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AGREEMENT FOR COUNSEL SERVICES IN THE
EL MIRAGE CITY COURT
THIS AGREEMENT is made and entered into by and between the CITY OF EL
MIRAGE, an Arizona municipal corporation (hereinafter "CITY"), and James Palestini, a
licensed attorney in the State of Arizona (hereinafter "ATTORNEY"). This Agreement is
effective as of April 1, 2023.
RECITATIONS
The CITY OF EL MIRAGE MUNICIPAL COURT (hereinafter COURT) requires
legal assistance for in-custody and out-of-custody defendants, and CITY desires to
provide legal counsel to qualified indigent defendants. James Palestini, is an Attorney at
Law licensed to practice in the State of Arizona, interested in providing such services.
Now, therefore, the parties agree as follows:
COVENANTS
1. This Agreement is for the representation of indigent defendants in the
COURT. ATTORNEY is responsible for being available for the in-custody docket on
Tuesday mornings and once every two months Tuesday afternoons approximately
between 1:00 pm to 3:00 pm for the term of this Agreement. Any bench trial,
substantive motion/post-conviction hearing, contested probation violation hearing, and
evidentiary hearing, or any other significant litigation may need to be scheduled at
other times according to the schedule of the COURT, ATTORNEY, and prosecutor.
2. ATTORNEY shall provide assistance and advice to defendants as advisory
counsel at arraignment court sessions and in some cases, may be appointed to
represent defendants for the entirety of their case. ATTORNEY shall not later
represent any defendants for a fee for whom ATTORNEY served as arraignment or jail
court counsel in the same case. ATTORNEY also shall not solicit such defendants for
future representation for a fee.
3. ATTORNEY shall personally consult with defendants prior to and during court
sessions, argue release conditions, negotiate plea agreements, represent defendants
pertaining to substantive motions, evidentiary hearings, probation matters, appeals,
post-conviction proceedings, change of plea proceedings, sentencings, trials and any
other matter necessary to represent the defendant's best interests. ATTORNEY shall
provide each client with advice and information regarding the defendant's legal rights
and obligations, explaining the practical implications of the client's possible choices. In
the event a defendant does not enter into a plea agreement or requests a trial, or the
case is not otherwise disposed of at the arraignment court session, the COURT may
appoint ATTORNEY to represent the defendant if that defendant qualifies for a public
defender or it is in the interests of justice for the COURT to appoint ATTORNEY.
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4. The COURT shall promptly notify ATTORNEY of any anticipated
changes in court schedules or locations.
5. ATTORNEY shall provide substitute counsel licensed to practice in the
state of Arizona when unable, for any reason, to appear in COURT or as set
forth in paragraph 1. Substitute counsel shall not be used routinely. In general,
substitute counsel should be used only when ATTORNEY cannot appear in
COURT because of illness, pre-scheduled vacation or counsel is ordered by a
court of precedence to appear in another court. ATTORNEY shall provide the
CITY with the name(s), address(es), telephone number(s) and professional
resumes of substitute counsel who may be responsible for providing
ATTORNEY'S services under this Agreement. Substitute counsel shall abide by
the terms of this contract. Attorney is responsible for paying substitute counsel
and shall not receive any additional compensation from the CITY to compensate
substitute counsel. The CITY shall have no obligation to compensate substitute
counsel.
6. Term: The term of this Agreement is for one year commencing on April
1, 2023 through March 31, 2024. Upon completion of the Term, this Agreement
shall automatically renew for additional successive one (1) year terms, unless
thirty (30) days prior to the expiration of the then current Term, either party
provides notice to the other party of such party’s intent to terminate the
Agreement at the conclusion of the then current Term. Not less than sixty (60)
days prior to the conclusion of the then current Term, the CITY shall determine
whether there will be any change in compensation for the ensuing year. In the
event the Agreement is not renewed by the CITY, ATTORNEY shall complete
all active cases and shall consult with the CITY regarding the full completion of
his responsibilities in accordance with provisions contained in this Agreement.
7. The CITY will compensate ATTORNEY for all services required pursuant to
this Agreement in the amount of $1,000 per month, paid within 10 days of the first of the
month following the services performed.
8. ATTORNEY will not be required to pay for interpreter services for non-
English speaking defendants for any in-court proceedings. CITY shall provide
adequate interview space for use by ATTORNEY in the execution of his/her duties
while arraignment court is being conducted. CITY also shall provide ease of access to
arraignment court for ATTORNEY when he/she is there to carry out the provisions of
this Agreement.
9. ATTORNEY shall be responsible for normal costs incident to the assistance
of indigent defendants in COURT pursuant to this Agreement, including but not
limited to: office space, telephones, transportation, parking, office supplies, office
overhead, compensation of substitute counsel, secretarial services, photocopies,
printing, binding, Internet access and e-mail service.
10.
ATTORNEY shall have an office or make arrangements to use an office
that is located within Maricopa County to provide personal consultation with clients
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when requested and otherwise appropriate.
11. Termination: Either party may terminate this Agreement for any cause or for
no cause upon thirty days written notice to the other party. The date the termination
notice is delivered or mailed shall be deemed to be the date the respective notice
periods begin.
ATTORNEY must at all times remain an active member in good standing of the
State Bar of Arizona. The CITY may, upon written notice to ATTORNEY, immediately
terminate this Agreement if the CITY determines that the ATTORNEY has been
disbarred, suspended or otherwise lawfully prohibited from practicing law. ATTORNEY
must immediately inform the CITY of any changes in ATTORNEY'S bar membership
status. Failure to maintain membership status and/or failure to promptly apprise the
CITY of changes in status may result in immediate termination of this Agreement.
12. This Agreement shall be interpreted to avoid questions of unethical conduct
by ATTORNEY or CITY. The parties shall conform to the Rules of Professional
Conduct as adopted by the State of Arizona.
13. This Agreement is not intended to and will not constitute, create, give rise
to, or otherwise recognize a joint venture, or relationship, partnership or formal
business organization of any kind, and the rights, obligations, and relationship of the
parties shall be that of agency/independent contractor. The parties agree that
neither ATTORNEY nor any person supplied by ATTORNEY in the performance of
his/her obligations under this Agreement are CITY employees, and that no rights of
CITY civil service, retirement or personnel rules accrue to such persons.
ATTORNEY shall have total responsibility for all salaries, wages, bonuses,
retirement, withholdings, worker's compensation, unemployment compensation,
other employee benefits and all taxes and premiums appurtenant thereto
concerning such persons; and shall save and hold the CITY harmless with respect
thereto.
14. ATTORNEY will provide the Public Defender Contract Administrator with
proof of malpractice coverage in an amount not less than $100,000 per
incident/$300,000 aggregate. Insurance shall remain in force during the term of the
Agreement. In the event ATTORNEY'S malpractice insurance is terminated,
ATTORNEY shall immediately notify the Public Defender Contract Administrator and
this Agreement shall be terminated.
15. The parties acknowledge that this Agreement is subject to cancellation by the
CITY pursuant to the provisions of A.R.S. §38-511.
16. Under the provisions of A.R.S. §41-4401, ATTORNEY hereby warrants to
CITY that ATTORNEY and each of its employees will comply with all applicable Federal
Immigration laws and regulations, including but not limited to the Immigration Reform
and Control Act of 1986 (IRCA), and A.R.S. §23-214(A) (hereinafter "Contractor
Immigration Warranty"). CITY may, at its sole discretion, conduct random verification of
the employment records of ATTORNEY and any of his/her employees to ensure
compliance with Contractor's Immigration Warranty. ATTORNEY agrees to assist CITY
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in regard to any random verification performed. ATTORNEY shall NOT be deemed to
have materially breached the Contractor Immigration Warranty if ATTORNEY
establishes that he/she has complied with the employment verification provisions
prescribed by sections 274A and 274B of the Federal Immigration and Nationality Act
and the E-Verify requirements prescribed by A.R.S. §23-214, Subsection A.
17. ATTORNEY in performing under this Agreement shall not discriminate
against any worker, employee or applicant, or any member of the public, because of
race, color, religion, gender, national origin, age, or disability, nor otherwise commit an
unfair employment practice. ATTORNEY will take affirmative action to ensure that
applicants are employed, and that employees are dealt with during employment
without regard to their race, color, religion, gender or national origin, age or disability.
Such action shall include, but not be limited to, the following: employment, promotion,
demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection for training, including
apprenticeship. ATTORNEY further agrees that this clause will be incorporated in all
subcontracts with all labor organizations furnishing skilled, unskilled and union labor, or
who may perform any such labor or services in connection with this Agreement.
ATTORNEY further agrees that this Agreement contemplates personal service
and that ATTORNEY will not enter into subcontracts, job-consultant agreements or
subleases of this Agreement except under special circumstances to be delineated and
agreed to in writing by ATTORNEY and the CITY.
18. In any dispute concerning an interpretation of this Agreement or
concerning the work to be performed hereunder, the CITY shall make the final
determination and that decision shall be binding on the parties.
19. Any provision in this Agreement which is determined to be invalid, void or illegal
shall in no way affect, impair or invalidate any other provision, and remaining provisions
shall remain in full force and effect.
20. This Agreement shall be governed by and construed in accordance with the
laws of the State of Arizona.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
March 21, 2023.
CITY OF EL MIRAGE,
a Municipal Corporation
______________________________
_____________________________
J. Crystal Dyches
James Palestini
City Manager
Attorney at Law
ATTEST
______________________________
Sharon Antes, City Clerk
APPROVED AS TO FORM
______________________________
Justin Pierce, City Attorney