Exhibit A to Ordinance

LEGAL SERVICES AGREEMENT

This Agreement for Services (Agreement) is between the City of Portland, Oregon (City) and Kirkpatrick & Lockhart Preston Gates Ellis LLP (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 at a maximum average rate not to exceed $400 per hour. The total compensation plus reimbursement under this Agreement shall not exceed $1,000,000.00, unless authorized by City Council or Purchasing Agent, as provided in Section 18 of this Agreement.

3.  EFFECTIVE AND TERMINATION DATES

This Agreement shall be effective as of January 15, 2007 and shall terminate as of January 15, 2010.

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) brought against any of them arising from Counsel's work or any subcontractor's work under this Agreement.

7.  INDEMNIFICATION FOR PROFESSIONAL LIABILITY

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) brought against any of them arising from Counsel's negligent work or any subcontractor's negligent work under this Agreement.

8.  PROFESSIONAL LIABILITY INSURANCE:

(a) Counsel shall maintain professional liability insurance as required by the Oregon State Bar, and not less than the limits of the Oregon Tort Claims Act, applicable to the City unless otherwise approved by the City Attorney. The insurance shall provide that the insurance shall not terminate or be canceled without thirty (30) days written notice first being given to the City Auditor.

(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.

9.  WORKERS' COMPENSATION INSURANCE

(a) Counsel, 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. 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. Counsel further agrees to maintain workers' compensation insurance coverage for the duration 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, either as a carrier-insured employer or a self-insured employer as provided by Chapter 656 of the Oregon Revised Statutes, before its expiration, 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.

10.  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. Counsel agrees that if subcontractors are employed in the performance of this Agreement, Counsel and its subcontractors are subject to the requirements and sanctions of ORS Chapter 656.

11.  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.

12.  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.

13.  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.

14.  CITY PROJECT MANAGER

The City Project Managers shall be Linda Meng, City Attorney and Eric Johansen, Debt Manager, who are 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.

15.  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.

16.  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.

17.  BUSINESS LICENSE

Counsel shall obtain a City of Portland business license as required by PCC § 7.06.010 prior to beginning work under this Agreement. Counsel shall provide a business license number in the space provided at the end of this Agreement.

18.  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 increases the amount of compensation payable to Counsel in an amount of 25% or less of the original amount of compensation in this Agreement may be approved by the City Attorney and the Purchasing Agent. 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.

19.  FUNDS

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

COUNSEL:            CITY OF PORTLAND, OREGON

EXHIBIT A

SCOPE AND DURATION OF LEGAL SERVICES

During the course of the three-year engagement period, Counsel may be asked to provide services for City borrowings, and matters related to those borrowings. Borrowings for which services may be provided include, but are not limited to:

1.  Limited Tax General Obligation and/or Revenue Bonds

2.  Unlimited Tax General Obligation Bonds

3.  Limited Tax Improvement Bonds

4.  Revenue Bonds

•  Water

•  Sewer

•  Gas Tax

•  Parking

•  Housing

•  Other

5.  Urban Renewal (Tax Increment) Bonds

6.  Tax Anticipation Notes and/or Bond Anticipation Notes

7.  Lines of Credit

8.  Tax Exempt Commercial Paper

9.  Conduit Public/Private Offerings

Counsel may also be asked to advise on:

1.  Current or advance refundings,

2.  Transactions involving the use of taxable, variable rate, or subordinate lien debt,

3.  Transactions involving the use of derivative products (e.g., interest rate swaps or other interest rate exchange agreements), and

4.  Transactions using credit enhancement, liquidity facilities, or hedging devices (e.g., interest rate caps).

Specific tasks that Counsel may be asked to undertake include (but are not limited to) the following:

•  Provide general legal advice pertinent to the City’s financing programs and activities

•  Assist with the initial debt issuance planning process and preliminary debt structuring

•  Prepare authorizing ordinances, escrow agreements, notices of sale, and other documents required for the issuance of bonds and notes

•  Coordinate bond and note closings and prepare and distribute transcript documents

•  Advise the City on ongoing disclosure requirements

•  Advise the City pertaining to IRS audits or other federal regulatory initiatives

•  Assist with conduit borrowings

•  Provide legal advice pertaining to use of various municipal financing tools, such as hedging instruments and interest rate swaps

•  Advise the City as to the consequences of local, state, and federal tax law and regulations affecting tax exempt financings

•  Advise the City as to the consequences of voter initiatives, and constitutional or legislative changes affecting debt financing activities

•  Prepare legislation in support of the City’s financing activities

•  Provide litigation support, if required

•  Advise the City on legal issues pertaining to the use of new technologies for bond sales, disclosure and investor relations (e.g., web site)

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

EXHIBIT C

INSURANCE (The Project Manager must answer and initial 2, 3, and 4 below)

During the term of this contract Contractor shall maintain in force at its own expense, each insurance noted below:

1.  Workers Compensation insurance in compliance with ORS 656.017, which requires subject employers to provide Oregon workers' compensation coverage for all their subject workers (contractors with one or more employees, unless exempt under ORS 656.027).

2.  __Ö___ Required and attached or Waived by City Attorney :_______

General Liability insurance with a combined single limit of not less than $500,000 each occurrence for Bodily Injury and Property Damage. It shall include contractual liability coverage for the indemnity provided under this contract, and shall provide that City of Portland, and its agents, officers, and employees are Additional Insured but only with respect to the Contractor's services to be provided under this Contract:

3.  __Ö___ Required and attached or Waived by City Attorney : _______                

Automobile Liability insurance with a combined single limit of not less than $500,000 each occurrence for Bodily Injury and Property Damage, including coverage for owned, hired, or nonowned vehicles, as applicable:

4.  ___Ö__ Required and attached or Waived by City Attorney : ______

Professional Liability insurance with a combined single limit of not less than $1,000,000 each claim, incident, or occurrence. This is to cover damages caused by error, omission or negligent acts related to the professional services to be provided under this contract.

5.  On all types of insurance. There shall be no cancellation, material change, reduction of limits, or intent not to renew the insurance coverage(s) without 30-days written notice from the Contractor or its insurer(s) to the City.

6.  Certificates of insurance. As evidence of the insurance coverages required by this contract, the Contractor shall furnish acceptable insurance certificates to the City at the time contractor returns signed contracts. The certificate will specify all of the parties who are Additional Insured and will include the 30-day cancellation clause that provides that the insurance shall not terminate or be cancelled without 30 days written notice first being given to the City Auditor. Insuring companies or entities are subject to City acceptance. If requested, complete policy copies shall be provided to the City. The Contractor shall be financially responsible for all pertinent deductibles, self-insured retentions, and/or self-insurance.

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