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Home My WebLink AboutItem 09 Municipal Court Appointed Attorney Services AGENDA ITEM SUMMARY Meeting Date: 12/3/2018 Meeting Type: Regular Meeting Staff Contact/Dept.: Jayne McMahan/ Allison Sederlin Staff Phone No: X 3708/ X 4180 Estimated Time: Consent Calendar S P R I N G F I E L D C I T Y C O U N C I L Council Goals: Provide Financially Responsible and Innovative Government Services ITEM TITLE: MUNICIPAL COURT APPOINTED ATTORNEY SERVICES TO THE CITY OF SPRINGFIELD ACTION REQUESTED: Move to authorize/not authorize the City Manager to negotiate and sign an agreement with McKenzie Defense, a non-profit for Court Appointed Attorney Services for the period from January 1, 2019 to June 30, 2020 with three (3) one (1) year renewals. ISSUE STATEMENT: The City of Springfield currently contracts McKenzie Defense Consortium, LLC for court appointed services. With the substantial increased activity in the Court, contracting with a single provider has lessened the burden on staff. A single provider has resulted in the system becoming administratively efficient for the Court and coordination with the City’s Prosecutor. ATTACHMENTS: Attachment 1: Draft contract with McKenzie Defense, a non-profit. DISCUSSION/ FINANCIAL IMPACT: In September 2018 a Request for Proposals (RFP) was publically issued in accordance with City purchasing administrative regulations. The City received two responses – Rosta & Connelly, P.C. and McKenzie Defense, a non-profit. The RFP proposals submitted were evaluated by the Courts (Supervisor and Management Support Specialist), the Prosecutor’s office, the Presiding Judge and one Pro Tem Judge. The RFP was issued for an estimated case load of over 3,000 new case appointments per year (a 42% increase from 2014 when an RFP was issued for 2,100 cases with an existing backlog of show causes). Criteria for evaluation included cost, qualifications, service delivery, workload management references and proposal completeness. McKenzie Defense, a non-profit, has been selected as the most responsible respondent. The value of the contract is estimated to be $423,000. This includes $405,000 for representation and $18,000 for arraignments (to cover a new process in development between the courts, prosecutors and jail that looks to expedite the judicial process, provides adequate representation, and ensures preservation of rights through the entire court process). A separate attorney for DUII Court representation is not covered in this contract but attorney representation would be included in the overall cases covered by the non-profit. Expenses for indigent representation in FY17 were $361,605 and in FY18 were $425,783. FY19 is projected to be similar to FY18. Having a single supplier providing the services has had a significant effect on soft cost savings which include court staff time and City Prosecutor’s discovery efforts. DRAFTCITY OF SPRINGFIELD INDEPENDENT CONTRACTOR AGREEMENT (Type 3: For Personal Services Contracts Requiring Professional Liability Insurance) Contract #2212 Dated: January 1, 2019 Parties: City of Springfield (“CITY”) A municipal corporation in the State of Oregon 225 Fifth Street Springfield, Oregon 97477 and McKenzie Defense, a non-profit corporation (“Independent Contractor”) Additional Independent Contractor Information: A. Type of Entity: Sole Proprietorship Partners Limited Liability Company Corporation B. Address: 541 Willamette St., Suite 110, Eugene, OR 97401 C. Telephone: 541.484.0264 D. Fax No: 541.484.0529 E. SSN or Fed. I.D. No: 46-5336034 F. Professional License(s) No: See RFP Response G. Oregon Agency Issuing License: Oregon State Bar Association H. Foreign Contractor Yes No (Foreign means not domiciled in or registered to do business in Oregon) See Exhibit B (11). CITY Account Number(s) To Be Charged (Include Percentages): Account Number Percentage 100-04100-7036-611012 22% 236-04100-7036-611012 78% In consideration of the mutual covenants contained herein, the parties agree to the following terms, provisions and conditions: 1. Compensation and Payment by CITY. 1.1. CITY shall pay Independent Contractor in an amount not to exceed $405,000 annually. Independent Contractor will be paid in twelve equal monthly payments of $33,750.00. 1.2. At the end of each fiscal year if the actual caseload is greater than one hundred-six percent (106%) or less than ninety-four percent (94%) of the estimated average annual case load a reimbursement payment will be made by either CITY or Independent Contractor as appropriate. No adjustment will be made within 2820 – 3180 cases. The Independent Contractor shall receive $135.00 per case for those cases that are above the 106% or 3180 and will reimburse the CITY at a rate of $114.00 if the annual case count falls below 2820 cases. C2212 McKenzie Defense Page 1 of 98 AIS ATTACHMENT 1, Page 1 of 98 DRAFT1.3. For any portion of a year these figures will be adjusted according to the % of time. The compensation reimbursement rate will remain the same. 2. Services to be Performed by Independent Contractor. Independent Contractor shall perform the services described in Attachment 1. 3. Invoice. Invoice to be sent to: Accounts Payable - City of Springfield, 225 5th Street, Springfield, OR 97477 or email to ap@springfield-or.gov. Invoice will be paid on net 30 day terms upon City acceptance of goods delivered, work or services performed. The invoice must reference this contract #2212 and approval code #040. 4. Term. This Agreement is effective as of the date first set forth above and shall continue until June 30, 2020, unless earlier terminated in accordance with the provisions of this Agreement or by mutual consent of the parties. The Agreement may be amended annually, to extend the term stated herein, for not more than three (3) successive one-year periods, upon mutual agreement of the parties. In negotiating any extension CITY shall consider the requirements of SMC Section 2.708(3) and each extension shall not be effective until reviewed and approved by the Springfield Common Council. 5. Sourcing. Independent Contractor was selected in response to RFP 1999 Indigent Defense Legal Services issued September 7, 2018. 6. First Point of Contact. Independent Contractor: Douglas Minger, dminger@mckenziedefense.com, PH: 541.484.0264 CITY: Allie Sederlin, asederlin@springfield-or.gov, PH: 541.744.4180 7. Independent Contractor Status. By its execution of this Agreement, Independent Contractor certifies its status as an “Independent Contractor” as that term is used under the laws of the State of Oregon, and that all performance of any labor or services required to be performed by Independent Contractor under the terms of this Agreement shall be performed in accordance with the standards set forth in ORS 670.600, and as more specifically set forth on Exhibit “A” attached hereto and incorporated herein by this reference. 8. Conformance with Oregon Public Contracts Law (ORS Chapter 279). Independent Contractor shall comply with all applicable provisions of Oregon law for public contracts, including, but not limited to ORS 279B.110, ORS 279B.220, ORS 279B.225, ORS 279B.230, and ORS 279B.235, and as more fully set forth on Exhibits “A”, “B” and “C” attached hereto and incorporated herein by this reference. 9. Work Performed. The work to be performed by Independent Contractor includes services generally performed by Independent Contractor in his/her/its usual line of business. 10. Tax duties and Liabilities. Independent Contractor shall be responsible for all federal, state and local taxes, if any, applicable to any payments received pursuant to this Agreement, including but not limited to income tax, payroll tax, social security and self-employment tax. CITY shall not withhold, pay, or in any other manner be responsible for payment of any taxes on behalf of Independent Contractor and as more specifically set forth in Exhibit C. 11. Reimbursement of Expenses. Independent Contractor shall not be entitled to reimbursement by CITY for any expenses incurred by Independent Contractor unless otherwise agreed in writing. 12. Materials and Supplies. Independent Contractor shall supply all materials and supplies needed to perform the services required unless otherwise agreed in writing. C2212 McKenzie Defense Page 2 of 98 AIS ATTACHMENT 1, Page 2 of 98 DRAFT13. No Authority to Bind CITY. Independent Contractor shall have no authority to enter into contracts on behalf of CITY, its officers, agents and employees. This Agreement shall not create a partnership or joint venture of any sort between the parties. 14. Federal Employment Status. In the event payment made pursuant to this Agreement is to be charged against federal funds, Independent Contractor hereby certifies that it is not currently employed by the Federal Government and the amount charged does not exceed Independent Contractor’s normal charge for the type of services provided 15. Indemnification and Hold Harmless. The Independent Contractor shall assume all responsibilities for the work, and bear all losses and damages directly or indirectly resulting to the Independent Contractor, the City, or to others on account of the character or performance of the work, unforeseen difficulties, accidents, or any other cause whatsoever. The Independent Contractor shall assume defense of, indemnify and save harmless the City, its officials, agents, and employees from all claims, liability, loss, damage and injury of every kind, nature and description, directly or indirectly resulting from activities in the performance of the Contract, the ownership, maintenance or use of motor vehicles in connection therewith, or the acts, omissions, operations, or conduct of the Independent Contractor or any Subcontractor under the Contract or any way arising out of the Contract, irrespective of whether any act, omission or conduct of the City connected with the Contract is a condition or contributory cause of the claim, liability loss, damage or injury and irrespective of whether act, omission, or conduct of the Independent Contractor or Subcontractor is merely a condition rather than a cause of a claim, liability, loss damage or injury. The Independent Contractor shall not be liable for nor be required to defend or indemnify, the City relative to claims for damage or damages resulting solely from acts or omissions of the City, its officials, agents or employees. The absence of or inadequacy of the liability insurance required in section 16 below shall not negate Independent Contractor’s obligations in this paragraph. 16. Insurance. 16.1. General Insurance. The Independent Contractor shall maintain in force for the duration of this Agreement a Commercial General Liability insurance policy written on an occurrence basis with limits not less than $2,000,000 per occurrence and $3,000,000 in the aggregate for bodily injury or property damage. The policy will contain a “per project” aggregate endorsement. Automobile Liability (owned, non-owned and hired) insurance with limits not less than $1,000,000 per occurrence shall be maintained. The City, its employees, officials and agents will be named as an Additional Insured where operations are being conducted related to this contract, on the General Liability policy as respects to work or services performed under this Agreement to the extent that the death or bodily injury to persons or damage to property arises out of the fault of the Independent Contractor or the fault of the Independent Contractor’s agents, representatives or subcontractors. This insurance will be primary over any insurance the City may carry on its own. Independent Contractor understands that CITY is a public entity subject to the requirements of the Oregon Governmental Tort Claims Act, ORS 30.260 et seq. In the event that CITY’S financial obligations or liabilities are modified by any amendment to the liability limits imposed by the Oregon Governmental Tort Claims Act, Independent Contractor agrees that the limits regarding liability insurance set forth in this Section 16.1 will be modified to conform to such limits. Independent Contractor and CITY shall sign an amendment to this Agreement incorporating such modification. 16.2. Professional Liability Fund. Independent Contractor shall maintain in force during the duration of this Agreement a professional liability fund policy per attorney with limits no less than $300,000, approved by the City’s Risk Manager as to terms, conditions and limits. 16.3. Workers’ Compensation. Independent Contractor shall provide and maintain workers’ compensation coverage with limits not less than $500,000 for its employees, officers, agents, or partners, as required by applicable workers’ compensation laws as defined in ORS 656.027 and ORS 701.035(5). If Independent Contractor is exempt from coverage, a written statement signed by Independent Contractor so stating the reason for exemption shall be provided to the City. C2212 McKenzie Defense Page 3 of 98 AIS ATTACHMENT 1, Page 3 of 98 DRAFT16.4. Evidence of Insurance Coverage. Evidence of the required insurance coverages issued by an insurance company satisfactory to the City shall be provided to the City by way of a City approved certificate of insurance before any work or services commence. 16.5. Notice of Cancellation or Material Change in Coverage. The certificate of insurance shall contain a requirement that the Insurance company notify the City 30 days prior to any cancellation or material change in coverage. If the approved insurance company will not provide this 30 day notice, the Independent Contractor shall provide written notice to the City contract manager within 2 calendar days after the Independent Contractor becomes aware that their coverage has been canceled or has been materially changed. The Independent Contractor shall either fax 541-726-3782 said notice or email it directly to Jayne McMahan (jmcmahan@springfield-or.gov), Procurement and Contract Manager at the City. Regardless of what circumstances caused Independent Contractors insurance coverage to cease or be modified, it is the Independent Contractor’s responsibility to notify the City. Failure to maintain proper insurance or provide notice of cancellation or modification shall be grounds for immediate termination of this contract.________(Independent Contractor initials) 16.6. Equipment and Material. The Independent Contractor shall be responsible for any loss, damage, or destruction of its own property, equipment, and materials used in conjunction with the work. 16.7. Subcontractors. The Independent Contractor shall require all subcontractors to provide and maintain general liability, auto liability, professional liability (as applicable), and workers’ compensation insurance with coverage’s equivalent to those required of the general contractor in this contract. The Independent Contractor shall require certificates of insurance from all subcontractors as evidence of coverage. 16.8. Exception or Waivers. Any exception or waiver of these requirements shall be subject to review and approval from the City’s Risk Manager. 17. Termination. 17.1. The performance of work under this Agreement may be terminated by CITY, in whole or in part, whenever for any reason CITY shall determine that such termination is in the best interest of 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 Agreement is terminated and the date on which such termination is effective. Upon delivery to the Independent Contractor of a Notice of Termination under this paragraph, the Independent Contractor and CITY shall, by agreement, make an appropriate written modification to this Agreement governing completion of portions of the independent Contractor’s work and payment therefore by CITY. 17.2. Independent Contractor may terminate services with 120 days written Notice of Termination. Any such termination shall be effected by delivery to the CITY of a Notice of Termination specifying the extent to which performance of the work under the Agreement is terminated and the date on which such termination shall be effective. Upon delivery to the CITY of a Notice of Termination under this subsection, the Independent Contractor and CITY shall, by agreement, make an appropriate written modification to this Agreement governing completion of the Independent Contractor’s work and payment therefor by CITY. 17.3. Upon termination of the agreement by either party, the Independent Contractor shall complete timely and adequate legal services on all existing court appointments on cases assigned before the effective date of the termination. The phase-out plan approved by the CITY may include transitioning all active cases to another Independent Contractor under contract with the CITY, or if the Independent Contractor retains existing clients until those cases are closed, compensation shall be made on a case basis at a rate of $135 per case or as agreed upon in a CITY approved phase-out plan at the CITY sole discretion. Under no circumstances will the monthly payment be made to the Independent Contractor after this agreement is terminated. Independent Contractor will be allowed to issue an invoice for the month or prorated partial month for services rendered prior to the date of termination. 17.4. CITY may terminate this contract for cause, for the following reasons: 17.4.1. Contractor’s material breach of this Agreement including material misuse of Agreement funds; C2212 McKenzie Defense Page 4 of 98 AIS ATTACHMENT 1, Page 4 of 98 DRAFT17.4.2. Contractor’s willful or habitual disregard of the procedures required by the courts in which Contractor provides services; 17.4.3. Contractor’s demonstrated continued inability to serve adequately the interest the interest of its clients. 17.4.4. Contractor’s failure to abide by standards of performance and rules of professional conduct; or 17.4.5. Some other cause which has substantially impaired Contractor’s ability to provide adequate legal services under this contract or fulfill the obligation of this Agreement. 18. Rights in Data. All original written material, including programs, card decks, tapes, listings, and other documentation originated and prepared for CITY pursuant to this Agreement, shall become exclusively the property of CITY. The ideas, concepts, know-how, or techniques developed during the course of this Agreement by Independent Contractor personnel can be used by either party in any way it may deem appropriate. Material already in Independent Contractor’s possession, independently developed by Independent Contractor outside the scope of this Agreement, or rightfully obtained by Independent Contractor from third parties, shall belong to Independent Contractor. This agreement shall not preclude Independent Contractor from developing materials which are competitive, irrespective of their similarity to materials which might be delivered to CITY pursuant to this Agreement. Independent Contractor shall not, however, use any written materials developed under this Agreement in developing materials for others, except as provided in this section. 19. Confidentiality. During the course of performance hereunder, Independent Contractor or its agent, employees, or contractors, may receive confidential information. Independent Contractor agrees to use its best efforts to maintain the confidentiality of such information and to inform each agent and employee performing services of the confidentiality obligation that pertains to such information. Regarding the receipt and handling of such information, independent contractor shall comply with the requirements of Exhibit D attached hereto and incorporated herein by this reference. The obligations of Exhibit D shall survive the termination of this Agreement and shall remain in perpetuity. 20. Assignment/Subcontract. Independent Contractor shall not assign, sell, transfer, subcontract or sublet rights, or delegate responsibilities under this Agreement, in whole or in part, without the prior written approval of CITY. No such written approval shall relieve Independent Contractor of any obligations of this Agreement, and any transferee or subcontractor shall be considered the agent of Independent Contractor. Independent Contractor shall remain liable as between the original parties to this Agreement as if no such assignment had occurred. 21. Successors in Interest. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties to this Agreement and their respective successors and assigns. 22. 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 Agreement. Failure to comply with such requirements shall constitute a breach of contract and shall be grounds for termination of this Agreement. Damages or costs resulting from noncompliance shall be the sole responsibility of Independent Contractor. 23. Attorney Fees. In the event a lawsuit of any kind is instituted on behalf of CITY to enforce any provision of this Agreement, Independent Contractor shall pay such additional sums as the Court may adjudge reasonable for attorney fees plus all costs and disbursements at trial and on any appeal. 24. Force Majeure. Neither party to this Agreement shall be held responsible for delay or default caused by fire, riot, acts of God and/or war which is beyond that party’s reasonable control. CITY may terminate this Agreement upon written notice after determining such delay or default will unreasonably prevent successful performance of the Agreement. 25. Assistance Regarding Patent and Copyright Infringement. In the event of any claim or suit against CITY on account of any alleged patent or copyright infringement arising out of the C2212 McKenzie Defense Page 5 of 98 AIS ATTACHMENT 1, Page 5 of 98 DRAFTperformance of this Agreement or out of the use of any material furnished or work or services performed hereunder, Independent Contractor shall defend CITY against any such suit or claim and hold CITY harmless from any and all expenses, court costs, and attorney’s fees in connection with such claim or suit. 26. Severability. If any provision of this Agreement 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 Agreement did not contain the particular provision held to be invalid. 27. Access to Records. CITY and its duly authorized representatives shall have access to books, documents, papers and records of Independent Contractor which are directly pertinent to this Agreement for the purpose of making audit, examination, excerpts and transcripts. 28. Waiver. Failure of CITY to enforce any provision of this Agreement shall not constitute a waiver or relinquishment by CITY of the right to such performance in the future nor of the right to enforce any other provision of this Agreement. 29. Amendments. The terms of this Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever, without prior written approval of CITY, No modification of this Agreement shall bind either party unless reduced to writing and subscribed by both parties, or ordered by a Court. 30. Nondiscrimination. Independent Contractor shall comply with all applicable requirements of Federal and State civil rights and rehabilitation statutes, rules and regulations. 31. Americans with Disabilities Act Compliance. Independent Contractor will comply with all applicable provisions of the Americans with Disabilities Act of 1990, 42 USC Section 12101 et seq. and Section 504 of the Rehabilitation Act of 1973. 32. Dual Payment. 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. 33. Non Appropriation. The obligation of the City to make payments beyond June 30, 2019 is subject to annual appropriation. To the extent that funds are appropriated to make those payments for a given fiscal year, the full faith and credit of the City is pledged to the payments for such fiscal year. The obligation of the City to make those payments is not secured by the unlimited taxing power of the City and is not a general obligation of the City. The City's obligation to make those payments in any year is subject to future appropriation of funds by the City Council for the fiscal year in which the payment is due. In the event that funds are not so appropriated, payments will not be made. The failure to make a payment due to non-appropriation shall not constitute a default under this Agreement. 34. Supporting Documents and Order of Precedence. The following documents are, by this reference, expressly incorporated in the Agreement, and are collectively referred to as the "Supporting Documents": a. The City's Request for Proposals (or other document, however named, which constitutes the City's written request or invitation to submit proposals), together with any documents incorporated by reference therein. b. The City's Letter of Award (or other written document accepting provider's Proposal with any modifications or clarifications). c. The provider's written Proposal (or other written response to the City's invitation, as accepted by the City). The Agreement and the Supporting Documents shall be construed to be mutually complimentary and supplementary wherever possible. In the event of a conflict which cannot be so resolved, the C2212 McKenzie Defense Page 6 of 98 AIS ATTACHMENT 1, Page 6 of 98 DRAFTprovisions of the Agreement itself shall control over any conflicting provisions in any of the Supporting Documents. 35. The Independent Contractor agrees to provide all professional personnel necessary to perform the Statement of Work, including the individuals who were named in the Independent Contractor’s proposal submitted in response to the City’s Request for Proposals. These key personnel shall remain assigned for the duration of the project, unless otherwise agreed to in writing by the public agency. In the event the Independent Contractor proposes to substitute any of the key personnel designated below, the individual(s) proposed must demonstrate similar qualifications and experience as required to successfully perform such duties. The City shall have the sole right to determine whether key personnel proposed as substitutes are qualified to work on the project. The City shall not unreasonably withhold approval of staff changes. 36. Choice of Law, Forum, Construction of Agreement. This Agreement shall be governed and construed in accordance with the laws of the State of Oregon, apart from choice of law provisions. The parties agree that the Circuit Court for the County of Lane, State of Oregon, or the Federal District Court of the State of Oregon (Eugene) is the sole and proper forum for resolving any disputes involving this Agreement, any breach of this Agreement, or relating to its subject matter. The Parties agree to submit themselves to the jurisdiction of such courts without challenge to the jurisdiction of these courts. This Agreement shall not be construed more favorably to CITY due to the preparation of this Agreement by CITY. The headings and subheadings in this Agreement are for convenience, do not form a part of this Agreement, and shall not be used in construing this Agreement. 37. Entire Agreement. This Agreement signed by both parties is the parties’ final and entire Agreement and supersedes all prior and contemporaneous oral or written communications between the parties, their agents and representatives. There are no representations, promises, terms, conditions or obligations other than those contained herein. IN WITNESS WHEREOF the parties have executed this Agreement to be effective the date first set forth above. CITY OF SPRINGFIELD: INDEPENDENT CONTRACTOR By: By: Name: Name: Title: Title: Date: Date: C2212 McKenzie Defense Page 7 of 98 AIS ATTACHMENT 1, Page 7 of 98 DRAFTEXHIBIT “A” INDEPENDENT CONTRACTOR STATUS Independent contractor states and represents that contractor is an independent contractor as that term is defined in Oregon Revised Statute 670.600 and more specifically represents, states and agrees that in providing the services and scope of work specified in this contract: 1. Independent contractor provides services for remuneration; and 2. Independent contractor is free from direction and control over the means and manner of providing the services and scope of work subject only to the right of City to specify the desired results; and 3. Independent contractor is customarily engaged in an independently established business; and 4. Independent contractor is licensed within the state of Oregon to provide any services for which a license is required under ORS Chapter 671 or 701 and is responsible for obtaining other licenses or certificates necessary to provide the service or scope of work; and 5. Independent contractor complies with at least three of the following requirements: (a) A business location is maintained that is separate from the business or work location of City; or is in a portion of the independent contractor’s residence and that portion is used primarily for the business. (b) The independent contractor bears the risk of loss related to the provision of services or scope of work such as entering into a fixed price contract, defective work is required to be corrected, the services provided are warranted or indemnification agreements, liability insurance and performance bonds and errors and omissions insurance are provided. (c) Contracted services for two or more different persons or entities within a twelve month period have been obtained, or routinely engaged in business advertising, solicitation, or other marketing efforts reasonably calculated to obtain new contracts to provide similar services. (d) Significant investment in the business has been made such as purchasing tools or equipment, paying for premises or facilities where services are provided, paying for licenses, certificates or specialized training. (e) Possesses authority to hire other persons to assist in providing their services and has the authority to fire those persons. 6. Independent contractor will immediately inform City in the event that it fails to conduct its services in one or more particulars as represented in 1 through 5 above. C2212 McKenzie Defense Page 8 of 98 AIS ATTACHMENT 1, Page 8 of 98 DRAFTEXHIBIT “B” City of Springfield Public Contracts Conformance with Oregon Public Contractors Laws Pursuant to Oregon law, every public contract shall contain the following conditions: 1) Make payment promptly, as due, to all persons supplying to the contractor labor or material for the performance of the work provided for in the contract. ORS 279B.220(1) 2) Pay all contributions or amounts due the Industrial Accident Fund from the contractor or subcontractor incurred in the performance of the contract. ORS 279B.220(2). 3) Not permit any lien or claim to be filed or prosecuted against the state or a county, school district, municipality, municipal corporation or subdivision thereof, on account of any labor or material furnished. ORS 279B.220(3). 4) Pay to the Department of Revenue all sums withheld from employees under ORS 316.167. ORS 279B.220(4). 5) If the agreement is for lawn and landscape maintenance, it shall contain a condition requiring the contractor to salvage, recycle, compost or mulch yard waste material at an approved site, if feasible and cost-effective. ORS 279B.225. 6) Promptly, as due, make payment to any person, copartnership, association or corporation furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury, to the employees of the contractor, of all sums that the contractor agrees to pay for the services and all moneys and sums that the contractor collected or deducted from the wages of employees under any law, contract or agreement for the purpose of providing or paying for the services. All employers shall comply with ORS 656.017. ORS 279B.230. 7) A person may not be employed for more than 10 hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency or when the public policy absolutely requires it, and in such cases, except in cases of contracts for personal services designated under ORS 279A.055, the employee shall be paid at least time and a half pay: a) For all overtime in excess of eight hours a day or 40 hours in any one week when the work week is five consecutive days; or b) For all overtime in excess of 10 hours in any one day or 40 hours in any one week when the work week is four consecutive days, Monday through Friday; and c) For all work performed on Saturday and on any legal holiday specified in ORS 279B.020. An employer must give notice in writing to employees who work on a public contract, either at the time of hire or before commencement of work on the contract, or by posting a notice in a location frequented by employees, of the number of hours per day and days per week that the employees may be required to work. ORS 279B.235(1)-(2). 8) If the agreement is for personal services, the contract shall contain a provision that the employee shall be paid at least time and a half for all overtime worked in excess of 40 hours in any one week, except for individuals under personal services contracts who are excluded under ORS 653.010 to 653.261 or under 29 U.S.C. 201-209 from receiving overtime. ORS 279B.235(3). 9) Contracts for services must contain a provision that requires that persons employed under contracts shall receive at least time and half pay for work performed on the legal holidays specified in a collective bargaining agreement or in ORS 279B.020(1)(b)(B)-(G) and for all time worked in excess of 10 hours in any one day or in excess of 40 hours in any one week, whichever is greater. Employer shall give notice in writing to employees who work on a contract for services, either at the time of hire or before commencement of work on the contract, or by posting a notice in a location frequented by employees, of the number hours per day and days per week that the employees may be required to work. ORS 279B.235(5). If this agreement is for a public improvement, the contract shall contain the following conditions: 10) Make payment promptly, as due, to all persons supplying to the contractor labor or material for the performance of the work provided for in the contract. ORS 279C.505(1)(a). 11) Pay all contributions or amounts due the Industrial Accident Fund from the contractor or subcontractor incurred in the performance of the contract. ORS 279C.505(1)(b). 12) Not permit any lien or claim to be filed or prosecuted against the state or a county, school district, municipality, municipal corporation or subdivision thereof, on account of any labor or material furnished. ORS 279C.505(1)(c). 13) Pay to the Department of Revenue all sums withheld from employees under ORS 316.167. ORS 279C.505(1)(d). 14) The contractor shall demonstrate that an employee drug testing program is in place. ORS 279C.505(2). C2212 McKenzie Defense Page 9 of 98 AIS ATTACHMENT 1, Page 9 of 98 DRAFT15) If the contractor fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to the contractor or subcontractor by any person in connection with the public improvement contract as the claim becomes due, the proper officer or officers representing the state or a county, school district, municipality, municipal corporation or subdivision thereof, as the case may be, may pay such claim to the person furnishing labor or services and charge the amount of the payment against the funds due or to become due the contract by reason of the contract. If the contractor or first-tier subcontractor fails, neglects or refuses to make payment to a person furnishing labor or materials in connection with the public improvement contract within 30 days after receipt of payment from the contracting agency or a contractor, the contractor or first-tier subcontractor shall owe the person the amount due plus interest charges commencing at the end of the 10-day period that payment is due under ORS 279C.580(4) and is subject to a good faith dispute as defined in ORS 279C.580. If the contractor or a subcontractor fails, neglects or refuses to make payment to a person furnishing labor or materials in connection with the public improvement contract, the person may file a complaint with the Construction Contractors Board, unless payment is subject to a good faith dispute as defined in ORS 279C.580. ORS 279C.515. 16) The payment of a claim does not relieve the contractor or the contractor’s surety from obligation with respect to any unpaid claims. ORS 279C.515(4). 17) A person may not be employed for more than 10 hours in any one day, or 40 hours in any one week, except in cases of necessity, emergency or when the public policy absolutely requires it, and in such cases, except in cases of contracts for personal services designated under ORS 279C.100, the employee shall be paid at least time and a half pay: a) For all overtime in excess of eight hours a day or 40 hours in any one week when the work week is five consecutive days; or, b) For all overtime in excess of 10 hours in anyone day or 40 hours in any one week when the work week is four consecutive days, Monday through Friday; and, c) For all work performed on Saturday and on any legal holiday specified in ORS 279B.020. ORS 279C.520(1). An employer shall give notice in writing to employees who work on a public contract either at the time of hire or before commencement of work on the contract, or by posting a notice in a location frequented by employees, of the number of hours per day and days per week that the employees may be required to work. ORS 279B.520(2). 18) If the agreement is for personal services, the contract shall contain a provision that the employee shall be paid at least time and a half for all overtime worked in excess of 40 hours in any one week, except for individuals under personal services contracts who are excluded under ORS 653.010 to 653.261 or under 29 U.S.C. 201-209 from receiving overtime. ORS 279C.520(3). 19) Contracts for services must contain a provision that requires that persons employed under contracts shall receive at least time and half pay for work performed on the legal holidays specified in a collective bargaining agreement or in ORS 279C.540(1)(b)(B)-(G) and for all time worked in excess of 10 hours in any one day or in excess of 40 hours in any one week, whichever is greater. An employer shall give notice in writing to employees who work on a contract for services, either at the time of hire or before commencement of work on the contract, or by posting a notice in a location frequented by employees, of the number of hours per day and days per week that the employees may be required to work. ORS 279C.520(5) 20) ENVIRONMENTAL MATTERS: In compliance with ORS 279C.525, the Contractor is made aware that the following federal, state, and local agencies have enacted ordinances or regulations relating to the prevention of environmental pollution or the preservation of natural resources which may affect performance of SUB contracts. This is not intended to be a complete listing of agencies. Other agencies may have enacted ordinances or regulations that may apply. If the Contractor is delayed or must undertake additional work by reason of existing ordinances, rules or regulations of agencies not cited in the Contract or due to enactment of new or the amendment of existing statutes, ordinances, rules or regulations relating to the prevention of natural resources occurring after the submission of the successful quote, the contracting agency may, at its discretion, terminate the Contract, complete the work itself; use non-agency forces already under contract with the City, require that the underlying property owner be responsible for cleanup, solicit quotes for a new contractor to provide the necessary services or issue the Contractor a change order setting forth the additional work that must be undertaken. If the Contractor encounters a condition not referred to in the Invitation to Bid documents, not caused by the Contractor or any subcontractor employed on the project and not discoverable pre-bid visual site inspection, and the condition requires compliance with the ordinances, rules or regulations referred to under this regulation, the contractor shall immediately notify SUB of the condition. FEDERAL AGENCIES Department of Agriculture Fish and Wildlife Services Forest Service Office of Surface Mining Soil Conservation Service Reclamation and Enforcement Department of the Army Corps of Engineers Bureau of Reclamation Coast Guard Department of Labor Department of Health and Human Services Occupational Safety and Health Administration Department of the Interior Mine Safety and Health Administration Bureau of Indian Affairs Department of Transportation Bureau of Land Management Federal Highway Administration Bureau of Outdoor Recreation Environmental Protection Agency Department of Commerce STATE AGENCIES Department of Agriculture Department of Human Services Department of Energy Land Conservation and Development Commission Department of Environmental Quality Division of State Lands C2212 McKenzie Defense Page 10 of 98 AIS ATTACHMENT 1, Page 10 of 98 DRAFT Department of Fish and Wildlife State Soil and Water Conservation Commission Department of Forestry Water Resources Department Department of Geology and Minerals Oregon Department of Transportation LOCAL AGENCIES Common Council, City of Springfield Planning Commission, City of Springfield Environmental Services, City of Springfield Development Services Department, City of Springfield Board of Commissioners, Lane County Planning Commission, Lane County Lane Regional Air Protection Agency Springfield Utility Board Willamalane Park & Recreation District Springfield Downtown & Glenwood Urban Renewal Districts Rainbow Water District 21) Promptly, as due, make payment to any person, copartnership, association or corporation furnishing medical, surgical and hospital care services or other needed care and attention, incident to sickness or injury, to the employees of the contractor, of all sums that the contractor agrees to pay for the services and all moneys and sums that the contractor collected or deducted from the wages of employees under any law, contract or agreement for the purpose of providing or paying for the services. All employers shall comply with ORS 656.017. ORS 279C.530. 22) A contract for public works shall contain a provision stating the existing state prevailing rate and wage and, if applicable, the federal prevailing rate of wage required. Every contract and subcontract shall contain a provision that workers shall be paid not less than the specified minimum hourly rate of wage in accordance with ORS 279C.838. ORS 279C.830(1). If this agreement is for demolition, the contract shall also contain the following conditions: 23) Contractor must salvage or recycle construction and demolition debris, if feasible and cost-effective. ORS 279C.510(1) C2212 McKenzie Defense Page 11 of 98 AIS ATTACHMENT 1, Page 11 of 98 DRAFTEXHIBIT C OREGON TAX LAWS COMPLIANCE AND CERTIFICATION A. Independent Contractor's Compliance with Tax Laws. 1. Independent Contractor must, throughout the duration of this Contract and any extensions, comply with all tax laws of this state and all applicable tax laws of any political subdivision of this state. For the purposes of this Section, 'tax laws" includes all the provisions described in Subsection B. 3. (i) through (iv) of this Contract. 2. Any violation of Subsection 1 of this Section A shall constitute a material breach of this Contract. Further, any violation of Independent Contractor's warranty, in Subsection B.3. of this Contract, that Independent Contractor has complied with the tax laws of this state and the applicable tax laws of any political subdivision of this state also shall constitute a material breach of this Contract. Any violation shall entitle City to terminate this Contract, to pursue and recover any and all damages that arise from the breach and the termination of this Contract, and to pursue any or all of the remedies available under this Contract, at law, or in equity, including but not limited to: a. Termination of this Contract, in whole or in part; b. Exercise of the right of setoff, and withholding of amounts otherwise due and owing to Independent Contractor, in an amount equal to State's setoff right, without penalty; and c. Initiation of an action or proceeding for damages, specific performance, declaratory or injunctive relief. City shall be entitled to recover any and all damages suffered as the result of Independent Contractor's breach of this Contract, including but not limited to direct, indirect, incidental and consequential damages, costs of cure, and costs incurred in securing [replacement Services/replacement Goods/ a replacement Independent Contractor]. These remedies are cumulative to the extent the remedies are not inconsistent, and City may pursue any remedy or remedies singly, collectively, successively, or in any order whatsoever. B. Independent Contractor's Representations and Warranties. Independent Contractor represents and warrants to City that: 1. Independent Contractor (to the best of Independent Contractor's knowledge, after due inquiry), for a period of no fewer than six calendar years preceding the [date of Closing of {bids/proposals}for/effective date of] this Contract, faithfully has complied with: (i) All tax laws of this state, including but not limited to ORS 305.620 and ORS chapters 316, 317, and 318; (ii) Any tax provisions imposed by a political subdivision of this state that applied to Independent Contractor, to Independent Contractor's property, operations, receipts, or income, or to Independent Contractor's performance of or compensation for any work performed by Independent Contractor; (iii) Any tax provisions imposed by a political subdivision of this state that applied to Independent Contractor, or to goods, services, or property, whether tangible or intangible, provided by Independent Contractor; and (iv) Any rules, regulations, charter provisions, or ordinances that implemented or enforced any of the foregoing tax laws or provisions. Any [Goods/Items/Equipment/Components/Hardware/Software/Intellectual Property Rights, etc.] [delivered to/granted to] City under this Contract, and Independent Contractor's Services rendered in the performance of Independent Contractor's obligations under this Contract, shall be provided to City free and clear of any and all restrictions on or conditions of use, transfer, modification, or assignment, and shall be free and clear of any and all liens, claims, mortgages, security interests, liabilities, charges, and encumbrances of any kind. C2212 McKenzie Defense Page 12 of 98 AIS ATTACHMENT 1, Page 12 of 98 DRAFTEXHIBIT D City of Springfield Business Associate Agreement Between - City of Springfield and INDEPENDENT CONTRACTOR This Business Associate Agreement (“Agreement”) between City of Springfield (Springfield) and INDEPENDENT CONTRACTOR is executed to ensure that INDEPENDENT CONTRACTOR will appropriately safeguard protected health information (“PHI”) that is created, received, maintained, or transmitted on behalf of Springfield in compliance with the applicable provisions of Public Law 104-191 of August 21, 1996, known as the Health Insurance Portability and Accountability Act of 1996, Subtitle F – Administrative Simplification, Sections 261, et seq., as amended ("HIPAA"), and with Public Law 111-5 of February 17, 2009, known as the American Recovery and Reinvestment Act of 2009, Title XII, Subtitle D – Privacy, Sections 13400, et seq., the Health Information Technology and Clinical Health Act, as amended (the “HITECH Act”). A. General Provisions 1. Meaning of Terms. The terms used in this Agreement shall have the same meaning as those terms defined in HIPAA. 2. Regulatory References. Any reference in this Agreement to a regulatory section means the section currently in effect or as amended. 3. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with HIPAA. B. Obligations of Business Associate INDEPENDENT CONTRACTOR agrees that it will: 1. Not use or further disclose PHI other than as permitted or required by this Agreement or as required by law; 2. Use appropriate safeguards and comply, where applicable, with Subpart C of 45 CFR Part 164 to prevent use or disclosure of PHI other than as provided for by this Agreement; 3. Report to Springfield any use or disclosure of PHI not provided for by this Agreement of which it becomes aware, including any security incident (as defined in 45 CFR 164.304) and any breaches of unsecured PHI as required by 45 CFR §164.410. Breaches of unsecured PHI shall be reported to Springfield without unreasonable delay but in no case later than 60 days after discovery of the breach; 4. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of INDEPENDENT CONTRACTOR agree to the same restrictions, conditions, and requirements that apply to INDEPENDENT CONTRACTOR with respect to such information; 5. Make available PHI in a designated record set to Springfield as necessary to satisfy Springfield’s obligation under 45 CFR 164.524 in no more than 30 days of a request; 6. Make any amendment(s) to PHI in a designated record set as directed by Springfield, or take other measures necessary to satisfy Springfield’s obligations under 45 CFR §164.526 in no more than 30 days of a request; C2212 McKenzie Defense Page 13 of 98 AIS ATTACHMENT 1, Page 13 of 98 DRAFT 7. Maintain and make available information required to provide an accounting of disclosures to Springfield or an individual who has a right to an accounting within 60 days and as necessary to satisfy Springfield’s obligations under 45 CFR §164.528; 8. To the extent that INDEPENDENT CONTRACTOR is to carry out any of Springfield’s obligations under Subpart E of 45 CFR Part 164, INDEPENDENT CONTRACTOR shall comply with the requirements of Subpart E of 45 CFR Part 164 that apply to Springfield when it carries out that obligation; 9. Make its internal practices, books, and records available to the Secretary of the Department of Health and Human Services for purposes of determining compliance with the HIPAA rules; 10. Springfield shall notify INDEPENDENT CONTRACTOR of any restriction on the use or disclosure of PHI that Springfield has agreed to or is required to abide by under 45 CFR 164.522, to the extent that such restriction may affect INDEPENDENT CONTRACTOR’s use or disclosure of PHI; and 11. If Springfield is subject to the Red Flags Rule (found at 16 CFR §681.1 et seq.), INDEPENDENT CONTRACTOR agrees to assist Springfield in complying with its Red Flags Rule obligations by: (a) implementing policies and procedures to detect relevant Red Flags (as defined under 16 C.F.R. §681.2); (b) taking all steps necessary to comply with the policies and procedures of Springfield’s Identity Theft Prevention Program; (c) ensuring that any agent or third party who performs services on its behalf in connection with covered accounts of Springfield agrees to implement reasonable policies and procedures designed to detect, prevent, and mitigate the risk of identity theft; and (d) alerting Springfield of any red flag incident (as defined by the Red Flag Rules) of which it becomes aware, the steps it has taken to mitigate any potential harm that may have occurred, and provide a report to Springfield of any threat of identity theft as a result of the incident. 12. If INDEPENDENT CONTRACTOR is part of a larger organization, INDEPENDENT CONTRACTOR will implement policies and procedures to protect PHI from unauthorized access by the larger organization. C. Permitted Uses and Disclosures by Business Associate The specific uses and disclosures of PHI that may be made by INDEPENDENT CONTRACTOR on behalf of Springfield are limited to: 1. The review of patient care information in the course of INDEPENDENT CONTRACTOR conducting risk and compliance assessment activities, or providing Springfield with a Control Activity Gap Analysis, or the review of PHI and other information necessary to assist Springfield in developing its HIPAA compliance program; and 2. Other uses or disclosures of PHI as permitted by the HIPAA rules as necessary to perform the services set forth in the Service Agreement. 3. Uses or disclosers of protected health information as required by law D. Termination 1. Springfield may terminate this Agreement if Springfield determines that INDEPENDENT CONTRACTOR has violated a material term of the Agreement. 2. If either party knows of a pattern of activity or practice of the other party that constitutes a material breach or violation of the other party’s obligations under this Agreement, that party shall take C2212 McKenzie Defense Page 14 of 98 AIS ATTACHMENT 1, Page 14 of 98 DRAFTreasonable steps to cure the breach or end the violation, as applicable, and, if such steps are unsuccessful, terminate the Agreement, if feasible. 3. Upon termination of this Agreement for any reason, INDEPENDENT CONTRACTOR shall return to Springfield or destroy all PHI received from Springfield, or created, maintained, or received by INDEPENDENT CONTRACTOR on behalf of Springfield that INDEPENDENT CONTRACTOR still maintains in any form. INDEPENDENT CONTRACTOR shall retain no copies of the PHI. If return or destruction is infeasible, the protections of this Agreement will extend to such PHI. 4. The obligations under Section D are perpetual and shall survive termination of this agreement. C2212 McKenzie Defense Page 15 of 98 AIS ATTACHMENT 1, Page 15 of 98 DRAFT ATTACHMENT 1 STATEMENT OF WORK The City of Springfield provides legal services to persons determined by the Springfield Municipal Court to be indigent and entitled to court-appointed counsel. The basic services required are legal representation and administrative support services necessary to provide effective, efficient legal representation that meets established professional standards of practice. The term of the non-exclusive contract will be for 18 months with three (3) possible one (1) year renewals upon agreement of both parties which includes the review and approval of the Springfield Common Council in consideration of the requirements of the Springfield Municipal Code Section 2.708(3). 1. INTRODUCTION The Springfield Municipal Court has jurisdiction over misdemeanors, violations and civil infraction matters that occur within the City of Springfield. Persons charged with a misdemeanor are entitled to legal representation regardless of their ability to pay. Attorneys represent clients from the date of appointment at arraignment, through trial or other resolution of the case, including but not limited to plea agreement and sentencing, post-sentence restitution hearing, probation review within thirty (30) days of sentence, dismissal, or deferred prosecution. If a criminal case proceeds to trial and results in a conviction, the attorney is responsible for preparing and filing a Notice of Appeal. If a case is resolved pursuant to a DUII diversion agreement, the attorney may withdraw from the case at the time the agreement is filed with the court. If a client enters a specialty court, the attorney may withdraw after a client has been accepted into the specialty court and after notice of substitution of counsel has been filed naming the defense attorney assigned to the specialty court as the new attorney of record. If a client fails to appear for a court proceeding and the court issues a bench warrant for the arrest of the client, the attorney shall remain the attorney of record for a period of four (4) months from the date of the appointment unless the client is brought before the Court in that time and a new appearance date set, in which case the attorney shall remain the attorney of record until disposition of the case, unless the client fails to appear again at that time and such time is later than four (4) months from the date of the appointment. After that time, the attorney is withdrawn from the case. Attorneys shall remain appointed on non-DUII Diversion or Deferred Prosecution Agreements until acceptance by the court of a defendant’s entry of a plea and submission of a duly-executed Diversion Agreement, or withdrawal; in all other cases, new appointments are made for show cause probation violation proceedings. Reappointments are made upon judicial approval. Attorneys are expected to participate in meetings and discussions around continued process improvement, court efficiencies, and new potential programs. The citizens of Springfield place a high priority on public safety and have approved bond measures to build and tax levies to operate a municipal jail. 2. SCOPE OF WORK The Independent Contractor(s) shall provide effective and efficient legal representations for court-appointed indigent clients at Springfield Municipal Court at all stages of a case assigned under the contract. Independent Contractor may limit the proposal to regular court dockets, one or both specialty court dockets, or bid on all dockets. (a) DUTIES Independent Contractor will provide the following services: Attend regularly scheduled in-custody arraignments to include initial contact with client; Establish and follow procedures to ensure prompt notification to the court of the specific attorney assigned to each case; Meet with in-custody clients within 24 hours of appointment by the Court (excluding weekends and holidays); for clients who are out of custody, within 72 hours of appointment (excluding weekends and holidays). “Initial contact letter” is not a substitute for meeting in-person with in custody clients. Inmates held at Lane County Adult Corrections are not transported to the Springfield Municipal Jail for initial meetings; Adequately staff and attend all court sessions on appointed matters; provide coverage for courtroom appearances during vacation or leave of absence of the assigned attorney; C2212 McKenzie Defense Page 16 of 98 AIS ATTACHMENT 1, Page 16 of 98 DRAFT Investigate cases, propose resolutions, represent clients in bench and jury trials, file and argue legal motions, draft appropriate legal memoranda, negotiate and litigate show cause hearings, and represent clients at sentencing hearings and contempt of court hearings on all misdemeanors for indigent clients; Employ adequate administrative staffing to ensure attorney assignments are completed within the required timelines; Participate regularly in meetings with City Administration, Court staff, and the City Prosecutor’s Office to discuss process and procedural topics including but not limited to case flow and case management, as well as other recurring meetings as required by the court; Respond in a timely manner to all telephone calls from clients, as well as to the City Prosecutor and Court staff; Maintain contact with clients and keep them informed until the case is terminated. Advise clients that regular and continuous contact is necessary to the preparation of the defense, and employ reasonable means to secure and maintain such contact including, but not limited to, notifying clients in advance of the date, time and location of all critical stages in the process of the client’s particular case with enough advanced notice that the client has time to prepare for each stage; Implement a method to respond promptly to client complaints. The Court will first direct clients to the attorney, firm or agency which provided representation. If the client feels that he or she has not received an adequate response, the City of Springfield may designate a person or agency to evaluate the legitimacy of complaints and to follow up on meritorious ones; Comply with all federal and state laws regarding access to Independent Contractor’s facilities, including elimination of barriers which limit access for the disabled. 3. COMPENSATION Independent Contractor will receive a flat amount annually based on a 3000 caseload for providing services as set forth in the Attachment 1 - Scope of Work. Equal monthly payments will be made for the prior month’s work. Information to be included in the invoice will be the total amount of cases dispositioned in the previous month and is subject to Municipal Court approval. Invoice must be submitted no later than the 15th of the month. At the end of each year if the actual caseload is greater than one hundred six percent (106%) or less than ninety-four percent (94%) of the estimated average annual case load, a reimbursement payment will be made by either City or Independent Contractor. Any reimbursement or repayment will be based upon the number of cases over 106% or under 94% of the estimated caseload. No adjustment will be made within 2820 – 3180 cases. The Independent Contractor shall receive $135.00 per case for those cases that are above the 106% or 3180 annual cases. 4. GENERAL INFORMATION a) The Springfield Municipal Court must approve and assign court-appointed counsel for indigent clients. b) All court-appointed attorneys must meet the minimum attorney qualification standards for the types of cases processed at Springfield Municipal Court, as specified in the State of Oregon Office of Public Defense Services Best Practices for Oregon Public Defense Providers. c) Independent Contractor should strive to meet the State of Oregon Office of Public Defense Services Best Practices for Oregon Public Defense Providers; specifically section III- Quality Assurance, and section IV- Case Assignment. d) Court-appointed attorneys must maintain meaningful attorney/client relationships in accordance with the Oregon Rules of Professional Conduct. e) Appointment to a case shall terminate as set forth in Section 1 above. . f) Independent contractor should not exceed the maximum caseload standard set forth by the Oregon State Bar Board of Governors, which is currently 400 misdemeanor cases per year per attorney. (OSB Performance Standard 5: Maximum Caseload Standards for Defense Counsel). Independent Contractor will keep track of the number of cases each attorney is assigned. g) Court-appointed attorneys are responsible for all reasonable and necessary administrative expenses that are ordinary and related to routine case investigation, preparation and trial. Expenses include, but are not limited to: copies, phone and postage, and mileage. h) All extraordinary case expenses are subject to judicial approval prior to expenditure of funds for case expenses. Extraordinary case expenses must be preauthorized by the presiding judge in accordance with ORS 135.055(3). Extraordinary case expenses may include expert witnesses, psychiatric exams, and extraordinary investigation requiring an investigator’s services. Psychiatric examinations for fitness to proceed will be conducted upon judicial approval and will be conducted by psychologists and/or psychiatrists currently C2212 McKenzie Defense Page 17 of 98 AIS ATTACHMENT 1, Page 17 of 98 DRAFT approved by the Springfield Municipal Court. For Court appearances, language interpreter services are scheduled by the Court. i) Court-appointed counsel shall finalize trial settlement negotiations and report cases that are ready for trial no later than 21 days prior to the scheduled trial date pursuant to court practice. Springfield Municipal Court requires court-appointed counsel to appear promptly and fully prepared for all court sessions. (Refer to Attachment 3, Master Court Schedule). j) Springfield Municipal Court requires all court-appointed counsel and staff to establish and maintain professional working relationships with Springfield Municipal Court judges and staff; City of Springfield prosecutors and staff; Springfield Municipal Jail staff; Springfield Police Department staff; Lane county Jail staff; and Springfield Finance Department staff. Failure to do so will result in corrective action, which could include loss of court room privileges. This will be determined at the sole discretion of the presiding judge. k) Independent Contractor shall maintain statistical data pertaining to caseload and client appointments. Data shall be reported to Springfield Municipal Court monthly along with a month-end invoice. l) Springfield Municipal Court requires the Independent Contractor to have equipment and information systems to provide effective and efficient legal services. m) Springfield Municipal Court will provide use of the two conference rooms located in the Courtroom for consultations between attorneys and their clients between the hours of 8:00 am to 4:00 pm Monday through Friday (excluding holidays); no client in custody will be permitted to use the conference rooms; meetings for clients in custody must be held in the respective custodial facility. Springfield Municipal Court does not allow unescorted access to restricted areas. n) Independent Contractor will be responsible for any subcontracting due to workload issues or conflict of interest cases.. If a case filed has more than one client, Independent Contractor will be responsible for contracting with a conflict attorney. o) Independent Contractor shall maintain telephone voicemail and email inboxes such that they are able to accept new voicemail and email messages at all times. Independent Contractor shall have a policy for responding to all client contacts and complaints (including jail kites), including the length of time within which a response must occur. p) Independent Contractor shall maintain a written Code of Conduct approved by the Court that all attorneys and administrative staff are to review and sign. The Code of Conduct template produced by the Independent Contractor will be provided to the city within sic (6) weeks of contract execution. q) Independent Contractor shall maintain office hours from 8:00AM until 4:30PM. 5. REQUIREMENTS a) Minimum qualifications for attorneys: i. Attorneys 1. Must have a minimum of one (1) years’ experience with misdemeanor cases, including jury trial experience; 2. Must be licensed to practice law in Oregon: a. Must be in good standing with Oregon State Bar (Provide Bar Number) b. No outstanding complaints for lack of diligence, communication or ethical violations. ii. Independent Contractor will provide an ADA compliant facility to provide effective and efficient legal services for attorneys, staff and clients, or make reasonable accommodations. iii. Independent Contractor must maintain Professional Liability Fund coverage minimum of $300,000 per attorney. b) Attorneys must sign and uphold the Independent Contractor’s written Code of Conduct c) Independent Contractor shall have a corrective action plan in place as a means of addressing performance concerns that do not meet the expectations of the City. 6. DEFINITIONS a) Appointment. The word “appointment” is defined to include the Court’s original designation of Independent Contractor, as the attorney for a Client with respect to a case as well as the legal engagement under which Independent Contractor represents the legal interests of the client arising from a case. Independent Contractor’s appointment shall be effective upon assignment by the Court and shall terminate when a case has reached disposition or when a motion to withdraw has been granted. If a client fails to appear for a court proceeding and the court issues a bench warrant for the arrest of the client, the attorney shall remain the attorney of record for a period of six (6) months following the issuance of the bench warrant. There may be multiple appointments on a single case. Appointments are further subject to termination by the Court if the C2212 McKenzie Defense Page 18 of 98 AIS ATTACHMENT 1, Page 18 of 98 DRAFT defendant no longer qualifies as indigent. It is the responsibility of the Independent Contractor to track the time period following a client’s failure to appear. b) Assignment. The word “assignment” is defined as the Independent Contractor’s designation of a specific attorney, and the attorney’s acceptance of such designation, as the attorney for a client with respect to a case. c) Case (or Police Case). A “case” shall include all charges for one defendant arising from a single incident, the allegations of which resulted in Independent Contractor’s appointment, notwithstanding multiple docket numbers. Show cause appearances are a separate case. d) Case Expenses. The term “case expenses” means and includes all out-of-pocket expenses incurred by Independent Contractor for discovery, expert witnesses, psychiatric exams, private investigators and similar services that are reasonably necessary to advance the defense of a client in a case. e) Caseload. The term “caseload” means the amount of work assigned to Independent Contractor and each attorney. With respect to any period of time, the caseload for such period of time shall be equal to the number of cases appointed and pending during that period, to exclude inactive cases such as those out on warrant or on diversion. An attorney will not exceed an annual caseload level of 400 misdemeanors, including appointed cases and retained cases. The Contractor will report the full caseload monthly, by attorney. f) Client. The word “client” means any person who has been appointed to Independent Contractor for legal assistance, until such time as the appointment terminates. The relationship between a client and Independent Contractor is that of client and attorney, in which the City shall have no private knowledge or concern. g) Disposition. The word “disposition” means the sentencing or other final settlement of a criminal case, however for purposes of determining the duration of attorney representation in a Deferred Prosecution case, said representation shall be deemed concluded upon acceptance by the Court of a defendant’s entry of a plea and submission of a duly-executed Diversion Agreement. C2212 McKenzie Defense Page 19 of 98 AIS ATTACHMENT 1, Page 19 of 98 DRAFTFrom:MCMAHAN Jayne To:"Douglas Minger"; Frank Segarra Subject:RE: RFP #1999 Date:Tuesday, November 20, 2018 9:21:37 AM Hi Doug and Frank, Thank you for your time yesterday. Regarding your Proposed Amended Terms and Scope of Work below is the following that we all agreed to: 1. A. RFP#1999 Section 5(a) – We agree to the 106% and Less than 94% but the with change that we will at the contract average of $135 per case rate for the over 106%. 2. B. Attachment 1, Section I(a) – the city agrees with your proposed amendment 3. C. Attachment 1 Section 1(a) and Section 6(f)- the city agrees with your proposed amendment 4. D. Attachment 3 Section 3, Section 17- city accepts the proposed amendment to 17.1.1 and 17.1.2. However, 17.2 is revised that the per cast rate will be $135. (These provisions will be renumbered in the contract itself. I am using the numbering convention for this email to align with your proposal.) I believe this covers the changes we discussed. I will be creating the contract and sending that over shortly. If you have any questions please don’t hesitate to ask. Thank you, Jayne To request other formats, please contact me at: Voice: 541.726.3708 / Relay: 711 Email: jmcmahan@springfield-or.gov From: Douglas Minger [mailto:dminger@mckenziedefense.com] Sent: Thursday, November 01, 2018 12:42 PMTo: MCMAHAN JayneCc: Frank SegarraSubject: RFP #1999 Jayne ATTACHMENT 2 McKenzie Defense Proposal C2212 McKenzie Defense Page 20 of 98 AIS ATTACHMENT 1, Page 20 of 98 DRAFT I've attached MD's proposal for modification of terms in Word per your request in our meeting this morning. Please note that while Item C relates to the non-DUII diversionprovision I brought up in our discussion, it does not touch on the conflict issue I raised during the meeting, which was only realized after drafting the proposed amendments concurrent withthe preparation our proposal to the RFP last month. Let me know if you have any further questions. Best regards, -- -- Douglas E. Minger Attorney at Law541 Willamette, Suite 110 Eugene, OR 97401(541) 484-0264 (541) 484-0529 (fax) ATTACHMENT 2 McKenzie Defense Proposal C2212 McKenzie Defense Page 21 of 98 AIS ATTACHMENT 1, Page 21 of 98 DRAFTFrom:Douglas Minger To:MCMAHAN Jayne; SEDERLIN Allison Cc:Frank Segarra; Leslie Wolf Subject:RFP #1999 Date:Thursday, November 01, 2018 4:25:14 PM Jayne After further consideration by Frank Segarra and myself, McKenzie Defense agreesto the terms of the RFP, subject to (1) the Proposed Amendments thereto I providedearlier today, (2) the Exceptions stated in its proposal, and (3) the inclusion of aminor provision I discussed with Allie Sederlin this afternoon requiring the Court tomake best efforts to respect attorney time and convenience by calling cases whencourt is in session in an order ensuring that attorneys with a single client present arecalled first, for the amount of the current City/LLC contract for appointed cases plusthe $18,000 stated in MD's proposal for appearances by an attorney at all in-custodyarraignments. Please get in touch if you have any further questions or let me know where we gofrom here. Thank you, -- -- Douglas E. MingerAttorney at Law541 Willamette, Suite 110Eugene, OR 97401(541) 484-0264(541) 484-0529 (fax) CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGED This communication (and any documents attached to it) contains confidentialinformation belonging to the sender which is protected by the attorney/clientprivilege. The information is intended only for the use of the recipient namedabove. If you are not the intended recipient, any disclosure, copying, distribution orthe taking of any action in reliance on the contents of this information is strictlyprohibited. If you have received this transmission in error, please notify usimmediately by telephone or email and take all necessary and appropriate measuresto delete the communication from your system. Virus-free. www.avast.com ATTACHMENT 2 McKenzie Defense Proposal C2212 McKenzie Defense Page 22 of 98 AIS ATTACHMENT 1, Page 22 of 98 DRAFTFrom:Douglas Minger To:MCMAHAN Jayne Cc:Frank Segarra Subject:Re: RFP 1999 Indigent Defense Services - McKenzie Defense Clarifications *DUE Oct. 16th Noon* Date:Tuesday, October 16, 2018 1:50:18 PM Attachments:Contact Letter.pdf My apologies Jane. I read your email when I got home last evening after anunusually tiring hearing in Douglas County and apparently due to exhaustion,thought you were requesting an answer by Friday at noon. The short answer to your question is no, McKenzie Defense does not mail the initialcontact letter to in-custody clients at the Springfield or Lane County jails. Instead,current practice requires all attorneys to provide the letter to clients held in thosefacilities during their initial meetings with them. Each attorney has a copy of theletter with their particular name and contact information included, with the clientname to be filled in by the attorney for each case. I have attached a copy of myown letter for reference. Because attorney contact with in-custody clients is to occur within 24 hours, and 48at the outside, this procedure has been considered at least as fast as mailing, whichwould require 2-4 days depending on how quickly mail is distributed by jail staff. After notifying attorneys of all current in-custody appointments, our officeadministrator generates contact letters for all newly-appointed clients, with theirnames and case information included, and mails a copy to all such clients, whetherin-custody or not. By doing so we ensure that clients designated as in-custody atthe time of appointment who were already released, as occurs often, receive theattorney appointment notification at their given mail addresses. After a quick consultation with Frank Segarra and Stacey Colorado a few momentsago, it was agreed in the event the City feels some form of backup to thoseprocedures is necessary, we would consider having Stacey email all Springfield in-custody contact letters to Frank Segarra when she has completed all other parts ofthe appointment and notification process for each new batch of appointments. Segarra's office is 2 blocks from the Springfield Jail, and he or his assistant wouldprint out the letters and deliver them to the jail for distribution. Letters fordefendants at Lane County Jail, where it is expected implementing such procedureswould be more problematic, could be mailed. I hope this helps. Please let me know if further clarification is required. Doug Minger Virus-free. www.avast.com On Tue, Oct 16, 2018 at 12:51 PM, MCMAHAN Jayne <jmcmahan@springfield-or.gov> wrote:?Hi Doug, ATTACHMENT 2 McKenzie Defense Proposal C2212 McKenzie Defense Page 23 of 98 AIS ATTACHMENT 1, Page 23 of 98 DRAFTDid your reply get stuck in your spam filter? Your answer was due at Noon today. Please advise. Thank you, Jayne McMahan C.P.M.Procurement and Contracts ManagerCity of SpringfieldPh: 541.726.3708________________________________From: MCMAHAN JayneSent: Monday, October 15, 2018 3:08 PMTo: 'Douglas Minger'Subject: RFP 1999 Indigent Defense Services - McKenzie Defense Clarifications*DUE Oct. 16th Noon* Hi Doug, The following question is being proposed by the review committee. Your answersare due back to me no later than noon Oct. 16th. 1. You indicate that an attorney appointment notice is mailed to clients incustody at state facilities can you clarify that locally incarcerated (SMJ and LCJ)clients will be notified of the name and contact information for their assignedattorney in the same manner? Thank you, Jayne McMahan C.P.M. | City Procurement & Contracts Manager | City ofSpringfield 225 5th Street, Springfield, OR 97477|office: 541.726.3708|jmcmahan@springfield-or.gov<mailto:jmcmahan@springfield-or.gov> Please consider the environment before printing this email. To request other formats, please contact me at:Voice: 541.726.3708 / Relay: 711Email: jmcmahan@springfield-or.gov -- -- Douglas E. MingerAttorney at Law541 Willamette, Suite 110Eugene, OR 97401 ATTACHMENT 2 McKenzie Defense Proposal C2212 McKenzie Defense Page 24 of 98 AIS ATTACHMENT 1, Page 24 of 98 DRAFT(541) 484-0264(541) 484-0529 (fax) CONFIDENTIAL - ATTORNEY/CLIENT PRIVILEGED This communication (and any documents attached to it) contains confidentialinformation belonging to the sender which is protected by the attorney/clientprivilege. The information is intended only for the use of the recipient namedabove. If you are not the intended recipient, any disclosure, copying, distribution orthe taking of any action in reliance on the contents of this information is strictlyprohibited. If you have received this transmission in error, please notify usimmediately by telephone or email and take all necessary and appropriate measuresto delete the communication from your system. ATTACHMENT 2 McKenzie Defense Proposal C2212 McKenzie Defense Page 25 of 98 AIS ATTACHMENT 1, Page 25 of 98 DRAFTDate: __________________________, 2018 Defendant Name:____________________________________Custody Status:In Custody / Not in Custody Mailing Address:____________________________________________________________________________ ________________________________________Where: SMJ / LCJ / N/A Phone (if any):________________________________________ RE: SPD Case Number(s):______________________________________________________________ Trial/hearing Date/Time:__________________________, 2018 at __________:_________ ____.m. Docket Number(s)/Charge(s):________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ Dear M___. ________________________________: The following attorney has been appointed to represent you in Springfield Municipal Court on the charges described above. You must contact him no more than seven (7) days after you receive this letter. Attorney’s Name: Douglas Minger Mailing Address: 541 Willamette Street, Suite 110, Eugene, Oregon 97401 Phone Number: 541-484-0264 Preferred means of contact (if any): (Email) demlaw@gmail.com All attorneys from McKenzie Defense Consortium LLC (MDC) are independent private attorneys who accept cases by appointment from the Springfield Municipal Court under contract with MDC. Once an attorney has been appointed, he or she will request police reports and other discovery in your case from the City Prosecutor. While it is intended such discovery will be sent to your attorney within a few days, the actual time may vary from case to case. If you are being held at the Springfield Jail your attorney will contact you there. If you are in custody at Lane County Jail or another location you should try to get word to your attorney where you are being held. If you are released from custody you must immediately get in touch with your attorney, or notify him or her how to reach you by phone and by mail. If you are not in custody you must make sure the Court and your attorney both have a current phone number and mailing address for you. If unable to reach your attorney when you call, please leave a clear message stating your name, what you are calling about, and a phone number where you can be reached. If possible, also leave a 2nd number where you receive messages. Please allow a reasonable time for you attorney to contact you before trying to call again once you have left a message. MDC staff members do not work directly for your attorney. They cannot give you legal advice or discuss the facts or substance of your case. Because communications with anyone but your attorney are not protected by attorney-client privilege you should not try to discuss your case with MDC staff members or anyone else, other than your appointed attorney. ATTACHMENT 2 McKenzie Defense Proposal C2212 McKenzie Defense Page 26 of 98 AIS ATTACHMENT 1, Page 26 of 98 DRAFTPage Two Always remember to assert your rights. Never talk to the police, or anyone other than the attorney assigned to you about the facts or substance of your case. You are not required to talk with anyone about your social security number, immigration status or country of origin. Remember, you must appear for all trial and other court dates. If you retain your own attorney you must give that attorney a copy of this notice and he or she should notify your appointed attorney and the Court you have hired your own attorney to represent you in the case. Thank you. McKenzie Defense Consortium, LLC pc: Springfield Municipal Court City Prosecutor ATTACHMENT 2 McKenzie Defense Proposal C2212 McKenzie Defense Page 27 of 98 AIS ATTACHMENT 1, Page 27 of 98 DRAFTFrom:MCMAHAN Jayne To:"Douglas Minger" Subject:RFP 1999 Indigent Defense Services - McKenzie Defense Clarifications *DUE Oct. 16th Noon* Date:Monday, October 15, 2018 3:08:02 PM Importance:High Hi Doug, The following question is being proposed by the review committee. Your answers are due back to me no later than noon Oct. 16th. 1. You indicate that an attorney appointment notice is mailed to clients in custody at state facilities can you clarify that locally incarcerated (SMJ and LCJ) clients will be notified of the name and contact information for their assigned attorney in the same manner? Thank you, Jayne McMahan C.P.M. | City Procurement & Contracts Manager | City of Springfield 225 5th Street, Springfield, OR 97477|office: 541.726.3708| jmcmahan@springfield-or.gov Please consider the environment before printing this email. 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98 AIS ATTACHMENT 1, Page 97 of 98 DRAFTCOURTROOM SCHEDULE (Approved SMT 12-2017)EFFECTIVE JANUARY 2018 TIME MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY BY 7:45:00 AM Gates open Gates open Gates open Gates open Gates open 8:00 AM Arraignments - violations DUII DIVERSION COURT Show Cause - Initial NON DUII Diversions Arraignments - violations Overflow set in- In custody only 8:30 AM Criminal Hearings Custody Criminal Hearings 8:40 AM Criminal Hearings Custody Criminal Hearings 8:50 AM Criminal Hearings Custody Criminal Hearings 9:00 AM Truancy Court Criminal Hearings Criminal Hearings Violation Trials Custody Criminal Hearings 9:10 AM Criminal Hearings Criminal Hearings Custody Criminal Hearings 9:20 AM Criminal Hearings Criminal Hearings Custody Criminal Hearings 9:30 AM Open Court Criminal Trials Criminal Trials Open Court Criminal Trials (Spanish Interpreter 2nd Tues of month) (M Marsyck) 1:00 PM Prisoners arraignments Prisoners arraignments Prisoners arraignments Prisoners arraignments Prisoners arraignments 1:30 PM Arraignments - misdemeanors w/without associated violations Arraignments - misdemeanors w/without associated violations Arraignments - misdemeanors w/without associated violations Arraignments - misdemeanors w/without associated violations 2:00 PM Open Court Criminal Hearings Arraignments - violations Criminal Hearings Custody Criminal Hearings 2:05 PM Criminal Hearings Criminal Hearings Custody Criminal Hearings 2:10 PM Criminal Hearings Criminal Hearings Custody Criminal Hearings 2:15 PM Criminal Hearings Criminal Hearings Custody Criminal Hearings 2:20 PM Criminal Hearings Criminal Hearings Custody Criminal Hearings 2:25 PM Criminal Hearings Criminal Hearings Custody Criminal Hearings 2:30 PM Criminal Hearings Criminal Hearings Criminal Hearings Custody Criminal Hearings 2:35 PM Criminal Hearings Criminal Hearings Criminal Hearings Custody Criminal Hearings 2:40 PM Criminal Hearings Criminal Hearings Criminal Hearings Custody Criminal Hearings 2:45 PM Criminal Hearings Criminal Hearings Criminal Hearings Custody Criminal Hearings 2:50 PM Criminal Hearings Criminal Hearings Criminal Hearings Custody Criminal Hearings 2:55 PM Criminal Hearings Criminal Hearings Criminal Hearings Custody Criminal Hearings 3:00 PM Violation Trials (Spanish Interpreter 1st Monday of month) Overflow set in- In custody only Overflow set in- In custody only Overflow set in- In custody only Overflow set in- In custody only 3:30 PM Violation Trials 4:30 PM Court closed Court closed Court closed Court closed Court closed K/COMMON/SCHEDULES/COURTROOM SCHEDULES Arraignments - misdemeanors w/without associated violations (Including violations if interpreter needed). 1st & 3rd Monday Spanish interpreter) ( 1st- M Marsyck) (3rd J Morrell) ATTACHMENT 3 C2212 McKenzie Defense Page 98 of 98 AIS ATTACHMENT 1, Page 98 of 98