied right or authority to assume or create any obligation or responsibility on
behalf of or in the name of the City or to bind the City in any manner or thing whatsoever. It is
expressly understood and agreed that the Public Defender and the Public Defender's employees
shall in no event be entitled to any benefits to which City employees are entitled, including, but
not limited to overtime, any retirement benefits, worker's compensation benefits, and injury leave
or leave benefits. The Public Defender shall complete this Contract according to the Public
Defender's own means and methods of work, which shall be in the exclusive charge and control
of the Public Defender and which shall not be subject to control or supervision by the City,
except such requirements for performance as are specified in this City.
The Public Defender agrees that it has secured or will secure at the Public Defender's own
expense, all persons, employees, and equipment required to perform the services
contemplated/required under this Contract.
Section 20: ASSIGNMENT AND SUBCONTRACTING
The Public Defender shall not assign or subcontract any of its obligations under this Contract
without the City's written consent, which may be granted or withheld in the City's sole
discretion. Said consent must be sought in writing by the Public Defender not less than fifteen
(15) days prior to the date of any proposed assignment. Any subcontract made by the Public
Defender shall incorporate by reference all the terms of this Contract. The Public Defender shall
ensure that all subcontractors comply with the obligations and requirements of the subcontract.
The City's consent to any assignment or subcontract shall not release the Public Defender from
liability under this Contract, or from any obligation to be performed under this Contract, whether
occurring before or after such consent, assignment, or subcontract.
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Section 21: INVOLVEMENT OF FORMER CITY EMPLOYEES
A. The Public Defender shall promptly notify the City in writing of any person who is
expected to perform any of the Work funded by this contract and who, during the twelve (12)
months immediately prior to the expected commencement date of such work or subcontract, was
a City officer or employee.
B. The Public Defender shall ensure that no Work or matter related to the Work funded by
this contract is performed by any person (employee, subcontractor, or otherwise) who:
(1) was a City officer or employee within the past twelve (12) months; and
(2) as such was officially involved in, participated in, or acted upon any matter
related to the Work.
Section 22: NO CONFLICT OF INTEREST
The Public Defender confirms that the Public Defender does not have a business interest or a
close family relationship with any City officer or employee who was, is, or will be involved in
the Public Defender selection, negotiation, drafting, signing, administration, or evaluating the
Public Defender's performance. As used in this section, the term "Public Defender" shall include
any employee of the Public Defender who was, is, or will be involved in the negotiation,
drafting, signing, administration, or performance of the Contract. As used in this section, the
term "close family relationship" refers to the following: spouse or domestic partner; any
dependent parent, parent-in-law, child, son-in-law, or daughter-in-law; or any parent, parent-in-
law, sibling, uncle, aunt, cousin, niece or nephew residing in the household of a City officer or
employee described above.
Section 23: ERRORS & OMISSIONS; CORRECTION
The Public Defender shall be responsible for the professional quality of all services furnished by
or on the behalf of the Public Defender under this Contract. The Public Defender, without
additional compensation, shall correct or revise any Public Defender services immediately upon
notification by the City. The obligation provided for in this section with respect to any acts or
omissions during the term of this Contract shall survive any termination or expiration of this
Contract.
Section 24: CONFIDENTIALITY
The parties agree that they will not permit the duplication or disclosure of any information
designated in advance by the other party as "Confidential and Proprietary" to any person (other
than its own employee, agent, or representative who must have such information for the
performance of that party's obligations hereunder) unless such duplication, use or disclosure is
specifically authorized in writing by the other party or is required by law. "Confidential and
Proprietary" information does not include ideas, concepts, know-how or techniques related to
information that, at the time of disclosure, is in the public domain unless the entry of that
information into the public domain is a result of any breach of this Contract. Likewise,
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"Confidential and Proprietary" information does not apply to information that is independently
developed, already possessed without obligation of contidentiality, or rightfully obtained from a
third party without an obligation of confidentiality.
Section 25: EXTRA WORK
The City may desire to have the Public Defender perform work or render services in connection
with this project other than that expressly provided for in the "Scope of Work" section of this
Contract. This will be considered extra work, supplemental to this Contract, and shall not
proceed unless authorized by an amendment. Any costs incurred due to the performance of extra
work prior to execution of an amendment will not be reimbursed under this Contract or an
amendment.
Section 26: MISCELLANEOIJS PROVISIONS
A. Amendments: No modification of this Contract shall be effective unless in writing and
signed by an authorized representative of each of the parties hereto.
B. Binding A�reement: This Contract shall not be binding until signed by both parties. The
provisions, covenants and conditions in this Contract shall bind the parties, their legal heirs,
representatives, successors, and assigns.
C. .A�plicable Law/Venue: This Contract shall be construed and interpreted in accordance
with the laws of the State of Washington. The venue of any action brought hereunder shall be in
the Superior Court for Kitsap County.
D. Remedies Cumulative: Rights under this Contract are cumulative and nonexclusive of
any other remedy at law or in equity.
E. Captions: The titles of sections are for convenience only and do not define or limit the
contents.
F. Severabilitv: If any term or provision of this Contract is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this Contract shall not be
affected thereby, and each term and provision of this Contract shall be valid and
enforceable to the fullest extent permitted by law.
G. Waiver: No covenant, term or condition or the breach thereof shall be deemed waived,
except by written consent of the party against whom the waiver is claimed, and any waiver of the
breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other covenant, term or condition. Neither the acceptance
by the City of any performance by the Public Defender after the time the same shall have
become due nor payment to the Public Defender for any portion of the Work shall constitute a
waiver by the City of the breach or default of any covenant, term or condition unless otherwise
expressly a��reed to by the City, in writing.
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H. Entire Contract: This document, along with any exhibits and attachments, constitutes the
entire Contract between the parties with respect to the Work. No verbal agreement or
conversation between any officer, agent, associate or employee of the City and any officer,
Public Defender, employee or associate of the Public Defender prior to the execution of this
Contract shall affect or modify any of the terms or obligations contained in this Contract.
I. Neg�otiated A�reement: The parties acknowledge that this is a negotiated agreement, that
they have had the opportunity to have this Contract reviewed by their respective legal counsel,
and that the terms and conditions of this Contract are not to be construed against any party on the
basis of such party's draftsmanship thereof.
J. Political Activitv Prohibited: None of the funds, materials, property, or services provided
directly or indirectly under this Contract shall be used in the performance of this Contract for any
partisan political activity or to further the election or defeat of any candidate for public office.
K. Security Access: City shall provide Public Defender three (3) access codes for entry into
the court facility after hours, except that the Public Defender shall provide the names of those
individuals who will use the access codes.
L. Parkin�: City shall provide two (2) parking slots near the Municipal Court for Public
Defender Staff.
IN WITNESS WHEREOF, in consideration of the terms, conditions, and covenants contained
herein, or attached and incorporated and made a part hereof, the parties have executed this
Contract by having their representatives affix their signatures below.
CITY OF BREMERTON
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,��r. ,/Yl�-'i
APPROVED AS TO FOR •
oger A. Lu vic , City ttorne
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