City Auditor - City Recorder - Council Ordinance - 178012 Nazi Holocaust public memorial agreements exhibit A

CITY OF PORTLAND

BUREAU OF PARKS AND RECREATION

REVOCABLE PERMIT # 2003-17

CONSTRUCTION OF HOLOCAUST MEMORIAL – WASHINGTON PARK

This Revocable Permit is made October _________, 2003, by and between the City of Portland, Oregon, a municipal corporation of the State of Oregon acting through its Bureau of Parks and Recreation (City) and the American Jewish Committee (AJC), a non-profit organization of the State of New York, with a chapter office in the State of Oregon.

Recitals:

WHEREAS, the City is the owner of several acres of real property known as Washington Park (Park), located in SW Portland, a specific portion of which is legally described as 1N 1E Section 32, tax lot 100, Multnomah County, Oregon; and,

WHEREAS, the AJC is one of the active partners of the Oregon Holocaust Memorial Coalition (OHMC), a locally based ad hoc committee, which has extensive knowledge of and interest in Holocaust history and the personal experience of Holocaust victims; and,

WHEREAS, the City, the AJC and the OHMC wish to have a Memorial constructed to share the history and impacts of the Holocaust and the lives it has touched in the northwest; and,

WHEREAS, the City, through Resolution No. 35430 adopted by its City Council on August 9, 1995, and in accordance with the Decision and Order of its City Council dated October 1, 1998, and the related Supplemental Decision of its City Council dated May 24, 2001, has determined that the construction and dedication of a Holocaust Memorial (Memorial) can occur, with certain conditions, at a specific site at Washington Park; and

WHEREAS, the AJC and the OHMC have agreed to take responsibility for completing the construction of the Memorial, according to the design and plans approved by the City; and,

WHEREAS, City is willing to issue a Revocable Permit to AJC in accordance with the terms and conditions set forth herein; and,

NOW THEREFORE, the City and AJC, in consideration of the mutual covenants hereinafter contained, hereby agree as follows:

Agreed:

1. DEFINITIONS

As used in this Permit:

“Memorial” means a set of improvements within a plaza to be constructed and installed within the Permit area, which, when completed will comprise the Oregon Holocaust Memorial.

“Permit area” means that portion of the Property on which AJC is authorized to construct, install and dedicate the Memorial.

“Park” means that portion of the Property on which the City maintains and operates its recreational facilities and related improvements, whether existing as of the date of this Permit or established thereafter, for the public’s use and enjoyment.

“Property” means that real property owned by the City, commonly referred to as Washington Park, the affected portion of which is legally described as 1N 1E Section 32, Tax Lot 100, Multnomah County, Oregon.

2. PERMITTED USES

City hereby issues a non-exclusive Revocable Permit to AJC upon the conditions, covenants and agreements hereinafter set forth, to use the Permit area for the purpose of constructing and installing the Oregon Holocaust Memorial.

3. NO MODIFICATION

No modification shall be made to the plans and specifications approved by the City for the Memorial without the prior written approval of the Director of Portland Parks and Recreation or the Director of the AJC.

4. EFFECTIVE DATE/TERM

This permit shall be effective from the date City Council adopts an ordinance authorizing its execution by the Commissioner of Public Utilities and shall terminate when the Memorial is completed and accepted by the City.

5. CONSTRUCTION OF THE MEMORIAL AND RESTORATION OF THE CITY’S PROPERTY

A. General Conditions

(1) Compliance with Applicable Laws and Regulations:

AJC shall construct and install the Memorial in accordance with all applicable federal, state, and municipal or county laws, orders, rules, and regulations existing on the date of this Permit or enacted thereafter and shall assume all costs, expense, and responsibility in connection therewith.

(2) Manner of Performance:

AJC shall construct and install the Memorial in an orderly and workmanlike manner. The safety of the general public and the minimization of impact on adjacent neighbors shall be of paramount importance.

(3) Permits:

AJC shall be responsible for determining the requirement for other appropriate permits, securing and paying for all permits and government fees, licenses, and inspections necessary for the proper construction and installation of the Memorial. AJC has been specifically advised to notify and consult with the following organizations regarding the necessity of obtaining such a permit:

City of Portland Bureau of Development Services

City of Portland Urban Forestry

(4) Interference:

The Memorial shall be constructed and installed in a safe and proper manner so as not to endanger the general public, interfere with the public’s use and enjoyment of the Park and Property, or interfere with any improvements on the Property.

(5) Maintenance of Records and As-builts:

(a) During construction, AJC shall keep accurate maps and records, including the approved as-built construction plans and specifications, of the Memorial.

(b) Upon completion of the construction and installation of the Memorial and its acceptance by the City, AJC shall arrange for the City to receive a true copy of such maps, records and as-builts, in a form (digital and paper) to the reasonable satisfaction of the City.

B. Construction of Oregon Holocaust Memorial

(1) Construction Plans and Specifications:

(a) Construction of the Memorial on the Property shall be performed strictly in accordance with the plans and specifications attached to this Permit as Exhibit B or approved in writing by the City. Only those improvements permitted by this Permit shall be established on the Property. It is acknowledged by the parties that all the pathways in the Memorial will be paved and all the fencing will be decorative.

AJC shall strictly adhere to any limitations or restrictions on construction methods or techniques as set forth in the approved construction plans and specifications. AJC shall not construct additional improvements on the Property or change the pre-approved construction methods or techniques without specific written approval of the City, which written approval, if given, may constitute a separate agreement.

(2) Construction Schedule:

(a) AJC shall submit name of its contractor, subcontractors, if any, and a proposed construction schedule to the City for approval. The proposed construction schedule shall include, at a minimum, the date when construction of the Memorial will begin and the date the Memorial will be completed. The planned date for commencement of construction is _______________. Construction on the Memorial is expected to take approximately 90 days and shall be accomplished in a timely manner. Whenever possible, construction delays will be avoided.

(b) AJC shall notify City immediately of any changes to the approved schedule. Such changes shall be subject to the prior written approval of the City.

(c) AJC shall restrict construction activity to as limited a time as possible, to reasonably allow for the least impact on recreational use of the Park, and the least impact on adjacent park neighbors.

(3) Confining Construction Activity and Warning Public:

(a) AJC shall post signs at appropriate places around the construction area to warn the public of a potential hazard created by its construction activities.

(b) AJC, its contractor and subcontractors shall confine all construction activity that occurs on City property within the Permit area. During construction, access and storage shall occur on the Property in a location agreed to by the field representatives of City and AJC.

(4) Excavation and Underground Work:

(a) AJC, its contractor and subcontractors, if any, shall not make or begin any excavation or other subsurface activity on the Property without first contacting One-Call Locates and notifying it that the Property is owned/managed by City of Portland, Bureau of Parks & Recreation. One-Call Locates telephone number is 1-800-332-2344.

(b) AJC shall not make or begin any excavation or other subsurface activity on the Property without having all underground facilities located by suitable markers or other means by the owners of such underground facilities or other qualified or authorized persons.

(c) Notwithstanding having complied with subparagraphs (4) (a) and (4) (b) of this paragraph, AJC shall conduct all excavation or other subsurface activity in a careful and prudent manner.

(d) In the event of any damage to or dislocation of any underground facility in connection with the excavation or other surface activity, AJC shall immediately notify the owner in writing of such facility and shall immediately cease all work in the affected area until repairs are complete. Any such incident shall be reported to the City, and no further excavation or subsurface activity shall be done until written permission is granted by the City. All such repairs shall be made at the sole cost to the AJC.

(e) All excavation or other subsurface activity made by AJC shall be properly safeguarded for the prevention of accidents. All excavated or tunneled areas shall be filled in or otherwise adequately secured at the end of each work day.

(5) Inspection of Construction:

(a) The construction of the Memorial is subject to City inspection at all places and all reasonable times to ensure strict compliance with the terms of this Permit.

(b) City inspections are for the sole benefit of the City and do not constitute or imply acceptance of any work as conforming with the requirements of this Permit. The presence or absence of a City inspector does not relieve AJC from any requirement of this Permit, nor is the inspector authorized to change any term or requirement of this Permit without the written authorization of the City’s Property Manager.

C. Field Representatives

The AJC has engaged Mr. Paul Schlesinger to be its Project Manager for the construction. Mr. Schlesinger, as the field representative for the AJC can be reached by office phone at (503) 223-4128 or by cell phone at (503) 312-9688. The City's field representative for the construction project will be Gary Woodruff, Construction Manager for Portland Parks and Recreation, who can be reached by office phone 503-823-5593, cell phone 503-823-6707. No less than 48 hours before site work is scheduled to begin, the AJC will contact the City's field representative to arrange for a pre-construction meeting at the site. No site work shall begin until the City's field representative has attended the pre-construction meeting and authorized start-up of the project.

D. Avoiding Disturbance

To the greatest extent reasonably possible, AJC shall avoid disturbing the Property and any improvements thereon while constructing the Memorial. To the extent any disturbance does occur, the AJC shall restore such disturbed areas in accordance with the requirements set forth herein under “Restoration”.

E. Restoration

(a) Restoration of the Property shall be to the reasonable satisfaction of the Director of Portland Parks and Recreation.

(b) City has provided AJC with a copy of the Portland Native Plant List and shall define restoration requirements in a timely manner. Restoration specifications shall use only plant material from the Portland Native Plant List. AJC shall be responsible for either meeting the restoration requirements to the satisfaction of the City or paying the City to do the restoration.

(c) AJC shall, as soon as practicable after completion of any construction or installation of the Memorial, restore all areas and improvements, including but not limited to irrigation system equipment and subsurface drainage lines, disturbed during the construction or installation. Restoration shall occur to a condition substantially the same as or better than that which existed prior to AJC’s construction or installation and shall be to the reasonable satisfaction of the City, taking into consideration aesthetics as well as structural or design integrity. At the sole discretion of the City, the City may determine that it should do the restoration work, for which the AJC shall reimburse the City.

(d) If the disturbed area is on a portion of the Property which is paved, AJC shall immediately restore the disturbed area with a temporary patch until the surface can be permanently restored in accordance with the requirements of this Permit.

(e) In the event AJC fails to restore any areas in a timely manner as determined by the City, the City may undertake such restoration and require AJC to reimburse the City for all costs reasonably incurred by the City.

(f) AJC shall compensate the City for adequately documented damages that result from AJC’s work or activity on the Property. Any such compensation will be paid in a timely manner.

C. Special Conditions

(1) Conditions for Construction Approval:

(a) The AJC shall secure the services of a licensed, bonded general contractor, who must be approved by the City, to supervise the construction and installation of the Oregon Holocaust Memorial. The AJC or its contractor shall secure the services of licensed, bonded subcontractors to perform the electrical, plumbing and irrigation installations required to complete the Memorial. The Director of Portland Parks and Recreation shall have final authority to approve or disapprove any change orders affecting the design or materials used in construction of the improvements.

(b) AJC shall require its construction contractor to provide a performance and payment bond in the full amount of the construction contract.

(2) Ownership of Facilities:

The Memorial shall be owned by the City of Portland once the Memorial is completed by the AJC and accepted by the Director of Portland Parks & Recreation, at which time the AJC will voluntarily transfer all ownership rights, title and interest in the Memorial to the City. Thereafter, the City will wholly own and control the Memorial.

(3) Funding of Construction:

(a) AJC estimates that the total cost of construction will be approximately $800,000 and stipulates that it has secured the necessary funding to construct and install the Memorial in conformance with plans and specifications submitted to the City and approved by the City on _________________. AJC has cash on hand in money market accounts and has established an account with US Bank, Stadium Branch, to which it will transfer those funds and use them to pay for all expenses associated with construction and installation of the Memorial. AJC certifies that proper authorization has been given to expend the funds and begin the construction project. If there is money left in the account after the Memorial has been completed and accepted by the City and all expenses have been paid in full, AJC shall deposit such funds in the trust account established by OHRC for the purpose of operating and maintaining the Memorial.

6. ABSENCE OF WARRANTIES; LIMITATION OF PRIVILEGES CONFERRED; AUTHORITY TO ISSUE OR GRANT ADDITIONAL RIGHTS; AND ACCEPTANCE OF PROPERTY CONDITION

(a) The privileges herein issued to AJC are subject to any rights or interests held by others in and to the Property as of the date of this Permit. The City makes no representations or warranties, express or implied, concerning the extent of such outstanding rights held by others and shall have no responsibility for conflicts with others as a result of this Permit.

(b) Any privileges issued under this Permit shall not limit the City’s authority to grant additional rights, privileges or interests within the Permit area. Should the City grant additional rights, privileges or interests within the Permit area to some other individual or entity, the City will require any interference with the Memorial to be minimized, and if damaged, will require that the Memorial be restored, at no expense to AJC, to as good or better condition as they were in before any permitted construction occurred.

(c) AJC warrants that AJC has inspected the Property and accepts it in its present condition. The City makes no representation or warranty, express or implied, concerning the condition of the Property and shall have no responsibility to AJC for repairs or maintenance of the Property at any time.

7. CITY’S CONTINUED USE

Nothing in this Permit shall be construed to prevent the City from using the Park property or repairing, altering, relocating, or constructing additional improvements on the Property. The City shall do such work, insofar as practicable, in a manner not to obstruct, damage or prevent the free operation of the Memorial. If any element of the Memorial shall interfere with City’s use of the Park property or its repair, alteration, relocation or construction of existing or additional improvements in the vicinity of the Memorial, the parties shall cooperate and confer as to how changes can occur that honor and respect the Memorial. The Memorial is not intended to interfere with the public’s use of the Park property. City agrees to cooperate with AJC and to use its best efforts to accomplish any alterations, relocations, or construction on the Property or future improvements in a manner least intrusive to the privileges extended to AJC under this Permit.

8. CLAIMS AND LIENS FOR LABOR AND MATERIAL AND TAXES

The AJC shall fully pay for all materials joined or affixed to and labor performed upon the Property in connection with the construction, operation, maintenance, repair, renewal, reconstruction, or removal of the Memorial and shall pay all taxes, including but not limited to leasehold interest taxes, assessments, use and occupancy taxes, charges for public utilities, excesses and levies, levied on the Permit area that arise out of AJC’s construction or installation of the Memorial.

9. INDEMNIFICATION

(a) The AJC shall hold harmless, defend and indemnify the City, its officers, agents and employees, against and from any and all liability, loss, damage, claims, demands, actions, suits, costs and expenses of whatsoever nature, including all court costs and attorney’s fees, including an appeal, which may result from injury to or death of persons, or from damage to or loss or destruction of property (including damage to the property or facilities of City) when such injury, death, loss, destruction, or damage arises from or is due to AJC’s activities under this Permit, including without limitation, the existence, construction, operation, use, maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the Memorial.

(b) The AJC does hereby release the City, its officers, agents and employees from all liability for damages on account of damage to the Memorial from any cause whatsoever, unless arising from the City’s sole negligence.

10. LIABILITY INSURANCE

(a) Liability Insurance:

(1) AJC shall maintain public liability insurance and property damage insurance that protects AJC and the City and its officers, agents and employees from any and all claims, demands, actions and suits for damage to property or personal injury, including death, arising from AJC’s activities under this Permit. The insurance shall provide coverage for not less than $200,000 for personal injury to each person, $500,000 for each occurrence, and $500,000 for each occurrence involving property damage; or a single limit policy of not less than $500,000 covering all claims per occurrence. The limits of the insurance shall be subject to statutory changes as to maximum limits of liability imposed on municipalities of the State of Oregon during the term of this Permit. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City and its officers, agents and employees. Notwithstanding the naming of additional insureds, the insurance shall protect each insured in the same manner as though a separate policy had been issued to each, but nothing herein shall operate to increase the insurer’s liability as set forth elsewhere in the policy beyond the amount or amounts for which the insurer would have been liable if only one person or interest had been named as insured. The coverage shall apply as to claims between insureds on the policy. The insurance shall provide that the insurance shall not terminate or be canceled without thirty (30) days written notice first being given to the Portland Parks & Recreation Property Manager. If the insurance is canceled or terminated prior to termination of this Permit, AJC shall provide a new policy with the same terms. AJC agrees to maintain continuous, uninterrupted coverage for the duration of this Permit. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motor vehicles by the AJC.

(2) AJC shall require its contractor and subcontractors to maintain the following types of insurance: (1) comprehensive general liability; (2) products/completed operations; (3) independent contractor’s protective liability; (4) contractual liability; and (5) personal injury. Minimum coverage amounts for such contractor’s insurance shall be not less than $1,000,000 for bodily injury to each person, $1,000,000 for each occurrence involving property damages; or a combined single limit policy of not less than $1,000,000 covering all claims per occurrence. The contractors’ and subcontractor’s insurance shall name both the AJC and the City, and its officers, agents and employees as additional insureds.

(3) AJC and its contractor and subcontractors shall maintain on file with the Portland Parks & Recreation Property Manager a certificate of insurance certifying the coverage required under Section 10 (a) and (b) written above. The adequacy of the insurance shall be subject to the approval of the City Attorney. Failure to maintain liability insurance shall be cause for immediate termination of this Permit by the City. A copy of AJC’s current liability insurance certificate is attached hereto as Exhibit C. A copy of AJC’s contractor’s current liability insurance certificate is attached as Exhibit E.

(b) Workers’ Compensation Insurance:

(1) AJC, its contractor and subcontractors and all employers working under this Permit 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 demonstrating AJC’s coverage of worker’s compensation insurance is attached hereto as Exhibit D and a certificate demonstrating AJC’s contractor’s coverage of worker’s compensation insurance coverage is attached hereto as Exhibit F. AJC further agrees to maintain workers’ compensation insurance coverage for the duration of this Permit and to require its contractor and subcontractors to maintain workers’ compensation insurance for the duration of any construction of the Memorial and the duration of any work at the Property. AJC agrees to require any contractor or subcontractor to comply with the provisions of this Section.

(2) Prior to the expiration of the AJC’s, its contractor’s or subcontractors’ workers’ compensation insurance coverage, the AJC agrees to timely renew its insurance, or to require timely renewal of its contractor’s or subcontractor’s workers compensation 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 the AJC agrees to provide the City such further certification of workers’ compensation insurance as renewals of said insurance occur.

11. NON-WAIVER

The parties shall not be deemed to have waived any breach of this Permit except by an express waiver in writing. Any express waiver by any party of the breach of any condition, covenant, or agreement herein contained to be kept, observed and performed by the other party shall in no way impair the right of that party to avail itself of any subsequent breach thereof not expressly identified, even though the other breach may be of the same nature as that waived.

12. PROHIBITED USES; HAZARDOUS SUBSTANCES

(a) Neither AJC nor its contractor or subcontractors shall store flammable, explosive, or other hazardous materials on the Permit area.

(b) AJC, its contractor and subcontractors shall not perform or authorize any activities at the Permit area that would cause the Property, or any part thereof, to be contaminated by a Hazardous Substance as defined in ORS 465.200(15). In the event of a leak, spill, or release of a Hazardous Substance on the Property or the threat of or reasonable suspicion of the same, caused or authorized by AJC’s contractor or subcontractor, AJC shall immediately undertake all emergency response necessary to contain, clean up, and remove the Hazardous Substance and shall undertake within a reasonable time all investigatory, remedial and/or removal action necessary or appropriate to ensure that any contamination by the Hazardous Substance is eliminated. The City shall have the right to approve all investigatory, remedial and removal procedures and the company(ies) and/or individual(s) conducting said procedures. Within 30 days following completion of such investigatory, remedial and/or removal action, AJC shall provide the City with a certification acceptable to the City that all such contamination has been eliminated.

13. TERMINATION BY THE CITY FOR CAUSE

If AJC fails, neglects, or refuses to do, keep, observe and perform each and all of the terms, provisions, and conditions of this Permit, the City, at the City’s sole discretion, upon thirty (30) days written notice to AJC, may:

(a) Complete construction and installation of the Memorial or repair of the Property or do or contract for other work required by this Permit to be done by the AJC. The AJC shall pay or reimburse the City for all such costs and charges incurred or necessitated by such work. Any actions taken by the City under this Section shall be without prejudice to or impairment of any right to action for damages or otherwise which the City may have against the AJC.

(b) Terminate this Permit should AJC’s failure, including submission of any payment resulting from such failure, as described in (1) above, fail to be completely rectified within ninety (90) days, as determined by the City.

14. NOTICES

Notices under this Permit shall be deemed to be properly served if delivered in writing by certified mail with return receipt requested to the following addresses or such other places as the parties reasonably designate:

To City: City of Portland

Parks and Recreation – Property Manager

1120 SW 5th Avenue, Room 1302

Portland, OR 97204-1933

With copy to: Office of the City Attorney

1221 SW 4^th Avenue, Room 430

Portland, OR 97204

To AJC: American Jewish Committee

Attn: National Finance Director

165 East 56^th Street

New York, NY 10022

AND

American Jewish Committee – Oregon Chapter

Executive Director

1220 SW Morrison, Suite 828

Portland, OR 97205

With copy to: Mr. Paul Schlesinger

610 SW Alder, Suite 1221

Portland, OR 97205

15. ENTIRE AGREEMENT

This Permit contains the entire agreement between the City and the AJC and supersedes all prior written or oral discussions or agreements.

16. COMPLIANCE WITH LAWS

AJC shall comply with all applicable federal, state and local laws and regulations in connection with its activities under this Permit.

17. OREGON LAW AND FORUM

This Permit shall be construed according to the laws of the State of Oregon. Any litigation between the City and the AJC arising out of this Permit shall occur in Multnomah County Circuit Court or if in the federal courts, in the United States District Court for the State of Oregon.

18. SUBCONTRACTING AND ASSIGNMENT

This Permit shall not be assigned or subcontracted, except as specifically contemplated herein, without the prior written consent of the City.

19. SEVERABILITY

If any provision of this Permit is found to be illegal or unenforceable, this Permit nevertheless shall remain in full force and effect and the provision shall be stricken from this Permit.

20. AMENDMENTS

This Permit may be amended only by written amendment executed by AJC and City.

WHEREAS, the parties have executed this Revocable Permit in duplicate, a signature of AJC being by authority of its Executive Committee and a signature of City being by authority of its City Council, as approved in Ordinance No. _______________________ passed on ______________________.

For: The American Jewish Committee

____________________________________ ____________________________

David A. Harris Date

Executive Director

For: The City Of Portland

____________________________________ ____________________________

Jim Francesconi Date

Commissioner of Public Utilities

Commissioner of Parks and Recreation

APPROVED AS TO FORM

Senior Deputy City Attorney

Summary of Attachments:

Exhibit A: Map of the Permit Area in Washington Park

Exhibit B: Plans and specifications for the Oregon Holocaust Memorial

Exhibit C: AJC’s Liability Insurance Certificate

Exhibit D: AJC’s Workers’ Compensation Insurance Certificate

Exhibit E: AJC’s Contractor’s Liability Insurance Certificate

Exhibit F: AJC’s Contractor’s Workers’ Compensation Insurance Certificate