LEGAL SERVICES AGREEMENT

This Agreement for Services (Agreement) is between the City of Portland, Oregon (City) and Foley, Hoag (Counsel).

AGREEMENT:

1.  SCOPE OF COUNSEL SERVICES

Counsel shall provide services specifically to the City Attorney. Counsel shall provide those services set out in Exhibit A according to the schedule set out in Exhibit A.

2.  COMPENSATION AND BILLING AND PAYMENT PROCEDURE

(a)  The City shall pay Counsel for work performed under this Agreement . The payment shall be full compensation for work performed, for services rendered, and for all labor, materials, supplies, equipment, and incidentals necessary to perform the work and services.

(b)  Upon approval by the City Attorney of bills submitted by Counsel, the City shall compensate Counsel for services performed under this Agreement as follows:

(i) Counsel shall submit interim bills on a monthly basis and, for specific projects, to render a final bill at the conclusion of the matter. All bills are due and payable within thirty days. Although general overhead expenses are covered by Counsel’s fees, specific expenses such as consultant fees, filing and service fees, long distance telephone and facsimile charges, photocopying charges, courier charges, travel expenses, extraordinary secretarial or clerical overtime, and other such items will be billed as separate expense items.

(ii) Subject to annual review, Counsel shall bill its time as set out in Exhibit A.

(c)   The total compensation under this Agreement shall not exceed $355,000.00, (three hundred fifty five thousand dollars) unless authorized by City Council or the Purchasing Agent, as provided in Section 18 of this Agreement. An estimated budget for the work under this contract is set out in the scope of work, Exhibit A.

3.  EFFECTIVE AND TERMINATION DATES

This Agreement shall be effective as of January 5, 2006 and shall terminate as of January 4, 2007.

4.  EARLY TERMINATION OF AGREEMENT

(a) The City and Counsel, by mutual written agreement, may terminate this Agreement at any time.

(b) Either party may terminate this Agreement with thirty (30) days’ written notice to the other party.  

(c) In the event of early termination, all work product will become and remain the property of the City. Counsel shall provide all work product to the City Attorney upon request.

5.  PAYMENT ON EARLY TERMINATION

In the event of early termination of this Agreement under subsection 4(a) or (b), EARLY TERMINATION OF AGREEMENT, hereof, the City shall pay Counsel for work performed in accordance with the Agreement prior to the termination date.

6.  INDEMNIFICATION FOR PUBLIC LIABILITY AND PROPERTY DAMAGE

Counsel shall hold harmless, defend, and indemnify the City and the City’s officers, agents, and employees against all claims, demands, actions, and suits (including all attorney fees and costs) for personal injury or property damage brought against any of them arising from Counsel’s work or any subcontractor’s work under this Agreement. Notwithstanding the foregoing, this paragraph shall not apply to any claims, demands, actions or suits arising out of or relating to the adequacy or safety of the City’s drinking water supply.

7.  PROFESSIONAL LIABILITY INSURANCE:

(a) Counsel shall maintain professional liability insurance not less than $20 million (twenty million dollars).

(b) Counsel shall maintain on file with the City Auditor a certificate of insurance certifying the coverage required under subsection (a). The adequacy of the insurance shall be subject to the approval of the City Attorney. Failure to maintain professional liability insurance shall be cause for immediate termination of this Agreement by the City.

8.  WORKERS’ COMPENSATION INSURANCE

(a) Counsel agrees to maintain workers’ compensation insurance coverage for the duration of this Agreement. A certificate of insurance, or a copy of it, shall be attached to this Agreement as Exhibit C, if applicable, and shall be incorporated herein and made a term and part of this Agreement.

(b) In the event Counsel’s workers’ compensation insurance coverage is due to expire during the term of this Agreement, Counsel agrees to timely renew its insurance and Counsel agrees to provide the City of Portland such further certification of workers’ compensation insurance as renewals of said insurance occur.

(c) Counsel agrees to accurately complete the City of Portland's Questionnaire for Workers' Compensation Insurance and Qualification as an Independent Contractor prior to commencing work under this Agreement. Questionnaire is attached to this Agreement as Exhibit B and shall remain attached to this Agreement and becomes a part of it as if fully copied herein. Any misrepresentation of information on the Questionnaire by Counsel shall constitute a breach of this Agreement. In the event of breach pursuant to this subsection, City may terminate the Agreement immediately and the notice requirement contained in subsection 4(c), EARLY TERMINATION OF AGREEMENT, hereof shall not apply.

9.  SUBCONTRACTING

Counsel shall not subcontract its work under this Agreement, in whole or in part, without the written approval of the City. Counsel shall require any approved subcontractor to agree, as to the portion subcontracted, to fulfill all obligations of Counsel as specified in this Agreement. Notwithstanding City approval of a subcontractor, Counsel shall remain obligated for full performance hereunder, and the City shall incur no obligation other than its obligations to Counsel hereunder.

10.  ASSIGNMENT

Counsel shall not assign this Agreement, in whole or in part, or any right or obligation hereunder, without the prior written approval of the City.

11.  INDEPENDENT CONTRACTOR STATUS

 Counsel is engaged as an independent contractor and will be responsible for any federal, state, and local taxes and fees applicable to payments hereunder. Counsel, its subcontractors, and their employees, are not employees of the City and are not eligible for any benefits through the City, including without limitation federal social security, health benefits, workers' compensation, unemployment compensation, and retirement benefits.

12.  COMMENCEMENT OF WORK

Neither party is obligated to perform services under this Agreement until authorized by the City in accordance with its Charter, and until this Agreement is fully executed by the parties.

13.  CITY PROJECT MANAGER

The City Project Manager shall be Terence Thatcher, Deputy City Attorney, who is authorized to approve work and billings hereunder, to give notices referred to herein, to terminate this Agreement as provided herein, and to carry out any other City actions referred to herein.

14.  EQUAL EMPLOYMENT OPPORTUNITY

In the event Counsel provides goods or services to the City in the aggregate in excess of $2,500.00 per fiscal year, Counsel agrees it has certified with the City's Equal Employment Opportunity certification process.

15.  OREGON LAW AND FORUM

This Agreement shall be construed according to the law of the State of Oregon, and any litigation between the City and Counsel arising under this Agreement or out of work performed under this Agreement shall occur, if in the state courts, in the Multnomah County Court having jurisdiction thereof, and if in the federal courts, in the United States District Court for the District of Oregon.

16.  BUSINESS LICENSE

Counsel shall obtain a City of Portland business license as required by PCC Chapter 7.02. Counsel shall provide a business license number in the space provided at the end of this Agreement.

17.  AMENDMENTS

The City and Counsel may amend this Agreement at any time only by written amendment executed by the City and Counsel. Unless otherwise provided in the authorizing document, if any, any amendment that, individually or cumulatively in conjunction with previous amendments, increases the amount of compensation payable to Counsel in an amount of 25% or less of the original total amount of compensation in this Agreement may be approved by the City Attorney. Any amendment that increases compensation by more than 25% of the original amount of compensation in this agreement must be authorized by City Council. The Purchasing Agent or City Attorney may authorize any other amendment on behalf of the City.

18.  FUNDS

City certifies that sufficient funds are available and authorized for expenditure to finance the cost of this Agreement.

19.  NO THIRD PARTY BENEFICIARIES

Counsel and the City are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives, assigns, or provides any benefit or a right, whether directly, indirectly, or otherwise, to third persons.

COUNSEL:            CITY OF PORTLAND, OREGON

EXHIBIT A

SCOPE OF LEGAL SERVICES

 Counsel shall provide representation with respect to challenging the Long Term Enhanced Surface Water Treatment Rule, unofficially promulgated by the United States Environmental Protection Agency on December 15, 2005 (the “Rule”). Counsel will also provide the City general legal advice on compliance with the Rule or any application the City might make for a variance from or waiver of the Rule. For accounting purposes, the two matters will be billed to separate client accounts.

 Counsel’s work challenging the Rule shall include, but not be limited to, conducting necessary research, consulting with outside experts, if required, preparing necessary pleadings and briefs, and presenting oral argument. The estimated budget assumes the following: (1) any challenge will be brought in the United States Court of Appeals for the District of Columbia and will be limited to review of the administrative record; (2) the City will provide all necessary information concerning its drinking water system on a timely basis; (3) the City will provide review of and comment on draft documents on a timely basis; (4) Counsel will not have to coordinate with more than one amicus curiae and will not have to draft separate responses to pleadings of amicus curiae; (5) no appeal to the Supreme Court is covered under this contract.

 Total billings for the challenge to the Rule are expected not to exceed $280,000, unless use of an expert is required. In that case, total billings are not expected to exceed $305,000. The current budget for general advice on other LT2 compliance issues is, therefore, approximately $50,000.

RATES

John Stevens, Partner    $535

Jonathan Ettinger, Partner  $415

Karen Crocker  , Associate  $240

James Langan, Associate  $220

Other Associates    $220 to $360

Legal Assistants    $115 to $170

Case Assistants    $70

EXHIBIT B

INDEPENDENT CONTRACTOR CERTIFICATION STATEMENT

SECTION A

CONTRACTOR CERTIFICATION I, undersigned, am authorized to act on behalf of entity designated below, hereby certify that entity has current Workers' Compensation Insurance.

 Signature_________________________________ Date_________________________ Entity_______________________

_____________________________________________________________________________________________________________________

If entity does not have Workers' Compensation Insurance, City Project Manager and Contractor complete the remainder of this form.

SECTION B

ORS 670.600 Independent contractor; standards. As used in various provisions of ORS Chapters 316, 656, 657, and 701, an individual or business entity that performs labor or services for remuneration shall be considered to perform the labor or services as an "independent contractor" if the standards of this section are met. The contracted work meets the following standards:

1.  The individual or business entity providing the labor or services is free from direction and control over the means and manner of providing the labor or services, subject only to the right of the person for whom the labor or services are provided to specify the desired results;

2.  The individual or business entity providing labor or services is responsible for obtaining all assumed business registrations or professional occupation licenses required by state law or local government ordinances for the individual or business entity to conduct the business;

3.  The individual or business entity providing labor or services furnishes the tools or equipment necessary for performance of the contracted labor or services;

4.  The individual or business entity providing labor or services has the authority to hire and fire employees to perform the labor or services;

5.  Payment for the labor or services is made upon completion of the performance of specific portions of the project or is made on the basis of an annual or periodic retainer.

 ____________________________________________________________________  ____________________________

 Project Manager Signature              Date

____________________________________________________________________________________________________________________

SECTION C

 Independent contractor certifies he/she meets the following standards:

1.  The individual or business entity providing labor or services is registered under ORS Chapter 701, if the individual or business entity provides labor or services for which such registration is required;

2.  Federal and state income tax returns in the name of the business or a business Schedule C or farm Schedule F as part of the personal income tax return were filed for the previous year if the individual or business entity performed labor or services as an independent contractor in the previous year; and

3.  The individual or business entity represents to the public that the labor or services are to be provided by an independently established business. Except when an individual or business entity files a Schedule F as part of the personal income tax returns and the individual or business entity performs farm labor or services that are reportable on Schedule C, an individual or business entity is considered to be engaged in an independently established business when four or more of the following circumstances exist. Contractor check four or more of the following:

 _____  A.  The labor or services are primarily carried out at a location that is separate from the residence of an individual who performs the labor or services, or are primarily carried out in a specific portion of the residence, which portion is set aside as the location of the business;

 _____  B.  Commercial advertising or business cards as is customary in operating similar businesses are purchased for the business, or the individual or business entity has a trade association membership;

 _____  C.  Telephone listing and service are used for the business that is separate from the personal residence listing and service used by an individual who performs the labor or services;

 _____  D.  Labor or services are performed only pursuant to written contracts;

 _____  E.  Labor or services are performed for two or more different persons within a period of one year; or

 _____  F.  The individual or business entity assumes financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omission insurance or liability insurance relating to the labor or services to be provided.

 ____________________________________________________________________  ____________________________

 Contractor Signature              Date

EEO CERTIFICATION

If your firm has not done so, please go to the following web site to become EEO Certified with the City of Portland. This certification is required for all agencies doing business with the City of Portland.

http://cityofportland.ebidsystems.com/ or

http://www.portlandonline.com/omf/index.cfm?a=8516&&c=27353