Michael O'Brien - Municipal Court Judge CITY OF TIGARD, OREGON
RESOLUTION NO. 97- 33
A RESOLUTION OF THE TIGARD CITY COUNCIL APPROVING PERSONAL SERVICE
CONTRACT WITH MICHAEL O'BRIEN, MUNICIPAL COURT JUDGE
WHEREAS,Section 10 of the Tigard City Charter provides for the office of Municipal Judge; and.
WHEREAS,Michael O'Brien served as a Municipal Court pro-tem judge from October 23,1989 to July 1,
1992 and has served as Municipal Court Judge since July 1, 1992; and
WHEREAS,the Tigard City Council has found Judge O'Brien's performance to be satisfactory; and
WHEREAS, the City council wishes to continue the understood reporting procedure between the City and
the Municipal Judge;
NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that:
SECTION 1: The Personal Services Contract is entered into by mutual agreement of the parties as set
forth in the attached.Exhibit"A". This Contract will take effect upon signing and shall
repeal and replace all prior verbal and written agreements.
PASSED: This a( day of — 1997.
City of Tigard
ATTEST:
�( ��la�te GlJ , GC -i cam- Certified to be a True Copy of
City Recorder- City of Tigard Original on file=' G+', of T`1�d- em ti
By:22Q (�(�
iAd"ideVesolut:dot Clty RG'C rder- City of Tigard
q q
RESOLUTION NO. 97-33
Page 1
CITY OF TIGARD, OREGON
PERSONAL SERVICES CONTRACT
THIS AGREEMENT made and entered into this 1st day of-July, 1997 by and between the CITY
OF TIGARD, a municipal corporation of the State. of Oregon, hereinafter called CITY, and
MICHAEL O'BRIEN, hereinafter called.CONTRACTOR.
W'ITNESS.ET.H
WHEREAS, CITY has need for the services of Municipal Judge; and
WHEREAS, City Administrator and Court Administrator have determined that Michael O'Brien is
qualified and capable of performing the professional services as CITY does hereinafter require,
under those terms and conditions set forth:
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree
as follows:
1. SERVICES TO BE PROVIDED:
a) Preside over civil infraction, criminal, traffic, and parking case arraignments, trials, and
hearings;
b) Oversee the Municipal Court judicial function;
c) Update court orders and rules as needed;
d) Provide City Council with a year-end report of Court activity; and
e) Research and additional projects as agreed to by the Contractor and Court Administrator.
2. EFFECTIVE DATE AND DURATION:
This Agreement shall become effective upon the date of execution, and shall expire,,
unless otherwise terminated or extended, on June 30, 1999. All work under this
Agreement shall be completed prior to the expiration of this Agreement.
3. COMPENSATION:
CITY agrees to pay CONTRACTOR $1,854.00 per month for performance of those
services described herein. The City and.Contractor agree the terms of compensation may
be re-negotiated if the average hours of service, over a consecutive three month period,
are below 26 hours per month or exceed 30 hours per month. Compensation will also be
reviewed at the end of the 97-98 fiscal year to determine if�an adjustment is appropriate.
Payment shall be based upon the following applicable terms:
Municipal Judge Personal Services Contract
Page 1
a Payment will be made in installments based on C:ONTRACTOR's invoice, subject
to the approval of the Court Administrator. Payment shall be made only for_work
actually completed as of the date of invoice.
b. Payment by CITY shall release CITY from any further obligation for payment to
CONTRACTOR, for services performed or expenses incurred:as of the date of the
invoice. Payment shall not be considered acceptance or approval of any work or
waiver of any defects therein.
C. CONTRACTOR shall pay to the Department of Revenue all sums withheld from
employees pursuant to ORS 316.167.
d. The CITY certifies that sufficient funds are available and authorized for expenditure
to finance costs of this contract.
4. CITY'S REPRESENTATIVE:
While it is recognized that the CONTRACTOR works at the pleasure of the Mayor and City
Council, for purposes of the services outlined in Section 1 of this contract, the City's
authorized representative will be the Court Administrator, (Nadine Robinson, 1.3125 SW
Hall Blvd., Tigard, OR 97223, (503)6394171), pursuant to Section 10 of the City Charter
which shall exclude from supervision the exercise of judicial authority functions.
5. OWNERSHIP OF WORK PRODUCT:
CITY shall be the owner of and shall be entitled to possession of the original copies of any
and all work products of CONTRACTOR which result from this Agreement, including any
computations, correspondence or pertinent data and information gathered by or computed
by CONTRACTOR prior to termination of this Agreement by CONTRACTOR or, upon.
completion of the work pursuant to this Agreement.
6. ASSIGNMENT/DELEGATION:
Neither party shall assign, sublet or transfer any interest in or duty under this Agreement.
7. STATUS OF CONTRACTOR AS INDEPENDENT CONTRACTOR:
CONTRACTOR.certifies that:
a. CONTRACTOR acknowledges that for all purposes related to this Agreement,
CONTRACTOR is and shall be deemed to be an independent contractor as
defined by ORS 670.700 and not an employee of CITY, shall not be entitled to
benefits of any kind to which an employee of CITY is entitled and shall be solely
responsible for all payments and taxes required by law. Furthermore, in the event
that CONTRACTOR is found by a court of law or any administrative agency to be
an employee of CITY for any purpose, CITY shall be entitled to offset
compensation due, or to demand repayment of any amounts paid to
CONTRACTOR under the terms of this Agreement, to the full extent of any
benefits or other remuneration CONTRACTOR receives (from CITY or third party)
Municipal Judge Personal Services Contract
Page 2
as a result of said finding and to the full extent of any payments that City is
required to make (to CONTRACTOR or to a third party) as a result of said finding.
b. The undersigned CONTRACTOR hereby represents that no employee of the City
of Tigard, or any partnership or corporation in which a CITY employee has an
interest, has or will receive any remuneration of any description from
CONTRACTOR, either directly or indirectly, in connection with the letting or
performance of this Agreement, except as specifically declared in writing.
CONTRACTOR and its employees, if any, are not active members of the Oregon
Public Employees Retirement System and are not employed for a total of 600
hours or more in the calendar year by any public employer participating in the
Retirement System.
C. CONTRACTOR is not an officer, employee, or agent of the City of Tigard as those
terms are used in ORS 30.265.
8. INDEMNIFICATION:
CITY has relied upon the professional ability and training of CONTRACTOR as a material
inducement to enter into this Agreement. CONTRACTOR warrants that all its work will be
performed in accordance with:generally'accepted professional practices and standards as
well as the requirements of applicable federal, state and local laws, it being understood
that acceptance of a CONTRACTOR's work by CITY shall not operate as a waiver or
release.
City will defend and indemnify CONTRACTOR for all actions taken while CONTRACTOR
is performing the responsibilities of municipal court judge as provided in this agreement to
the extent of the City's obligation pursuant to ORS Chapter 30.
9. INSURANCE:
Not withstanding CONTRACTOR's status as independent contractor, City shall provide
general liability insurance covering CONTRACTOR while he is acting within the scope of
judicial duties for the City, as provided in Section 1 herein.
10. WORKERS' COMPENSATION COVERAGE:
CONTRACTOR, its subcontractors, if any, and all employers working under this
Agreement are subject employers under the Oregon Workers' Compensation Law and
shall comply with ORS 656.017, which requires them to provide workers' compensation
coverage for all their subject workers.
11. METHOD AND PLACE OF GIVING NOTICE, SUBMITTING BILLS AND MAKING
PAYMENTS.
All notices, bills and payments shall be made in writing and may be given by personal
delivery or by mail. Notices, bills and payments sent by mail should be addressed as
follows:
Municipal Judge Personal Services Contract
Page 3
CITY: Nadine Robinson, Tigard Municipal Court
13125'SW Hall Blvd., Tigard OR 97223
Phone number: 639-4171, Fax number: 684-7297
CONTRACTOR: Michael O'Brien
PO Box 711, Forest Grove, OR 97116
Changes may be made in the names and addresses of the person to whom notices, bills
and payments are to be given by giving written notice pursuant to this paragraph.
Payment shall be made within 30 days of the City receiving the invoice.
12. TERMINATION
a. At any time and without cause, CITY shall have the right in its sole discretion, to
terminate this Agreement by giving notice to CONTRACTOR. If CITY terminates
the contract pursuant to this paragraph, it shall pay CONTRACTOR for services
rendered to the date of termination.
b. This contract may be terminated by the CONTRACTOR for any 'reason
whatsoever upon the giving of 30 days written notice to the CITY.
C. Any such termination of this agreement under paragraph (a) shall be without
prejudice to any obligations or liabilities of either party already accrued prior to
such termination.
13. ACCESS TO RECORDS:
CITY shall have access to such books, documents, papers and records of CONTRACTOR
as are directly pertinent to this Agreement for the purpose of making audit, examination,
excerpts and transcripts.
14. NON-WAIVER:
The failure of CITY to insist upon or enforce strict performance by CONTRACTOR of any
of the terms of this Agreement or to exercise any rights hereunder, should not be
construed as a waiver or relinquishment to any extent of its rights to assert or rely upon
such terms or rights on any future.occasion.
15. NON-DISCRIMINATION:
CONTRACTOR agrees to comply with all applicable requirements,of federal and state.civil
rights and rehabilitation statues, rules, and regulations. CONTRACTOR also shall comply
with the Americans with Disabilities Act of 1990, ORS 659:425, and all regulations and
administrative rules established pursuant to those.laws.
Municipal Judge Personal Services Contract
Page 4
16. ERRORS:
CONTRACTOR shall perform such additional work as may be necessary to correct his
errors in the work required under this Agreement without undue delays and without
additional cost.
17. EXTRA (CHANGES)WORK:
The Court Administrator may authorize extra (and/or changes) work, Failure of
CONTRACTOR to secure Administrator's authorization for extra work shall constitute a
waiver of all right to adjustment in the contract price or contract time due to such
unauthorized extra work and CONTRACTOR thereafter shall be entitled to no
compensation whatsoever for the performance of such work.
18. ATTORNEY'S FEES:
In case suit or action is instituted to enforce the provisions of this contract or for breach of
contract, the parties agree that the losing party shall pay such sum as the court may
adjudge reasonable attorney fees and court costs, including attorney's fees and court
costs on appeal.
19. GOVERNING LAW:
The provisions of this Agreement shall be construed in accordance with the provisions of
the laws of the State of Oregon. Any action or suits involving any question arising under
this Agreement must be brought in the appropriate court of the State of Oregon.
20. COMPLIANCE WITH APPLICABLE LAW:
CONTRACTOR shall comply with all federal, state, and local laws and ordinances
applicable to the work under this Agreement, including those set forth in ORS 279.310 to
279.320.
21. CONFLICT BETWEEN TERMS:
It is further expressly agreed by and between the parties hereto that should there be any
conflict between the terms of this instrument in the proposal of the contract, this instrument
shall control and nothing herein shall be considered as an acceptance of the said terms of
said proposal conflicting herewith.
22. AUDIT:
CONTRACTOR shall maintain records to. assure conformance with the terms and
conditions of this Agreement, and to assure adequate performance within the contract
period. CONTRACTOR agrees to permit City of Tigard, the State of Oregon, the federal
government, or their duly authorized representatives to audit all records pertaining to this
Agreement to assure the accurate expenditure of funds. Any independent audit report of
CONTRACTOR's activities or finances prepared for CONTRACTOR shall be submitted to
the City of Tigard's Finance Director.
Municipal Judge Personal Services Contract
Page 5
23. SEVERABILITY:
In the event any provision or portion of this Agreement is held.to be unenforceable or
invalid by any court of competent jurisdiction, the remainder of this Agreement shall
remain in full force and effect and shall in noway be affected or invalidated thereby.
24. COMPLETE AGREEMENT:
This Agreement constitutes the entire Agreement between the parties. No waiver,
consent, modification, or change of terms of this Agreement shall bind either party unless
in writing and signed by both parties. Such waiver, consent, modification, or change if
made, shall be effective only in specific instances and for the specific purpose given.
There are no understandings, agreements, or representations, oral or written, not specified
herein regarding this Agreement. CONTRACTOR, by the signature of its authorized
representative, hereby acknowledges that he has read this Agreement, understands it and
agrees to be bound by its terms and conditions.
IN WITNESS WHEREOF, CITY has caused this.Agreement to be executed by its.duly authorized
undersigned officer and CONTRACTOR has executed this Agreement on the date hereinabove
first written.
CITY OF TIGARD
Y: illiam Monahan, City Administrator
Date
CONTRACTOR
By: 'L Michael O'Brien
ft'C Date
Municipal Judge Personal Services Contract
Page 6