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O'Donnell, Ramis, Crew, Corrigan and Bachrach - Legal Representation - Amendment #1 a � AMENDMENT CITY OF TIGARD, OREGON PERSONAL SERVICES CONTRACT This constitutes an amendment to that AGREEMENT made and entered into on the 9``' day of December, 1997 by and between the CITY OF TIGARD, a municipal corporation of the State of Oregon, hereinafter called CITY, and O'Donnell, Ramis, Crew, Corrigan and Bachrach, LLP, hereinafter called CONTRACTOR. Section 10, is revised to substitute the following language "CONTRACTOR: Timothy V. Ramis O'Donnell Ramis Crew Corrigan& Bachrach, LLP 1727 NW Hoyt Street Portland, OR 97209" Signature Block is revised to substitute the following language: "CONTRACTOR By: , Timothy V. Ramis Date: " Exhibit A, Scope of Services, Section A is revised to substitute the following language: "A. CONTRACTOR will be responsible for CITY legal representation as authorized by the City Council and/or City Manager. Authorization to perform specific tasks will come from the Mayor, City Council, City Manager or other persons directly authorized by the Mayor, City Council or the City Manager. Timothy V. Ramis will act as lead attorney. Timothy V. Ramis is referred to herein as the"City Attorney." Page 1 -PERSONAL SERVICES CONTRACT AMENDMENT r � IN WITNESS WHEREOF, CITY has caused this Amendment to Agreement to be executed by its duly authorized undersigned officer and ONTRACTOR has executed this Amendment to Agreement on the date written belo CITY OF ARD By: Mayor Da By: ity Manager Date: 3&Zm CONTRACTOR By: , Timothy V. Ramis Date: ( Jj tvr/tigard/council/psaamend(2/17/98)(srb) Page 2 - PERSONAL SERVICES CONTRACT AMENDMENT - f CITY OF TIGARD, OREGON PERSONAL SERVICES CONTRACT THIS AGREEMENT made and entered into this 41;�day of � 19q!(by and between the CITY OF TIGARD, a municipal corporation of the State of Oregon, hereinafter called CITY, and O'Donnell, Ramis, Crew, Corrigan and Bachrach, LLP, hereinafter called CONTRACTOR. WITNESSETH WHEREAS, CITY has need for the services of a law firm with the particular training, ability, knowledge, and experience possessed by CONTRACTOR; and WHEREAS, CITY has determined that O'Donnell, Ramis, Crew, Corrigan and Bachrach, LLP 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. LEGAL SERVICES TO BE PROVIDED: CONTRACTOR agrees to complete work which is detailed in Exhibit"A", and`by this reference made a part hereof. 2. EFFECTIVE DATE AND DURATION: This Agreement shall become effective beginning January 1, 1998, and shall expire, unless ---otherwise terminated or extended, on December 31, 2000. 3. COMPENSATION: a. CITY agrees to pay CONTRACTOR in accordance with this section for performance of services described herein. Payment shall be based upon a detailed monthly billing showing work performed and identifying specific legal matters worked on. PERSONAL SERVICES CONTRACT - Page 1 b. Hourly Rates: Effective January 1, 1998 forward the hourly rates shall be as follows: Partners $135.00 Sr. Associates & Special Counsel $125.00 Associates $115.00 Law Clerks/Legal Assistants $70.00 Secretarial $45.00 The parties may by mutual agreement adjust these rates. C. The direct cost for such items as long distance charges, messenger services, printing, mileage, copy charges (25 cents per page) and the like will be billed to CITY, with no markup or overhead charge added, except that mileage charges for trips between CONTRACTOR's office and CITY offices shall not be charged to the CITY. d. 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 statement of services. Payment shall not be considered acceptance or approval of any work or waiver of any defects therein. e. Payment will be made in installments based on CONTRACTOR's invoice, subject to the approval of the City Manager, and not more frequently-than-monthly. Payment shall be made only for work actually completed as of the date of the invoice. f. 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. PERSONAL SERVICES CONTRACT -Page 2 5. ASSIGNVfENT/DELEGATION: Neither party shall assign, sublet or transfer any interest in or duty under this Agreement without the written consent of the other and not assignment shall be of any force or effect whatsoever unless and until the other party has so consented. If CITY agrees to assignment of tasks to a subcontractor, 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 finding and to the full extent of any payments that CITY is required or 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, 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. C. CONTRACTOR certifies that it currently has a CITY business license or will obtain one prior to delivering services under this Agreement. d. CONTRACTOR is not an officer, employee, or agent of the CITY as those terms are used in ORS 30.265. PERSONAL SERVICES CONTRACT - Page 3 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. CONTRACTOR agrees to indemnify and defend the CITY, its officers, agents and employees and hold them harmless from any and all liability, causes of action, claims, losses, damages,judgments or other costs or expenses including attorney's fees and witness costs and (at both trial and appeal level, whether or not a trial or appeal ever takes place) that may be asserted by any person or entity which in any way arise from, during or in connection with the performance of the work described in this contract, except liability arising out of the sole negligence of the CITY and its employees. Such indemnification shall also cover claims brought against the CITY under state or federal worker's compensation laws. If any aspect of this indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this indemnification. 8. INSURANCE: a. CONTRACTOR, and its subcontractors, shall maintain insurance acceptable to CITY in full force and effect throughout the term of this contract. Such insurance shall cover all risks arising directly or indirectly out of CONTRACTOR's activities or work hereunder, including the operations of its subcontractors of any tier. Such insurance shall include provisions that such insurance is primary insurance with ---- respect-to the interests of CITY and that any other insurance maintained-by-C-I-T-Y— is excess and not contributory insurance with the insurance required hereunder. b. The policy or policies of insurance maintained by CONTRACTOR shall provide at least the following limits and coverages: i. Commercial General Liability Insurance CONTRACTOR shall obtain, at CONTRACTOR's expense, and keep in effect during the term of this contract, Comprehensive General Liability Insurance covering Bodily Injury and Property Damage on an"occurrence" form (1986 ISO or equivalent). This coverage shall include Contractual Liability insurance for the indemnity provided under this contract. The following insurance will be carried: PERSONAL SERVICES CONTRACT -Page 4 i Coverage Limit General Aggregate 2,000,000 Each Occurrence 1,000,000 ii. Professional Liability Insurance CONTRACTOR shall obtain, at CONTRACTOR's expense, and keep in effect during the term of this contract, Professional Liability Insurance. This coverage shall include Annual Aggregate&Per Occurrence limits of$2,000,000 per attorney. iii. Commercial Automobile Insurance CONTRACTOR shall obtain, at CONTRACTOR's expense, and keep in effect during the term of this contract, "Symbol 1" Commercial Automobile Liability coverage. The Combined Single Limit per occurrence shall not be less than $1,000,000. iv. Workers' Compensation Insurance The CONTRACTOR and all employers providing work, labor or materials under this contract are subject employers under the Oregon Workers' Compensation Law and shall comply with ORS 656.017, which requires them to provide workers' compensation coverage that satisfies Oregon law for all their subject workers. V. Additional Insured Provision The City of Tigard, Oregon, its officers, directors, and employees shall be added as additional insureds with respect to this contract. The General Liability Insurance policy will be endorsed to show this additional coverage. vi. Notice of Cancellation There shall be no cancellation, material change, exhaustion of aggregate limits or intent not to renew insurance coverage without 30 days written notice to the CITY. Any failure to comply with this provision will not affect the insurance coverage provided to the CITY. The 30 days notice of cancellation provision shall be physically endorsed on to the policy. PERSONAL SERVICES CONTRACT - Page 5 vii. Insurance Carrier Rating Coverages (other than Workers' Compensation) provided by the CONTRACTOR must be underwritten by an insurance company deemed acceptable by the CITY. The CITY reserves the right to reject all or any insurance carrier(s) with an unacceptable financial rating. viii. Certificates of Insurance As evidence of the insurance coverage required by this contract, the CONTRACTOR shall furnish a Certificates of Insurance to the CITY. No contract shall be effected until the required certificates have been received and approved by the CITY. The certificate will specify and document all provisions within this contract. A renewal certificate will be sent to the address listed in this section 10 days prior to coverage expiration. ix. Primary Coverage Clarification All parties to this contract hereby agree that the CONTRACTOR's coverage will be primary in the event of a loss. CONTRACTOR's insurance policy shall contain provisions that such policies shall not be canceled or their limits of liability reduced without thirty (30) days prior notice to CITY. A copy of each insurance policy, certified as a true copy by an authorized representative of the issuing insurance company, or at the discretion of CITY, in lieu thereof, a certificate in form satisfactory to CITY certifying to the issuance of such insurance shall be forwarded to: - L-oreen-R:-Mills - Risk Manager 13125 SW Hall Blvd. Tigard, OR. 97223 Such policies or certificates must be delivered prior to commencement of the work. Ten days cancellation notice shall be provided CITY by certified mail to the name at the address listed above in event of cancellation or non-renewal of the insurance. The procuring of such required insurance shall not be construed to limit CONTRACTOR's liability hereunder. Notwithstanding said insurance, CONTRACTOR shall be obligated for the total amount of any damage, injury, or loss caused by negligence or neglect connected with this contract. PERSONAL SERVICES CONTRACT - Page 6 9. 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 to 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. 10 METHOD AND PLACE OF GIVING NOTICE, SUBMITTING BILLS AND MAKING PAYMENTS. All notices shall be made in writing and may be given by personal delivery or by mail. Notices sent by mail should be addressed as follows: CITY: City Manager City of Tigard 13125 SW Hall Blvd. Tigard, OR. 97223 CONTRACTOR: Pamela J. Beery O'Donnell Ramis Crew Corrigan & Bachrach, LLP 1727 NW Hoyt Street Portland, OR 97209 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 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 written notice pursuant to this paragraph. All bills and payments shall be sent to the CITY's Finance Director. PERSONAL SERVICES CONTRACT - Page 7 11. MERGER: This writing is intended both as a final expression of the Agreement between the parties with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement. No modification of this Agreement shall be effective unless and until it is made in writing and signed by both parties. 12. 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. Termination by CITY must be done by motion of the City Council. 13. 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. ii. If federal or state regulations or guidelines are modified, changes, or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this Agreement.- -- 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. iv. If CONTRACTOR becomes insolvent, if voluntary or involuntary petition in bankruptcy is filed by or against CONTRACTOR, if a receiver or trustee is appointed for CONTRACTOR, or if there is an assignment for the benefit of creditors of CONTRACTOR. 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. PERSONAL SERVICES CONTRACT - Page 8 b. CITY, by written notice of default (including breach of contract) to CONTRACTOR, may terminate the whole or any part of this Agreement: i. 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. iii. If CONTRACTOR fails to eliminate a conflict as described in Section 11 of this Agreement. The rights and remedies of CITY provided in the above clause related to defaults (including 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. If CITY 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 or be performed for such total fee; provided, that there 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. 14. ACCESS TO RECORDS: CITY shall have access to books, documents, papers and records of CONTRACTOR that are directly pertinent to this Agreement for the purpose of making audits, examinations, excerpts and transcripts. 15. CITY ATTORNEY BAR MEMBERSHIP/OCAA MEMBERSHIP REQUIREMENTS: City Attorney is responsible for maintaining City Attorney's professional standing as a member of the Oregon State Bar Association and the Oregon City Attorney's Association. PERSONAL SERVICES CONTRACT -Page 9 16. 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. 17. ATTORNEYS' 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. 18 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. 19. COMPLIANCE WITH APPLICABLE LAW: CONTRACTOR shall comply with all federal, state and local laws and ordinances, applicable public contracts, and to the work to be done under this contract. 20 CONFLICT BETWEEN TERMS: It is further expressly agreed by and between the parties hereto that should there by 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. 21. AUDIT: CONTRACTOR shall maintain records to assure conformance with the terms and conditions of this Agreement, and to assure adequate performance and accurate expenditures within the contract period. CONTRACTOR agrees to permit CITY, 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. PERSONAL SERVICES CONTRACT -Page 10 22. 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 no way be affected or invalidated thereby. 23. COMPLETE AGREEMENT: This Agreement and attached exhibits 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 GARD By: / Mayor D 'e��� l By. Manager Date: / 2 CONTRACTOR By: `/� , Pamela J. BeeryPAaLTw►t'R- Date: 7 By: Timothy V. Ramis Date: I y zz f 7 PERSONAL SERVICES CONTRACT - Page 11 EXHIBIT "A" SCOPE OF SERVICES A. CONTRACTOR will be responsible for CITY legal representation as authorized by the City Council and/or City Manager. Authorization to perform specific tasks will come from the Mayor, City Council, City Manager or other persons directly authorized by the Mayor, City Council or the City Manager. Pamela J. Beery will act as lead attorney. Timothy V. Ramis is referred to herein as the"City Attorney". B. Unless otherwise specified by the Mayor, City Council or the City Manager, CONTRACTOR will be responsible for: i. Legal aspects of general administration of CITY business, including preparing and providing legal opinions, assist with establishment of correct procedures, drafting and reviewing ordinances, resolutions, contracts, orders, agreements, and other legal documents, and related tasks needed to support CITY personnel, the Council and Commissions. ii. Training of nonlegal personnel in the performance of legally related tasks in order to reduce legal expenses. iii. Regular attendance at City Council meetings and attendance at other municipal meetings on request. iv. Municipal Court prosecution. V. Review City Council packets and provide advice prior to meetings. Review - - Planning Commission packets when requested and provide timely advice prior to meetings. vi. Ensure that all current and future codes and ordinances are in compliance with state and federal laws, current and future. C. Legal activities such as complex litigation and special project assignments which fall outside of the above categories, and which would include costs exceeding the projections of the City's budget for legal services, must be authorized by the City Council. City Attorney and the City Manager will regularly review the level of expenditures on legal services and will prioritize projects in order to stay within the budgeted amounts. PERSONAL SERVICES CONTRACT -Page 12 D. The City Attorney will coordinate with the City Manager and department heads, but within the chain of command shall report directly to the City Council. In this regard, in the event a conflict develops between the Council and City Manager, the City Attorney will represent the Council but will notify the City Manager at first knowledge of a conflict. E. The City reserves the right in appropriate situations to retain separate outside counsel. It is recognized that the City presently utilizes other law firms to provide representation in personnel issues, labor relations, and water related matters (i.e., water rights, water supply). pjb/acm/90024/cityatty.ps3(12/3/97) PERSONAL SERVICES CONTRACT - Page 13