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HomeMy WebLinkAbout21- Judicial Services Agreement - Kathleen Brandis C~ �•L JUDICIAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 9th day of March, 2021 and is retroactive to the 61h day of October("Effective Date"),by and between the BOZEMAN MUNICIPAL COURT of the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 615 South 16th, Suite 123, Bozeman MT 59715, hereinafter referred to as "Court," and, Kathleen Brandis, hereinafter referred to as "Judge."The Court and Judge may be referred to individually as"Party"and collectively as"Parties." In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: Court agrees to enter this Agreement with Judge and the Judge agrees to perform, on an interim basis, for Court the services of a municipal court judge pursuant to the laws of the City of Bozeman and the State of Montana. 2. Term/Effective Date: This Agreement is effective upon the Effective Date and will expire on the 3 1"day of December 2021,unless earlier terminated in accordance with this Agreement. 3. Scope of Services/Access to City Network and Email: Judge will perform the work and provide the services of a municipal court judge. During the term of this Agreement, the City and the Court shall make available to the Judge and the Judge must use a City email account, City computer equipment, and provide access to the City's computer network. Judge must comply with all requirements of the City's IT Policies. Judge must contact Scott McMahan, City's Information Technology Director to set up email and access to the City's network. 4. Payment: Court agrees to pay Judge the amount specified below. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by Judge after written request by the Court, and will become an additional charge over and above the amount listed below The Court must agree in writing upon any additional charges. The Court agrees to the pay the Judge according to the following: First hour rate= $60.00 Professional Services Agreement for Interim Municipal Court Judge Page 1 of 8 Hourly rate (after 1"hour) _ $45.00 No minimum number of hours per week. Suggested Maximum of 80 hours per month. Judge to submit hours worked weekly billable in increments of 15 minutes. [First hour is paid at $60 (from 0-60 minutes)] 5. Judee's Representations: To induce Court to enter into this Agreement,Judge makes the following representations: a. Judge has familiarized itself with the nature and extent of this Agreement, with the legal qualifications for holding the office of judge of the Court, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of this Agreement. b. Judge represents and warrants to Court that it has the experience and ability to perform the services required by this Agreement;that it will perform the services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark,privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. 6. Independent Contractor Status/Labor Relations: The parties agree that while the Judge has been duly appointed as a municipal court judge and is therefore considered an official of the City, Judge is an independent contractor for purposes of this Agreement and the services hereunder and is not to be considered an employee of the Court for any purpose. Judge is not subject to the terms and provisions of the City's personnel policies handbook and may not be considered a City employee for workers' compensation or any other purpose. Other than for the judicial services rendered,Judge is not authorized to represent the Court or the City or otherwise bind the Court or the City in any dealings between Judge and any third parties. Judge shall comply with the applicable requirements of the Workers' Compensation Act,Title 39, Chapter 71, MCA. Judge shall maintain workers' compensation coverage for itself during the term of this Agreement. Judge shall furnish the City with copies showing one of the following: (1) a binder for workers' compensation coverage by an insurer licensed and authorized to provide workers' Professional Services Agreement for Interim Municipal Court Judge Page 2 of 8 compensation insurance in the State of Montana; or (2) proof of exemption from workers' compensation granted by law for independent contractors. 7. Indemnity/Waiver of Claims/Insurance: Having been duly appointed by the Chief Municipal Court Judge to the position of municipal court judge on an interim basis, the City will provide risk coverage for the Judge for the Judge's services under this Agreement through the Montana Municipal Interlocal Authority's Memorandum of Liability Coverage, Section 5.2.1, subject to all applicable limitations and exclusions. As an independent contractor, as described in Section 6, above, Judge agrees Judge will not be provided workers' compensation coverage by the City. As such, Judge must provide the Court with evidence of compliance with the Montana Workers' Compensation Act. Judge waives any and all claims and recourse against the Court and the City, including the right of contribution for loss or damage to person or property arising from, growing out of, or in any way connected with or incident to the performance of this Agreement except "responsibility for [the City's or Court's] own fraud, for willful injury to the person or property of another, or for violation of law,whether willful or negligent" as per 28-2-702, MCA. These obligations shall survive termination of this Agreement and the services performed hereunder. 8. Termination for Contractor's Fault: a. If Judge refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the Court may, by written notice, terminate this Agreement and the Judge's right to proceed with all or any part of the work ("Termination Notice Due to Judge's Fault"). The Court may then take over the work and complete it, either with its own resources or by appointing another person to perform the services of a municipal court judge. b. In the event of a termination pursuant to this Section 8, Judge shall be entitled to payment only for those services Judge actually rendered. C. Any termination provided for by this Section 8 shall be in addition to any other remedies to which the Court or the City may be entitled under the law or at equity. d. In the event of termination under this Section 8, Judge shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost Professional Services Agreement for Interim Municipal Court Judge Page 3 of 8 productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 9. Termination for Court's Convenience: a. Should conditions arise which, in the sole opinion and discretion of the Court, make it advisable to the Court to cease performance under this Agreement, the Court may terminate this Agreement by written notice to Judge ("Notice of Termination for Court's Convenience"). The termination shall be effective in the manner specified in the Notice of Termination for Court's Convenience and shall be without prejudice to any claims that the Court or City may otherwise have against Judge. b. Upon receipt of the Notice of Termination for Court's Convenience, unless otherwise directed in the Notice, the Judge shall immediately cease performance under this Agreement and make every reasonable effort to refrain from continuing work, incurring additional expenses or costs under this Agreement and shall immediately cancel all existing orders or contracts upon terms satisfactory to the Court. Judge shall do only such work as may be necessary to preserve, protect, and maintain work already completed or immediately in progress. C. In the event of a termination pursuant to this Section 9, Judge is entitled to payment only for those services Judge actually rendered on or before the receipt of the Notice of Termination for Court's Convenience. d. The compensation described in Section 9(c) is the sole compensation due to Judge for its performance of this Agreement. Judge shall, under no circumstances, be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature arising, or claimed to have arisen, as a result of the termination. 10. Limitation ort Judge's Damages; Time for Asserting Claim: a. In the event of a claim for damages by Judge under this Agreement, the Judge's damages shall be limited to contract damages and Judge hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event Judge wants to assert a claim for damages of any kind or nature, Judge shall provide Court with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty(30) days Professional Services Agreement for Interim Municipal Court Judge Page 4 of 8 of the facts and circumstances giving rise to the claim. In the event Judge fails to provide such notice, Judge shall waive all rights to assert such claim. 11. Representatives and Notices: a. Court's Representative: The City's Representative for the purpose of this Agreement shall be Karl P. Seel or such other individual as Court shall designate in writing. Whenever approval or authorization from or communication or submission to Court is required by this Agreement, such communication or submission shall be directed to the Court's Representative and approvals or authorizations shall be issued only by such Representative; provided, however, that in exigent circumstances when Court's Representative is not available, Judge may direct its communication or submission to other designated Court personnel or agents as designated by the Court in writing and may receive approvals or authorization from such persons. b. Contractor's Representative: The Contractor's Representative for the purpose of this Agreement shall be Kathleen Brandis or such other individual as Judge shall designate in writing. Whenever direction to or communication with Judge is required by this Agreement, such direction or communication shall be directed to Judge's Representative; provided, however, that in exigent circumstances when Judge's Representative is not available, Court may direct its direction or communication to other designated Judge personnel or agents. C. Notices: All notices required by this Agreement shall be in writing and shall be provided to the Representatives named in this Section. Notices shall be deemed given when delivered, if delivered by courier to Party's address shown above during normal business hours of the recipient; or when sent, if sent by email or fax (with a successful transmission report) to the email address or fax number provided by the Party's Representative; or on the fifth business day following mailing, if mailed by ordinary mail to the address shown above, postage prepaid. 12. Permits: Judge shall provide all notices, comply with all applicable laws, ordinances, rules, and regulations, obtain all necessary permits, licenses, inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. Judge is not required to obtain a City of Bozeman business license. 13. Laws and Regulations: Judge shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances and the Judicial Code of Ethics. 13. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. The Judge may not subcontract or Professional Services Agreement for Interim Municipal Court Judge Page 5 of 8 assign Contractor's rights, including the right to compensation or duties arising hereunder, without the prior written consent of the City. 14. Nondiscrimination and Equal Pay: Judge agrees the Judge's performance of this Agreement will comply with all applicable state and federal anti-discrimination laws and regulations. Judge will not discriminate against a person in the performance of services under this Agreement because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity,or physical or mental disability.Judge shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2,United States Code, and all regulations promulgated thereunder. Judge represents it is, and for the term of this Agreement will be, in compliance with the requirements of the Equal Pay Act of 1963 and Section 39-3-104,MCA(the Montana Equal Pay Act). Judge must report to the City any violations of the Montana Equal Pay Act that Judge has been found guilty of within 60 days of such finding for violations occurring during the term of this Agreement. 15. Intoxicants;DOT Drug and Alcohol Reulations/Safety and Training: Judge shall not permit or suffer the introduction or use of any intoxicants,including alcohol or illegal drugs while on City property or in the performance of any activities under this Agreement. Judge acknowledges it is aware of and shall comply with its responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. The City and the Court shall have the right to request proof of such compliance and Judge shall be obligated to furnish such proof. 16. Reports/Accountability/Public Information:Judge agrees to develop and/or provide documentation as requested by the Court demonstrating Judge's compliance with the requirements of this Agreement. Judge shall allow the City and the Court, its auditors, and other persons authorized by the City or Court to inspect and copy its books and records for the purpose of verifying that the reimbursement of monies distributed to Judge pursuant to this Agreement was in compliance with this Agreement and all applicable provisions of federal, state, and local law. Judge shall not issue any statements, releases or information for public dissemination without prior approval of the Court. 17. Non-Waiver: A waiver by either party of any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party's right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 18. Attorney's Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice Professional Services Agreement for Interim Municipal Court Judge Page 6 of 8 required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City Attorney's Office staff. 19. Taxes: Judge is obligated to pay all applicable taxes of any kind or nature related to the performance of this Agreement. 20. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty(30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 21. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 22. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 23. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 24. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 25. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 26. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. Professional Services Agreement for Interim Municipal Court Judge Page 7 of 8 27. Integration: This Agreement constitutes the entire agreement of the parties. Covenants or representations not contained herein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 28. Consent to Electronic Signatures: The Parties have consented to execute this Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act, Title 30, Chapter 18, Part 1, MCA. 29. Extensions: this Agreement may,upon mutual agreement,be extended for a period of one year by written agreement of the Parties. In no case, however,may this Agreement run longer than June 30,2022. **** END OF AGREEMENT EXCEPT FOR SIGNATURES **** IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written or as recorded in an electronic signature. BOZEMAN MUNICIPAL COURT KATHLEEN BRANDIS By By Kar . Seel, Municipal Court Judge Kathleen Brandis Municipal Court Judge, Pro Tem Professional Services Agreement for Interim Municipal Court Judge Page 8 of 8