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HomeMy WebLinkAboutItem 10 Agreement with Independent Contractor David Logan to Provide Municipal Prosecutor Services to the City of Springfield AGENDA ITEM SUMMARY SPRINGFIELD Meeting Date: Meeting Type: Department: Staff Contact: Phone No.: Estimated Time: October 1, 2007 Regular CMO Jeff ToweIY<:)\ .726-3627 . Consent CITY COUNCIL ITEM TITLE: AGREEMENT WITH INDEPENDENT CONTRACTOR DAVID LOGAN TO PROVIDE MUNICIPAL PROSECUTOR SERVICES TO THE CITY OF SPRINGFIELD. ACTION REQUESTED: Authorize the City Manager to execute the proposed agreement with David Logan for Prosecutor Services for the period from July 1, 2007 to June 30, 2008. ISSUE STATEMENT: The City of Springfield contracts for municipal prosecutor services. The current contract with David Logan expired on June 30, 2007. ATTACHMENTS: Attachment 1 - City of Springfield Agreement with Independent Contractor David Logan to Provide Municipal Prosecutor Services to the City of Springfield DISCUSSIONI FINANCIAL IMPACT: The proposed one-year agreement results in a monthly cost of$18,851. This is a 3.5% increase above last year's amount plus the cost of a new part-time position that was approved in the FY2007-2008 budget process. The contract covers the cost of the City Prosecutor, one full-time clerk and three half-time clerks. The contract'amount is distributed to the General Fund (87%) and.the police levy (13%). The full amount of the contract is included in the FY2007-08 budget. Under the terms of the proposed agreement, the City Prosecutor will provide approximately 135 hours of professional legal services per month for the City. In . addition, the City Prosecutor is required to employ clerical support necessary to carry out the work of the City Prosecutor's Office. It is recommended that the proposed contract be approved. . City of Springfield Agreement with Independent Contractor David Logan to Provide Municipal Prosecutor Services to City of Springfield THIS CONTRACT is entered into this day of October, 2007 by and between the City of Springfield, a municipal corporation of the State of Oregon, hereinafter called City, and David Logan, hereinafter called Independent Contractor. WHEREAS, City has need for the services of an independent contractor with the particular training, ability, knowledge, expertise and experience possessed by Independent Contractor; now therefore, in consideration of fee described in Exhibit "A" (attached hereto and incorporated herein by reference) Independent Contractor agrees to furnish all the qualified personnel and services necessary to perform the work described in Exhibit "A". Independent Contractor agrees that the performance of work and services under this contract shall conform to high professional standards. In performing the above services, it is understood and agreed that: 1. STATUS. Independent Contractor is not currently employed by the City. The parties to this contract intend that the relationship between them created by this contract is that of an employer-independent contractor. No agent, employee, or servant of Independent Contractor shall be or shall be deemed to be the employee, agent or servant of the City. City is interested only in the results obtained under this contract; the manner and means of conducting the work are under the sole control of Independent Contractor, however, the work contemplated herein must meet the approval of the City and shall be subject to City's general right of inspection and supervision to secure the satisfactory performance thereof. 2. WORK PERFORMANCE. The work to be performed by Independent Contractor includes services generally performed by Independent Contractor in his or her usual line of business. 3. TAXES. Independent Contractor will be responsible for any federal or state taxes applicable to payments received under this contract. City will report the total of all payments to Independent Contractor, inCluding any expenses, in accordance with the Federal Internal Revenue Service and the State of Oregon Department of Revenue Regulations. 1 ATTACHMENT 1 - PAGE 1 4. BENEFITS. Independent Contractor will not be eligible for any federal social security, state workers compensation, unemployment insurance, or public employee's retirement system benefits from this contract payment, except as a self- employed individual. 5. FEDERAL EMPLOYMENT STATUS. In the event any payment made pursuant to this contract is to be charged against federal funds, Independent Contractor certifies that he or she is not currently employed by the federal government and the amount charged does not exceed his or her normal charge for the type of services provided. 6. HOLD HARMLESS AND INDEMINIFICATION CLAUSE. To the fullest extent of the law, Independent Contractor shall defend, indemnify, hold harmless and reimburse the City of Springfield (including its officers, board members, agents and employees) from all claims, demands, suits, actions, penalties, damages, and expenses for liability of any kind including attorney's fees arising out of, caused by or sustained in connection with the performance ofthis contract by Independent Contractor. To the extent that death or bodily injury to persons or damage to property arises out of the fault of the Independent Contractor, the Independent Contractor's indemnity obligation exists only to the extent it contributed to or caused such damage, whether or not such are contributed to or caused in any part by the City of Springfield. 7. INSURANCE. (A) Independent Contractor, its subcontractors, if any, and all employers working under this agreement are subject employers under the Oregon Workers' Compensation Law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage for all their subject workers; or by signing this contract, Independent Contractor represents that he or she is a sole proprietor and is exempt from the laws requiring workers' compensation coverage. (B) Independent Contractor will at all times carry a Comprehensive General Liability insurance policy for at least $500,000 combined single limits per occurrence for Bodily Injury, Property Damage, and Personal Injury. (C) Independent Contractor will at all times carry a Professional Liability/Errors and Omissions type policy with limits of at least $100,000. 8. CITY AS ADDITIONAL INSURED. The City of Springfield, its agents, employees and officials all while acting within their official capacity as such, shall be named as an additional insured on the insurance specified in paragraph 7 (B) above. A certificate of insurance evidencing any policies required by this contract shall be delivered to the City prior to the commencement of any work. A 30-day notice of cancellation clause shall be included in said certificate. The City has the right to reject any certificate for unacceptable coverage and/or companies. 9. EMPLOYEES' TAXES. Independent Contractor shall also defend, indemnify and hold harmless City against all liability and loss in connection with and shall assume full responsibility for, payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and 2 ATTACHMENT 1 - PAGE.2 income tax laws, with respect to Independent Contractor's employees engaged inthe performance of this contract. 10. TERMINATION. (A) The performance of work under the contract may be terminated by the City, in whole or in part, whenever for any reason the City shall determine that such termination is in the best interest of the City. Any such termination shall be effected by delivery to the Independent Contractor of a Notice of Termination specifying the extent to which performance of the work under the contract is terminated and the date on which such termination becomes effective. (B) Upon delivery of the Independent Contractor ofa Notice of Termination under this paragraph, the Independent Contractor and the City shall, by agreement, make an appropriate written modification to the contract governing completion of all portions of the Independent Contractor's work and payment therefore by the City. 11. CONTRACT DURATION. Except as provided for under Paragraph 10, the duration of this contract shall be from July I, 2007 to June 30, 2008. 12. RIGHTS IN DATA. (A) All original written material, including programs, card decks, tapes, listings, and other documentation originated and prepared for the City pursuant to this contract,. shall become exclusively the property ofthe City. The ideas, concepts, know-how, or techniques developed during the course of this contract by Independent Contractor personnel or jointly by Independent Contractor and City personnel can be used by either party in any way each may deem appropriate. (B) Material already in Independent Contractor's possession, independently developed by Independent Contractor outside the scope of this contract or rightfully obtained by Independent Contractor from third parties, shall belong to Independent Contractor. However, Independent Contractor grants to the City a nonexclusive, irrevocable, and royalty-free license to use such materials as it sees fit within the governmental agencies of the City. (C) This contract shall not preclude Independent Contractor from developing materials which are competitive, irrespective oftheir similarity to materials which might be delivered to the City pursuant to this contract. Independent Contractor will not, however, use any written materials developed under this contract in developing materials for others, except as provided in this section. 13. ASSIGNMENT/SUBCONTRACT. Independent Contractor shall not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this contract, in whole or in part, without the prior written approval of the City. No such written approval shall relieve Independent Contractor of any obligations of this contract, and any transferee or subcontractor shall be considered the agent ofIndependent Contractor. Independent Contractor shall remain liable as between the original parties to the contract as if no such assignment has occurred. 14. SUCCESSORS IN INTEREST. The provisions of this contract shall be binding upon and shall inure to the benefit of the parties to the contract and their respective successors and assigns. 3 . ~ ATTACHMENT 1 - PAGE 3 15. COMPLIANCE WITH ALL GOVERNMENT REGULATIONS. Independent Contractor shall comply with all federal, state and local laws, codes, regulations and ordinances applicable to. the work performed under this contract. Failures to comply with such requirements shall constitute a breach of contract and shall be grounds for contract cancellation. Damages or costs resulting from noncompliance shall be the sole responsibility of Independent Contractor. 16. FORCE MAJEUR. Neither party to this contract shall be held responsible for delay or default caused by fire, riot, acts of God andlor war which is beyond that party's t;easonable control. The City may terminate this contract upon written notice after determining such delay or default will reasonably prevent successful performance of the contract. 17. ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT. In the event of any claim or suit against the City on account of any allegation of patent or copyright infringement arising out of the performance of this contract or out of the use of any material furnished or work or services performed here under, Independent Contractor shall defend the City against any such suit or claim and hold the City harmless from any and all expenses, court costs, and attorney's fees in connection with such claim or suit. IS. SEVERABILITY. If any provision ofthis contract is declared by a court to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected; and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the particular provision held to be invalid. 19. ACCESS TO RECORDS. The City and its duly authorized representatives shall have access to books, documents, papers and records of Independent Contractor which are directly pertinent to this contract for the purpose of making audit, examination, excerpts and transcripts. 20. WAIVER. Failure of the City to enforce any provision ofthis contract shall not constitute a waiver or relinquishment by the City of the right to such performance in the future nor of the right to enforce any other provision of this contract. 21. AMENDMENTS. The terms of this contract shall not be waived, altered, . modified, supplemented or amended in any manner whatsoever, without prior written approval of the City. . 22. NONDISCRIMINATION. Independent Contractor shall comply with all applicable requirements of federal and state civil rights and rehabilitation statutes, rules and regulations. 23. DUAL PAYMENTS. Independent Contractor shall not be compensated for work performed under this contract from any City agency other than the agency which is a party to this contract. 4 ATTACHMENT 1 - PAGE 4 24~ REMEDIES. This contract shall be governed by and construed in accordance with the laws of the State of Oregon as interpreted by the Oregon courts, and any litigation arising out of this contract shall be conducted in the courts of the State of Oregon, County of Lane. 25. TERMS REQUIRED BY OREGON STATUTE. (A) Independent Contractor shall: (I) Make payment promptly, as due, to all persons supplying Independent Contractor labor or material for the prosecution of the work provided for in this contract. (II) Pay all contributions or amounts due the Industrial Accident Fund from Independent Contractor incurred in the performance of this contract. (III) Not permit any lien or claim to be filed or prosecuted against the state, county, school district, municipality, municipal corporation or subdivision thereof, on account of any labor or materials furnished. (IV) Pay to the Department of Revenue all sums withheld from employees pursuant to ORS 316.167. (V) Promptly, as due, make payment to any person, co-partnership, association or corporation, furnishing medical, surgical and hospital care or other needed care and attention, incident to sickness or injury, to the employees of Independent Contractor, of all sums which Independent Contractor agrees to pay for such services and all moneys and sums which Independent Contractor collected or deducted from the wages of employees pursuant to any law, contractor or agreement for the purpose of providing or paying for such service. . (B) IfIndependent Contractor fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to Independent Contractor by any person in connection with this contract as such claim becomes due, the proper officer or offices representing City may pay such claim to the person furnishing the labor or services and charge the amount of the payment against funds due or to become due Independent Contractor by reason of this contract. (C) Independent Contractor shall not employ any person under this contract for more than eight hours in anyone day, or 40 hours in anyone week, except in cases of necessity, emergency, or where the public policy absolutely requires it. Any laborer working pursuant to this contract, shall be paid at least time-and-a-half for all overtime, worked in excess of forty hours in anyone week, except for individuals who are excluded under ORS 653.010 to 653.261, or under 29 USC Section 201 to 209 from receiving overtime. CITY OF SPRINGFIELD INDEPENDENT CONTRACTOR B~Dltr= Name:JYtV(() M ~ ~l}o/I);J Title: tI'!J q()5~CI Tf1) U2.- By: Name: Title: UEVIEWED & t\PPROYED ~Rrv'! '. \ . .. _:F:\._-=~ ~ ~ DATE:*'-/ ~~ LEGAL COUNSEL 5 ATTACHMENT 1 - PAGE 5 EXHIBIT "A" Compensation The City shall pay $18,851.00 monthly beginning July 1, 2007 for services performed under . this agreement. . Scope of Services Act as the City Prosecutor pursuant to a personal services contract administered by the City Manager, or the City Manager's designee, and the City Attorney. More specifically, the Independent Contractor shall: 1. Authorize, file, prepare, and try major misdemeanor criminal cases, major traffic cases, and attorney-represented infraction cases, including those outside the usually criminal offense categories (nuisance, zoning, building, licensing, and so forth), in the City of Springfield Municipal Court, and if appealed, in the Lane County Circuit Court. 2. Negotiate and settle cases prior to trial. Evaluate cases and provide discovery to defendants and their attorneys. Establish settlement policies to protect victims, obtain restitution, and impose appropriate penalties on defendants. 3. Provide legal counsel and opinions to Police personnel concerning criminal matters potentially or actually under Springfield Municipal Court jurisdiction. Advise the Police Department of changes in statutory and case law as they affect Police procedures. 4. Provide advice and information to Springfield citizens regarding criminal law generally and the applicability of City ordinances, with referral to other agencies as appropriate. 5. Provide legal advice to the City Council and City Manager on criminal matters and draft City ordinances. 6. Be responsible for the City Prosecutor's budget, including the preparation of proposals and authorized expenditures within appropriations. 7. Maintain office hours in the Municipal Court/Police Department Building, 344 "A" Street, from 8:30 a.m. to noon, Monday through Friday and when attorney trials are scheduled. Be available for arraignments and other matters on Mopdays and other hours during the week such that satisfactory service is provided to the public, city staff, and others who interact with the City frosecutor. It is understood and agreed that the Independent Contractor will provide approximately 135 hours of professional legal services per month for the City. This estimate is based upon the time expended for the immediate preceding fiscal year. The Independent Contractor will provide monthly time records of the amount oftime expended. In the event the hours expended exceed 135 hours per month there will be no increase in the compensation herein. The Exhibit "A" - Page 1 ATTACHMENT 1 - PAGE 6 compensation will be reviewed annually, and may be adjusted according to time to be expended on the basis of an annual performance evaluation. 8. Employ all secretarial and clerical support necessary to effectively carry out the work of the City Prosecutor's Office. 9. In order to provide the City Prosecutor access to the regional Law Enforcement Data System (LEDS) and maintaill. the system's security and integrity, the City will provide office space in the Police Department for the City Prosecutor and support staff at no charge. Performance Standards 1. Submit quarterly reports which include the following information: Attorney Cases Scheduled in Court . Criminal . Traffic TOTAL Cases Resolved . . Found Guilty . Found Not Guilty . Dismissed . DUn Diversion . Other Diversion . Guilty Plea . Not Guilty Plea . Guilty by Default . Mistrial . Pending Action . No Contest . Warrants Issued . Continuances · Trial Postponed TOTAL Average Number of Days Cases Remain on Docket Documents Prepared . Warrants Issued . WarrantsServed · Warrants Recalled . Complaints . Subpoenas . Show Cause Orders Exhibit "A" - Page 2 ATTACHMENT 1 - PAGE 7 . Motions . Case Discoveries . Affidavits . Cases Reviewed . Cases Accepted . Cases Rejected . Failure to Appear . Pleas Bargained . Pleas Changed . DUll Diversions . Other Diversions The above information should be provided for the existing quarter and provide in a format that compares the existing quarter to previous quarter and the same quarter for the previous year. Conclusions regarding trends and actions which need to be taken regarding trends should be provided in a written narrative. 2. Propose and implement where appropriate cost containment measures with regard to prosecution in the City of Springfield Municipal Court. 3. Maintain professional and harmonious working relationships with the Springfield Police Department, Municipal Court, City Attorney's Office, City Manager's Office, and public. 4. Arrive at meetings and trials on time and respond to all phone calls in a timely fashion, normally within 24 hours or sooner in the case of emergencies. 5. Advise the City Attorney's Office of potential civil liability on the part of the City as it may pertain to the prosecution function. 6. Stay abreast of statutory and case law concerning matters of potential prosecution in the Municipal Court. Advise the Police Department and other city offices as appropriate. 7. Submit a monthly itemized record ofthe time and services proyidedunder this contract. 8. Submit billings under this contract to the City on a monthly basis. / 9. Maintain good standing with the state and local bar associations. 10. Meet with the City Manager or his/her designee quarterly. Exhibit"A" - Page 3 ATTACHMENT 1 - PAGE 8