KNicely Mental Health Court-PT

CITY OF GLENDALE 
PUBLIC DEFENDER MENTAL HEALTH COURT AGREEMENT 
This Public Defender Mental Health Court Agreement (" Agreement") is made and 
entered into this 1st day of September 2021, by and between the City of Glendale, an Arizona 
municipal corporation ("City") and Karen Nicely, Attorney at Law(" Attorney"). 
RECITALS 
A.
The City Manager of the City of Glendale is authorized and empowered by provisions of
the Glendale City Charter to execute contracts and contract amendments; and
B.
The City desires to provide legal counsel for the representation of Mental Health Court
defendants ("Defendants") in the Glendale City Court ("Court"), where such
representation is required by the United States Constitution, the Arizona Constitution,
and the Rules of Criminal Procedure for the State of Arizona; and
C.
Attorney is licensed to practice law in the State of Arizona, is a member in good standing
with the State Bar of Arizona ("Bar"), is otherwise professionally qualified to provide the
desired services and is ready, willing and able to do so; and
D.
City and Contractor desire to memorialize their agreement with this document.
AGREEMENT 
1.
Term of Agreement. The initial term of this Agreement shall be for one year, commencing
September 1, 2021 and expiring on August 31, 2022 ("Term").
2.
Renewal. Not less than 30 days prior to the end of the Term, City may extend this
Agreement for up to two additional one-year periods with the consent of Attorney. City
may change the rate of compensation applicable to any extension period. No renewal will
take place unless initiated by the City.
3.
Fees. The City will pay Attorney for every-other-week representation for Mental
Health Court legal services provided pursuant to this Agreement during the period
beginning September 1, 2021 and continuing until August 31, 2022, and for the
duration of this Agreement, at the rate of $22,500 per annum, payable monthly at the
rate of $1,875. If less than a full calendar month is :included at any time within the
Term of this Agreement, the monthly base compensation will be prorated for that
month at a daily rate. Attorney must submit a monthly invoice for payment to the
Agreement Administrator no later than the tenth day of the following calendar month
for which Attorney is billing. The invoice must be substantiated with the appropriate
statistical reports as referenced herein. In the event of termination prior to the
expiration date of this Agreement, Attorney will submit a finalbilling.
3.1 
Additional Fees. At the sole discretion of and upon written approval of the
Presiding City Judge or his/her designee ("Presiding Judge"), Attorney will be
paid enhanced compensation at the rate of $40.00 per hour for extraordinary cases
that because of the complexity of facts, legal issues or proceedings, create
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significant additional work for Attorney. The filing of an appeal or a complaint 
for Special Action will not, by itself, support a decision to approve additional fee 
compensation. 
3.2 
Costs. Attorney will pay all costs and expenses incurred in the representation of 
Defendants, except as otherwise expressly provided in this Agreement. Costs for 
which the Attorney is responsible include, but are not limited to, office rent, 
telephone, computer, expenses related to the maintenance and operation of an 
office, transportation, photographs, photocopies, secretarial services, law clerks, 
transcripts (other than appeal transcripts), depositions and preparation of reports 
required by this Agreement. 
3.3 
Court Costs and Third Party Fees. The Court will pay costs of interpreters and 
appellate transcripts. Subject to prior motion and approval, the Court may agree 
to pay reasonable compensation for other necessary support services such as 
expert witnesses, investigators, out of court interpreters, and blood samples, when 
a finding is made by a judge or judge pro-tern of the Court that such services are 
indispensable to the interests of justice. 
4.
Services. Attorney will provide legal representation to Defendants when appointed to do
so by a judge or judge pro-tern of the Court.
4.1 
Quality of Representation. 
Attorney will conduct the defense of assigned
Defendants diligently and professionally, consistent with standards set forth in the
Arizona Rules of Professional Conduct and case law defining the duties of defense
counsel in criminal cases.
4.2 
State Bar of Arizona Membership. Attorney must at all times remain an active 
member in good standing with the Bar. Attorney must immediately inform the 
Court Administrator of any changes in Attorney's active membership status and 
of any adverse Bar rulings. Failure to maintain membership status and/or failure 
to promptly apprise the Court Administrator of changes may result in the 
immediate termination of this Agreement. 
4.3 
Availability. Attorney will maintain an office, or make arrangements to use an 
office, that is located within a 30-mile radius of the Court, to meet with Defendants, 
to accept telephone calls and to take messages during regular business hours. 
1.1 
4.4 
Caseload. No more than 200 Mental Health Court cases will be assigned 
to Attorney during the Term of this Agreement, except at the request of Attorney 
and with written permission of the Court Administrator. No more than 200 
Mental Health Court cases per year will be assigned to Attorney during 
any one- year extensions of this Agreement, except at the request of 
Attorney and with written permission of the Court Administrator. If 
Attorney is appointed to represent a Defendant who has more than one 
court case pending, Attorney will be credited with one appointment for 
each additional court case associated with each Defendant. 
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a.
Ethical Limitations. Attorney agrees not to accept representation of clients,
other than Defendants represented pursuant to this Agreement, to the
extent that such representation would increase the caseload beyond the
guidelines set forth in National Legal Aid and Defender Association,
American Council of Chief Defenders, Statement on Caseloads and Workloads,
Resolution (August 24, 2007). On cases that Attorney views as unusually
complicated, Attorney may make written requests to the Presiding
Judge, requesting said case to be counted as more than one case toward
Attorney's 200 caseload limit. Final determination will be made by the
Presiding Judge. At no time shall Attorney's private practice caseload
reach such a level, during his or her service as Public Defender, so as to
jeopardize Attorney's ability to complete the 200 court cases specified
in this Agreement.
b.
Review of Caseload. To ensure effective representation of Defendants,
Attorney will review the assigned caseload quarterly during the Term
of this Agreement. The ABA standards and the guidelines set forth in
Footnote 50 of The Implementation and Impact of Indigent Defense by Scott
Wallace and David Carroll, as well as the standards and guidelines
contained in State v. Smith, 681 P.2d 1374 (1984) will be employed and
Attorney will consider the number and complexity of cases assigned
during the quarter, the amount of time spent on those cases and
Attorney's capability to handle the caseload assigned. Additionally,
Attorney must provide a caseload report to the Presiding Judge on a
quarterly basis stating the number of completed cases and the number
of open cases for that quarter. The caseload report must be submitted
to the Presiding Judge no later than April 10th, July 10th, October 10th,
and January 10th of each year. The caseload report will be compiled in
spreadsheet format and submitted electronically to the Presiding
Judge.
c.
Change in Defendant's Financial Circumstances. If Attorney becomes
aware of a material change in financial circumstances of any assigned
Defendant, Attorney must notify the Court. If Attorney requests a re­
determination of the indigence of any Defendant that Attorney represents,
and if the Court makes a determination of non-indigence of such
Defendant and allows Attorney to withdraw, Attorney agrees he or she
will not represent that Defendant in that case for a fee.
d.
Suspension of Appointments. Should Attorney experience a caseload that
prevents Attorney from giving effective assistance of counsel to each
Defendant, Attorney must file a motion requesting the Presiding Judge for
a suspension of further appointments until such congestion clears. Notice
of any motion filed pursuant to this provision must be given to the
Glendale City Prosecutor.
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(1)
Hearing to Suspend Appointments. The Presiding Judge, upon
receipt of a motion filed pursuant to this section, will set it for
hearing not later than five days from its receipt. Should the
Presiding Judge find at such hearing that the indigent caseload is
excessive, and is adversely interfering with the Attorney's ability to
give effective legal assistance, the Presiding Judge may suspend
further appointments to Attorney for a period not to exceed 30
days, when such suspension is deemed necessary in the interest of
justice. During any suspension imposed under this section, the
Presiding Judge will appoint such additional private counsel as
may be necessary to represent Defendants and will compensate
such private counsel for services rendered.
(2)
Reporting. During any period of suspension of appointments
granted or imposed by the Presiding Judge, the Attorney must
notify the Presiding Judge in writing every Monday ( or Tuesday if
Monday is a legal holiday) as to the status of the caseload and
congestion. 
The Attorney must notify the Presiding Judge
immediately when the congestion that was the basis upon which
the suspension was imposed has been relieved sufficiently to
permit reinstatement of the regular appointment procedure.
(3)
Hearing to Terminate Suspension. 
At the expiration of any
suspension period ordered by the Presiding Judge, or earlier if so
notified by Attorney, the Presiding Judge will set and conduct a
hearing for the purpose of determining whether such suspension
should be lifted or if a further suspension of appointments not to
exceed 30 days should be granted.
( 4)
Continued Representation. Suspension of appointments under this
section affects only the appointment of new Defendants to Attorney
and in no way releases either party from other duties or obligations
pursuant to this Agreement, or Attorney from obligations to
Defendants already assigned to Attorney.
4.5
Appearances. Attorney must appear personally for Defendants whom they 
represent in the every-other-week Mental Health Court matters set in the Court, 
including but not limited to motions, evidentiary hearings, oral arguments, court 
sessions, unless the personal appearance by the Attorney is excused by a judge or 
judge pro-tern before whom the matter is to be heard or decided. 
a.
Jail Court. Attorney must appear personally to represent Jail Court
Defendants as assigned. Jail Court Defendants will not be counted toward
the maximum 200 cases assigned to Attorney.
b.
Mental Health Court Program. Attorney must appear personally to
represent Defendants in the Court's Mental Health Court Program as
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assigned. Mental Health Court Program Defendants will not be counted 
toward the maximum 200 cases assigned to Attorney. 
c.
Association of Counsel. Attorney must provide for substitution of counsel
when Attorney is unable for any reason to appear in Court. Substitute
counsel shall not be used routinely and in no event no more often than in
approximately 20% of all court appearances in cases assigned to Attorney.
Attorney must provide names, addresses and telephone numbers of
substitute counsel who will be responsible to the same effect and extent as
Attorney for performance of the services contemplated and enunciated in
this Agreement. It will be the responsibility of the Attorney to compensate
any substitute counsel under this paragraph of this Agreement. Substitute
counsel will not be offered as a substitute or employed in the performance
of this Agreement without the written consent of the Presiding Judge,
which consent may be withdrawn at the Presiding Judge's discretion. The
names of all attomey(s) who may be employed as substitute counsel in the
performance of this Agreement, including those offered as substitute
counsel, must be on file with the Presiding Judge during the Term of this
Agreement. Substitute counsel will not conduct any jury trial or bench trial
unless, pursuant to Rule 6.3, Arizona Rules of Criminal Procedure, a
motion for substitution of attorney is granted by the Court.
4.6 
Defendant Contact. 
Attorney must provide personal consultation with 
Defendants in Mental Health Court. Attorney must use reasonable diligence in 
maintaining personal contact with each Defendant until the Defendant's case or 
cases are terminated and will use reasonable diligence in notifying Defendants of 
official court action resulting from Defendant's nonappearance at scheduled court 
sessions. 
4.7 
Precedence of Cases. Attorney agrees that court settings in the Court will take 
precedence over civil cases and all other criminal cases in other courts that do not 
have precedence as provided by the Arizona Rules of Criminal Procedure. 
4.8 
Defendant Conflicts. In the event a case involves two or more Defendants, the 
Court will appoint such additional counsel as is necessary to avoid a conflict of 
interest, the appearance of impropriety or as otherwise required in the interest of 
justice. 
4.9 
Non-exclusivity. The Attorney acknowledges and agrees that this Agreement to 
accept court appointments and provide legal services to Defendants is non­
exclusive and the City may enter into other similar agreements with other private 
attorneys as may be deemed reasonably necessary to provide legal services to 
criminal Defendants. 
4.10 
Reports. Auditing and Evaluation. Attorney must maintain current case logs, 
disposition records, time sheets, and provide written reports containing sufficient 
and pertinent information requested and required by the Presiding Judge for the 
purpose of audit and evaluation of Attorney under this Agreement. Monthly 
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statistical reports must be submitted on forms approved by the Court and must 
accompany monthly invoices. The Presiding Judge and the Agreement 
Administrator reserves the right to revise the information required on the format 
of the monthly statistical form at any time. Any such revision will operate 
prospectively. Failure to provide accurate and timely statistics may result in the 
City withholding payment to the Attorney until Attorney complies with reporting 
requirements. 
4.11 
Continuing Representation. It is understood by Attorney that the duty to
represent an assigned Defendant continues until the case is (including, but not 
limited to a Rule 11 hearing) has concluded. 
5.
Termination.
5.1 
By City. This Agreement may be terminated by the City, without cause and for 
convenience, by a 30 day written notice of termination. In the event of termination 
for convenience, City's sole obligation to Attorney will be to pay the fees incurred 
for services performed as of the date of termination, except as provided below. 
5.2 
By Attorney. Attorney may terminate this Agreement upon a 60 day written 
notice of termination to the Presiding Judge or the Court Administrator. 
5.3 
For Cause. The City may also terminate this Agreement without notice for cause. 
Any of the following may constitute an event of default by Attorney which may 
constitute cause and entitle the City to terminate this Agreement immediately 
without notice for: (a) failure to comply with any of the terms and conditions of 
this Agreement, including but not limited to, all the reporting requirements in this 
Agreement; (b) unsatisfactory performance in the opinion of the Agreement 
Administrator or judges; (c) failure to maintain malpractice insurance; (d) failure 
to abide by current rules of professional ethics; (e) performance that falls below 
the guidelines set by the Arizona Supreme Court for legal services; (£) suspension 
or disbarment by the Arizona Supreme Court; and (g) failure to provide the City, 
upon request, reasonable assurances of future performance. In the event of 
termination for cause, the City will not be liable to Attorney for any damages 
sustained by reason of the default which gave rise to the termination, and the 
Attorney will be liable to the City for any and all damages sustained by the City 
by reason of the default which gave rise to the termination. 
5.4 
Conflicts of Interest. This Agreement is subject to the provisions of A.R.S. § 38-
511. It may be canceled by the City, without penalty or further obligation, if any
person significantly involved in initiating, negotiating, securing, drafting or
creating this Agreement on behalf of the City is, at any time while this Agreement,
or any extension, is in effect, Attorney's employee, agent or consultant, or
consultant to the City with respect to the subject of this Agreement.
5.5 
Funds Appropriation Contingency. If funds are not appropriated by the City 
Council for payment of charges hereunder, the City may terminate this 
Agreement. 
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6.
Insurance. Attorney will provide the Court Administrator a certificate of insurance for
malpractice coverage in an amount not less than $100,000/$300,000 within ten days of
award. The deductible will be displayed on the certificate. The Court Administrator may
require a financial statement so as to evidence the ability of the Attorney to fund the
deductible. Insurance must remain in force during the Term of this Agreement. In the
event the Attorney's insurance is terminated, Attorney must immediately notify the Court
Administrator and this Agreement may be terminated. Insurance coverage must be
written through a carrier possessing an A.M. Best rating of not less than A-.
7.
General Conditions.
7.1 
Modification of Agreement. This Agreement will be deemed modified to comply 
with any subsequent changes regarding indigent representation imposed by case 
law or rules promulgated by the Arizona Supreme Court. 
7.2 
Indemnification. Attorney will defend, indemnify, and hold harmless the City and 
any of its departments, agents, officers, and employees from all damages, claims, 
or liabilities and expenses, including attorney fees, arising out of or resulting from 
the performance of professional services under this Agreement and caused by any 
error, omission or negligent act of the Attorney, or anyone for whose acts the 
Attorney is legally liable. 
7.3 
Waiver of Liens. Attorney expressly waives any and all Attorney's liens that may 
arise in the course of performance under this Agreement. 
7.4 
Independent Contractor. The relationship created herein between Attorney and 
the City will be solely that of independent contractor, and nothing contained 
herein may be construed to create a relationship of principal/agent, 
employer/employee, partnership, joint venture, or any relationship of any kind 
other than independent contractor. 
7.5 
Integration. 
Except as stated herein, this Agreement constitutes the entire 
understanding of the parties and no representation or agreements, oral or written, 
made prior to this execution will vary or modify the terms herein. 
7.6 
Governing Law. This Agreement will be governed and interpreted according to 
the laws of the State of Arizona. 
7.7 
Amendments. Any amendment or modification of the terms of this Agreement 
must be in writing and signed by the parties. 
7.8 
Assignment. Services covered by this Agreement will not be assigned in whole or 
in part except as necessary to provide for substitution of counsel as required 
herein. 
7.9 
Time of the Essence. Time is of the essence with respect to fulfillment of all 
obligations set forth herein. 
7.10 
Public Record. Attorney is hereby informed that this Agreement is a public record 
and is subject to full disclosure under Arizona law. 
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7.11 
Agreement Administrator. The Agreement Administrator for the City will be the 
Presiding Judge or his/her designee. The Agreement Administrator will oversee 
performance of this Agreement, audit billings, and approve payments. The 
Attorney will submit reports, notices, requests, and other correspondence to the 
Agreement Administrator. 
7.12 
Immigration Law Compliance. 
a.
Attorney, and on behalf of any substitute attorney, warrants, to the extent
applicable under A.RS. § 41-4401, compliance with all federal immigration
laws and regulations that relate to their employees as well as compliance
with A.RS.§ 23-214(A) which requires registration and participation with
the E-Verify Program.
b.
Any breach of warranty under this section is considered a material breach
of this Agreement and is subject to penalties up to and including
termination of this Agreement.
c.
City retains the legal right to inspect the papers of any Attorney or
substitute attorney who performs work under this Agreement to ensure
that the Attorney or any substitute attorney is compliant with the warranty
under this section.
d.
City may conduct random inspections, and upon request of City, Attorney
shall provide copies of papers and records of Attorney demonstrating
continued compliance with the warranty under this section. Attorney
agrees to keep papers and records available for inspection by the City
during normal business hours and will cooperate with City in exercise of
its statutory duties and not deny access to its business premises or
applicable papers or records for the purposes of enforcement of this
section.
e.
Attorney agrees to incorporate into any subcontracts under this Agreement
the same obligations imposed upon Attorney and expressly accrue those
obligations directly to the benefit of the City. Attorney also agrees to
require any substitute attorney to incorporate into each of its own
subcontracts under this Agreement the same obligations above and
expressly accrue those obligations to the benefit of the City.
f.
Attorney's warranty and obligations under this section to the City is
continuing throughout the Term of this Agreement or until such time as
the City determines, in its sole discretion, that Arizona law has been
modified in that compliance with this section is no longer a requirement.
g.
The "E-Verify Program" above means the employment verification
program administered by the United States Department of Homeland
Security, the Social Security Administration, or any successor program.
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7.13 
Foreign Prohibitions. Attorney certifies under A.RS.§§ 35-391 et seq. and 35-393 
et seq., that it does not have, and during the Term of this Agreement will not have, 
"scrutinized" business operations, as defined in the preceding statutes, in the 
countries of Sudan or Iran. 
7.14 
Non-discrimination. Contractor must not discriminate against any employee 
or applicant for employment on the basis of race, color, religion, sex, national 
origin, age, marital status, sexual orientation, gender identity or expression, 
genetic characteristics, familial status, U.S. military veteran status or any 
disability. Contractor will require any Sub-contractor to be bound to the same 
requirements as stated within this section. Contractor, and on behalf of any 
subcontractors, warrants compliance with this section. 
8.
No Boycott of Israel. To the extent A.RS. § 35-393 through§ 35-393.03 are applicable, the
parties hereby certify that they are not currently engaged in and agree for the duration of
the Agreement to not engage in, a boycott of goods or services from Israel, as that term is
defined in A.RS § 35-393.
ATTEST: 
City Clerk 
(SEAL) 
APPROVED AS TO FORM: 
City Attorney 
9 
ATTORNEY: 
KarenNicely, 
Attorney at Law 
%/:;_, 
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___________________________
Kevin R. Phelps
City Manager