AGREEMENT
CITY OF PORTLAND & THE OREGON HOLOCAUST RESOURCE CENTER, LTD.
for
OPERATION & MAINTENANCE of the OREGON HOLOCAUST MEMORIAL in WASHINGTON PARK
This Agreement is by and between the City of Portland, Oregon, a municipal corporation of the State of Oregon (City) acting through its Bureau of Parks and Recreation (Parks) and the Oregon Holocaust Resource Center, Ltd. (OHRC), a non-profit corporation of the State of Oregon.
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 (Site) is legally described as 1N 1E Section 32, Tax Lot 100, Multnomah County, Oregon; and,
WHEREAS, the Oregon Holocaust Memorial Coalition (OHMC), an ad hoc locally based committee, and the American Jewish Committee (AJC), a non-profit corporation of the State of New York, have agreed to fund the construction of a permanent memorial to honor the victims and survivors of the Holocaust and to document and share the history of the Holocaust and the lives of victims, survivors and their families now living in the Pacific Northwest; and,
WHEREAS, the City and AJC have agreed that AJC can, with certain conditions, construct the Oregon Holocaust Memorial (Memorial) at the Site in Washington Park; and
WHEREAS, the OHRC has partnered with the Oregon Holocaust Memorial Coalition (OHMC), which has extensive knowledge of and interest in Holocaust history and the personal experience of Holocaust victims, to assume long-term operational and maintenance responsibility for the Memorial; and
WHEREAS, the City and OHRC has agreed that, with certain conditions, OHRC shall assume responsibility for the long-term operation and maintenance of the Memorial and the Site within the Park in which it is constructed;
NOW THEREFORE, City and OHRC agree that:
1. Premises and Improvements:
The Memorial is a set of improvements within a plaza to be constructed and installed on a Site approximately 24,000 SF in size which is located in the northeast area of Washington Park, east of SW Wright Avenue and west of SW Washington Way. Improvements added to the Site are considered part of the Premises. The Memorial includes an entry square with benches, pathways, an ornamental light fixture, a low wall etched with narrative information about the Holocaust, and several full-size cast bronze artifacts. One of the paths will be Belgian stone inlaid with black granite bars to simulate railroad tracks. The plaza features two connected semicircular black granite walls approximately eight (8) feet tall. One side of each granite wall and the end panels will be etched with text. The general layout of the Memorial is illustrated in the attached Exhibit A.
2. Term of Agreement:
The term of this Agreement shall commence on the date the City signs this Agreement and shall continue for a period of five years, after which it shall be subject to annual review for commitment, purpose and direction. The annual review will occur on or not more than three (3) weeks after October 15 of each year. It is the intent of the parties that the OHRC shall be perpetually responsible for operation and maintenance of the Memorial.
3. Ownership and Responsibility:
Both parties understand that the City of Portland is the owner of all improvements that constitute the Memorial, once construction and installation is completed and the Memorial is formally accepted by the Director of Parks and Recreation. The City will retain all ownership rights, title and interest in and to the improvements known as the Memorial. The OHRC accepts responsibility for the operation and maintenance of the Memorial and the incremental cost of additional maintenance at the Site, due to construction and installation of the Memorial, as delineated in this Agreement. Although it does not contemplate any modification of the Memorial, the City will give the OHRC reasonable notice before modifying any improvements should the City deem such action to be necessary.
4. Indemnification:
The OHRC, its contractors and subcontractors, if any, shall hold harmless, defend, and indemnify the City of Portland and its officers, agents and employees against all claims, demands, actions, and suits (including attorney fees and costs) brought against any of them arising from the acts or omissions of the OHRC, its contractor or subcontractors, if any, acting under this Agreement, including appeals.
5. Insurance:
The OHRC, its contractors and subcontractors, if any, shall maintain public liability and property damage insurance that protects the OHRC and the City and their officers, agents and employees from any and all claims, demands, actions and suits for damage to property or personal injury, including death, arising from work done under this Agreement. 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 the Agreement. The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the City of Portland 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 must apply as to claims between insureds on the policy. The insurance shall provide that coverage shall not terminate or be canceled without thirty- (30) days written notice first being given to the Property Manager of the Bureau of Parks and Recreation. If the insurance is canceled or terminated prior to completion of the term of the Agreement, the OHRC shall require its contractor and subcontractors, if any, to provide a new policy with the same terms. The OHRC's contractor and subcontractors, if any, shall maintain continuous, uninterrupted coverage for the duration of the Agreement. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motor vehicles used by the OHRC's contractor or subcontractors, if any.
6. Evidence of Insurance:
The OHRC and its contractor and subcontractors, if any, shall maintain on file with the Property Manager of the Bureau of Parks and Recreation certificates of insurance certifying the coverage required under this Agreement. 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 Agreement by the City.
7. Worker’s Compensation Insurance:
The OHRC shall require its contractor and subcontractors, if any, to obtain worker's compensation insurance for all of their workers and employees either as a carrier-insured employer or as a self-insured employer, as provided by Chapter 656 of the Oregon Revised Statutes, before commencing work under this Agreement. If OHRC's contractor or subcontractors, if any, are either defined under that chapter as non-subject workers or are not defined under that Chapter as subject workers, the OHRC's contractor and subcontractors, if any, shall elect and obtain workers' compensation insurance under ORS 656.039 before commencing work under this Agreement. A certification of insurance, or copy thereof, shall be on file with the Property Manager of the Bureau of Parks and Recreation. The OHRC’s contractor and subcontractors, if any, shall maintain their workers' compensation insurance coverage throughout the duration of any work to be performed under this Agreement.
8. Compliance with Laws:
In connection with its activities under this Agreement, the OHRC shall comply with all applicable federal, state and local laws and regulations. This Agreement shall be construed according to the laws of the State of Oregon. Any litigation between the City and the OHRC 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.
The OHRC shall comply with all laws, rules, orders, ordinances, directions, regulations and requirements of federal, state, county and municipal authorities now in force or which may hereafter be in force during the term of this Agreement, including, but not limited to, the Americans with Disabilities Act of 1990, which shall impose any duty upon City or the OHRC with respect to the use, occupation or alteration of the Memorial. The legal and general construction specifications of this project shall conform to the standards currently used by Portland Parks and Recreation.
9. Successors and Assigns:
The OHRC shall not assign this Agreement, in whole or in part, or any right of obligation hereunder, without the prior written approval of the City, which shall not be unreasonably withheld.
10. Expenses and Funding:
Each year, OHRC shall provide funding at an appropriate level to support the level of maintenance described in Exhibit B of this Agreement. OHRC shall contract with Parks to provide the required maintenance for the Memorial and the Site, or, with Parks prior written approval, it may arrange with private contractors to perform the maintenance. If Grantee fails to maintain the Memorial to the satisfaction of the Director of Parks and Recreation, the City shall have the right to perform such maintenance and to recover all its costs of doing so from OHRC. Should unexpected expenditures be necessary, the parties shall come to agreement over how and how much the City shall be reimbursed to pay for such costs. It is the intent of the parties that the OHRC shall pay for all costs related to maintenance of the Memorial and the increased incremental cost of maintenance at the Site due to the construction and installation of the Memorial.
11. OHRC’S Responsibilities:
a. OHRC shall be responsible for paying the cost of all maintenance for all portions of the Memorial including but not limited to general upkeep, trash removal, landscaped material and turf care, irrigation, hardscape care, lighting, signage, irrigation maintenance and repair, and repair or replacement of damaged or missing materials. If damaged or stolen, the ornamental light fixture, bronze artifacts, granite walls, items with text or benches shall be replaced solely at the expense of OHRC. If the ornamental light fixture, bronze artifacts, granite walls, items with text or benches need major repair, OHRC shall repair, at its sole expense, in a timely manner.
b. The estimated cost of annual maintenance for the Memorial, including anticipated minor repairs and electrical service, is expected to be approximately $24,200 in the first year and to increase incrementally in cost each year in accordance with prevailing wage rates, utility rate increases, and materials costs. OHRC shall pay the City for its actual costs on a quarterly basis and the payment shall be submitted to Parks no later than 30 days after receipt of City’s invoice for its labor, utilities and materials expenditures attributable to the Memorial.
c. If it is determined by the parties that additional installations are necessary to protect and support the Memorial and the Site, such as but not limited to the addition of security devices, the replacement of trees or the alteration of lighting, those additional costs shall be fully paid by OHRC.
d. The OHMC shall raise a minimum of $70,000 and transfer it to OHRC for the exclusive purpose of OHRC’s establishment and maintenance of a trust account of no less than $70,000 to provide ready funds to pay for the ongoing maintenance of the Memorial. The trust shall be maintained in a State of Oregon accredited financial institution with offices in Portland and OHRC shall require the financial institution to submit an annual report to the City showing the name of the trust account, its balance, its yearly financial activity and the name of the trust account manager. The annual report from the trust shall be submitted to the City by December 31 of each year.
e. If a withdrawal from the trust is necessary to pay for OHRC’s responsibilities, the OHRC agrees to restore the funding of the trust to its minimum balance in a timely manner but within no more than a one-year period of the date of the withdrawal.
12. City’s Responsibilities:
a. The parties have agreed that the City shall be responsible for performing the required routine annual maintenance of the Memorial and minor repairs in accordance with the provisions of Section 11 of this Agreement and the tasks and schedule provided in Exhibit B; however, City shall not be responsible for repairing or replacing the ornamental light fixture, bronze artifacts, granite walls or other items with text, or benches. City shall continue to maintain the adjacent grounds at Washington Park as its funding allows.
b. The City shall establish a billable work order number in its MS 2000 system, or a similar supply and labor accounting system if MS 2000 is discontinued, to collect all costs associated with maintenance of the Memorial and the incremental cost of maintenance at the Site due to the Memorial’s construction and installation. On a quarterly basis, following completion of the construction and installation of the Memorial, the City shall request payment for its work and submit an invoice to OHRC showing the labor, utilities and material expenditures attributable to the Memorial that were incurred the previous quarter.
13. Notice:
Any notice provided for under this Agreement shall be sufficient if in writing and delivered personally to the following addressee or deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed as follows, or to such other address as the receiving party hereafter shall specify in writing:
If to the City: Property Manager
Portland Parks and Recreation
1120 SW Fifth Avenue, Room 1302
Portland, OR 97204-1933
If to the OHRC: President/Executive Director
Oregon Holocaust Resource Center
c/o Pacific University
2043 College Way
Forest Grove, OR 97116
14. Park Site Review:
Formal on-site review of the Memorial’s condition and appearance, plant survival, level of maintenance, and other issues relating to integration of the Memorial with the Park shall be done twice yearly, in April and October, by the City and OHRC. Any on-site problems that occur related to maintenance or security shall be resolved by mutual cooperation between the parties. City representative for the on-site review will be its Portland Parks and Recreation District Supervisor or his/her designee. OHRC representative for the on-site review will be the President of OHRC or his/her designee.
15. Park Restroom:
In accordance with the direction from City Council to provide funding for park restroom operation and maintenance, it is expected that the existing public restroom located near the Site shall remain open and accessible to the public no less than the standard six-month season for all public park restrooms serving comparable sites. If the OHRC requests a longer season of restroom operation at Washington Park to better serve Memorial visitors, OHRC shall be responsible for any additional costs associated with any extended restroom operation and maintenance.
16. Good Neighbor Agreement:
Within one year of the City’s acceptance of the ownership of the Memorial, the OHRC will participate in the development of a Good Neighbor Agreement with residents of the adjacent neighborhood who shall be selected by the Director of Portland Parks and Recreation.
17. Promotion of Public Transportation:
OHRC agrees to significantly emphasize the promotion and use of public transportation and carpooling to the Memorial by its visitors, patrons and volunteers. OHRC shall continually encourage its visitors and volunteers to use public transportation and carpooling to access the Memorial. OHRC shall prominently encourage the use of all forms of public transportation to the Memorial, including but not limited to publication of brochures, maps and other printed and electronic material produced by OHRC or its contractors, volunteers or patrons.
18. Acknowledgment:
OHRC shall acknowledge the City of Portland Bureau of Parks and Recreation as a partner and a donor when the OHRC or its partners publishes or publicizes any list of partners and donors in its operation and maintenance of the Memorial. The acknowledgement reflects that the City of Portland Bureau of Parks and Recreation donated the land on which the Memorial is located. Typically, the acknowledgement shall consist, at a minimum, of the logo and the name.
19. Extent of Agreement/Modification:
This Agreement, together with attachments, represents the entire Agreement between the parties and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by the President of Oregon Holocaust Resource Center for OHRC and by the Director of Parks and Recreation for the City.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate, a signature of OHRC being by authority of its Board of Directors authorized at a meeting on October 14, 2003, and a signature of City being by authority of its City Council, as approved in Ordinance No. ______________ passed on __________________.
For: Oregon Holocaust Resource Center Ltd.
Elaine Coughlin Date
President
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