Resolution No. 99-56 CITY OF TIGARD,OREGON
RESOLUTION NO.99-�
A RESOLUTION OF THE TIGARD CITY COUNCIL APPROVING PERSONAL SERVICE
CONTRACT CT WITH Ik4rCu e.EL OSS--N r rt rNRrm e l COURT T JIUDGE
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 Judge since July 1,1992;and
WHEREAS,the Tigard City Councils 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
Municipal Judge;
NO Y4 THEREFOR-E,REI A 'VF'.
J, �.. T ,ESOL.�L,'b y the Tigard City Council that:
SECTION 1: The pe monal services contract is entered into by mutual agreement of the parties as set
forth in the atttached Exhibit"A". This Contract will take effect upon signing and shall
repeal and replace all prior verbal andwritten agreements.
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PASSED: This day of 1999.
a r-City of Tigard
ATTEST:
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City Recorder-City of Tigard
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RESOLUTION NO.9a-�"`/
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CITY OF TIGARD,OREGON
PERSONA-1—SERi:CIES CONTRACT
THIS AGREEMENT made and entered into this 1st day of July, 1999 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
WITNESSETH
:...EREAS,CITY has need for the services of a company with a par:cular training,ability,knowledge,and
experience possessed by CONTRACTOR,and
WHEREAS, City has 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;
• Oversee the Municipal Courtjudicial function;
• Update court orders and rules as needed;
o Research and additional projects as agreed to by the Contractor and Court Administrator.
2. EFFECTTVE DATE AND DURATION:
This Agreement shall become effective upon July 1, 1999 and shall expire, unless otherwise
terminated or extended,on June 30,2001. Compensation will also be reviewed at the end of the
99-00 fiscal year to determine what adjustment is appropriate. All work under this Agreement shall
be completed prior to the expiration of this Agreement.
3. COMPENSATION:
CITY agrees to pay CONTRACTOR not to exceed$23,604.00 for performance of those services
described herein,which payment shall be based upon the following applicable terms:
o a. Payment by CITY to CONTRACTOR for performance of services under this Agreement
includes all expenses incurred by CONTRACTOR Payment will be made in installments
based on CONTRACTOR's invoice,'subject to the approval of the Court Administrator.
Payment shall be made only for work actually completed as ofthe date ofthe invoice.
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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 invoica.
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. OWNERSHIP OF WORK PRODUCT:
CITY shall be the owner of and shall be entitled to possession of any and all work products of
CONTRACTOR which result from this Agreement, including any computations, plans,
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.
5. ASSIGNMENTMELEGATION:
Neither party shall assign,sublet or transfer any interest in or duty under this Agreement without the
written consent of the other and no assignment shall bP of any force or effect whatsoever unless and
until the other party has so consented. If CITY agrees to assignment of tasks to a subcontract,
CONTRACTOR shall be fully responsible for the acts or omissions of any subcontractors and of all
persons employed by them, and neither the approval by CITY of any subcontractor nor anything
contained herein shall be deemed to create any contractual relation between the subcontractor and
CITY.
6. 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)as a result of said
y finding and to the full extent of any payments that City is required to make (to
CONTRACTOR or to a third party)as a resuh of said finding.
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b. The undersigned CONTRACTOR hereby represents that no employee of the Cl rY,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
® conr.czIio n W-1th*.,c;ici—`ng or pc11 Vaaaasa.ce of Ih IJ'Agrft/hent,Gxc,gp as spC;eiflGaily declared
in writing.
If this payment is to be charged against Federal funds,CONTRACTOR certifies that he or
she is not currently employed by the Federal Government and the amount charged does not
exceed his or her normal charge for the type of service provided.
CONTRACTOR and its employees, if any,are not active membe s 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 employee or agent of the CITY as those terms are used in ORS
30.265.
7. 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 f municipal court judge as provided in this agreement to the extent of
the City's obligation pursuant to ORS.
8. 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:
Nadine Robinson,CITY OF TIGARD
Tigard Municipal Court
13125 SW Hall Blvd.
Tigard,Oregon 97223
CONTRACTOR
Michael O'Brien
P.O.Box 711
Forest Grove,OR 97116
and when so addressed, shall be deemed given upon deposit in the United States mail, postage
prepaid. In all other instances,notices,bills and payments shall be deemed given at the time of
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actual delivery. Changes may be made in the names and addresses of the person to whom notices,
bills and payments are to be given by giving wrirtri notice pursuar.,to this paragraph.
® 9- MERGER:
This writing is intended both as a final expression of the Agreement between the parties. No
modification of this Agreement shall be effective unless and until it is made in writing and signetby
both parties.
10. PROFESSIONAL SERVICES:
The CITY requires that services provided pursuant to this agreement shall be provided to the CITY
by a CONTRACTOR which does not represent clients on matters contrary 10 CITY interests.
Further,CONTRACTOR shall not engage services of an attorney and/or other professional who
individually, or through members of his/her same firm,represents clients on matters contrary to
CITY interests.
Should the CONTRACTOR represent clients on matters contrary to CITY interests or engage the
services of an attorney and/or other professional who individually, or through members of his/her
same firm,represents clients on matters contrary to CITY interests,CONTRACTOR shall consult
with the appropriate CITY representative regarding the conflict.
After such consultation, the CONTRACTOR shall have 30 days to eliminate the conflict to the
satisfaction of the CITY. If such conflict is not eliminated within the specified time period, the
agreement may be terminated pursuant to Section 13(b-iii)of this agreement.
11. TERMINATION WITHOUT CAUSE:
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.
12. TERMINATION WITH CAUSE:
a. CITY may terminate this Agreement effective upon delivery of written notice to
CONTRACTOR, or at such later date as may be established by CITY,under any of the
following conditions:
i. If CITY funding from federal, state, local, or other sources is not obtained and
continued at levels sufficient to allow for the purchase of the indicated quantity of
services. This Agreement may be modified to accommodate a reduction in funds
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ii. If federal or state regulations or guidelines are modified,changed,or interpreted in
{ such a way that the services are no longer allowable or appropriate for purchase
under this Agreement.
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iii. If any license or certificate required by law or regulation to be held by
CONTRACTOR,its subcontractors,agents,and employees to provide the services
required by this Agreement is for any reason denied,revoked,or not renewed.
Any such termination of this agree_nent under paragraph (a) shall be without prejudice to any
obligations or liabilities of either party already accrued prior to such termination.
b. CITY,by written notice of default(including breach of contract)to CONTRACTOR,may
terminate the whole or any part of this Agreement:
If CONTRACTOR fails to provide services called for by this agreement within the
time specified herein or any extension thereof,or
ii. If CONTRACTOR fails to perform any of the other provisions of this Agreement,
or so fails to pursue the work as to endanger performance of this agreement in
accordance with its terms,and after receipt of written notice from CITY, fails to
correct such failures within ten (10) days or such other period as CITY may
authorize.
The rights and remedies of CITY provided in the above clause related to defaults(ncluding breach
of contract)by CONTRACTOR shall not be exclusive and are in addition to any other rights and
remedies provided by law or under this Agreement.
ITCITY terminates this Agreement under paragraph(b),CONTRACTOR shall be entitled to receive
as full payment for all services satisfactorily rendered and expenses incurred,an amount which bears
the same ratio to the total fees specified in this Agreement as the services satisfactorily rendered by
CONTRACTOR bear to the total services otherwise required to be performed for such total fee;
provided,that the shall be deducted from such amount the amount of damages,if any,sustained by
CITY due to breach of contract by CONTRACTOR. Damages for breach of contract shall be those
allowed by Oregon law,reasonable and necessary attorney fees,and other costs of litigation at trial
and upon appeal.
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.
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14. FORCE N4AJEURE:
Neither ',CITY CONTRACTOR shall be considered in default because of any delays in
completion and responsibilities hereunder due to causes beyond the control and without fault or
negligence on the part of the parties so disenabled,including but not restricted to,an act of God or of
a public enemy,civil unrest,volcano,earthquake,fire,flood,epidemic,quarantine restriction,area-
wide strike,freight embargo,unusually severe weather or delay of subcontractor or supplies due to
such cause;provided that the parties so disenabled shall within ten(10)days from the beginning of
such delay, notify the other party in writing of the cause of delay and its probable extent. Such
notification shall not be the basis for a claim for additional compensation. Each party shall,however,
make all reasonable efforts to remove or eliminate such a cause of delay or default and shall,upon
cessation of the cause,diligently pursue performance of its obligation under the Agreement.
15. 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.
16. 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.
17. ERRORS:
CONTRACTOR shall perform such additional work as may be necessary to correct errors in the
work required under this Agreement without undue delays and without additional cost.
18. EXTRA(CHANGES)WORK:
Only the Contract Administrator may authorize extra (and/or changes) work. Failure of
CONTRACTOR to secure 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.
i 19. WARRANTIES:
i All work shall be guaranteed by CONTRACTOR for a period of one year after the date of final
acceptance of the work by the owner. CONTRACTOR warrants that all practices and procedures,
workmanship and materials shall be the best available unless otherwise specified in the profession.
3 Neither acceptance of the work nor payment therefore shall relieve CONTRACTOR from liability
under warranties contained in or implied by this Agreement.
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20. A ITORNEY S FEES:
In case suit or action is instituted to enforce the provisions of this 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.
21. 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 ofthe State of Oregon.
22. COivu L"tANCE 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.
23. CONFLICT BETWEEN TERMS:
It is fiirther 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.
24. SEVERABILITY:
In the event any provis;an or portion of this Agreement is held to be unenforceable or invalid by any
court of competent jurisdiction, the validity of the remaining terns and provisions shall not be
affected to the extent that it did not materially affect the intent of the parties when they entered into
the agreement.
25. 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.
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IN WITNESS WHEREOF,CITY has caused this Agreement to be executed by its duiy authorized
undersigned officer and CONTRACTOR has executed this Agreement on the date hereinabove first
® written.
ClP i OF-1 IG-'--Di
By: ��—�� _
City Manager
CONTRACTOR
By.
Contractor/Nam le
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