City Auditor - City Recorder - Council Ordinance - 179875 Performing Arts Center Restrictive Covenant & Easement contract

After recording return to:

The Oregon Community Foundation

1221 SW Yamhill, #100

Portland, OR 97205

RESTRICTIVE COVENANT AND EASEMENT AGREEMENT

EFFECTIVE DATE: Upon Recording

BETWEEN: CITY OF PORTLAND

a municipal corporation of the State of Oregon (“City”)

AND: THE OREGON COMMUNITY FOUNDATION

an Oregon non-profit corporation (Foundation)

City owns the New Theater Building which is described as Block 206, Portland Addition, City of Portland, Multnomah County, Oregon (the “Building”). The Building is part of the City’s Performing Arts Center.

The City is a beneficiary of a gift from a donor (“the Donor”) to the Foundation in the amount of $1,500,000. As a condition of that gift, Donor has required that the City grant the Foundation an easement on a portion of the Building, and the City has agreed to grant such easement.

NOW, THEREFORE, for good and valuable consideration, the City agrees as follows:

1. Grant of Easements

The City hereby grants to the Foundation the following two (2) easements (the “Easements”):

1.1 An easement on the second horizontal wide flange steel beams at the northeast corner of the Building, along the north facade and the east facade, and the second horizontal wide flange steel beams at the northwest corner of the Building along the north facade and the west facade for the placement, following the obtaining of any required City sign permit, of an identifying name using either the words “ Hall” or the words “ Theater Building,” and thereafter the continuous location of that name on such surfaces.

1.2 An easement on the east exterior facade of the Building, at the current location of the northerly most glass-faced playbill box allowing, following the obtaining of any required City sign permit, the continuous location of a commemorative plaque to be provided by the Foundation.

2. Term of Easements

The Term of the Easements shall commence on the date first set forth above and shall end at such time that Block 206, Portland Addition, City of Portland, Multnomah County, Oregon is no longer the site of a publicly owned or publicly occupied building.

3. Temporary Suspension of Easements

In the event of the destruction of the Building, or a successor building, or any portion of the Building constituting a facade subject to the Easements, the Easements shall be suspended during the period of destruction, but the Easements shall be automatically reinstated upon construction of a new publicly owned or publicly occupied building at the site of the Building.

4. Assignment and Enforcement

The Foundation may assign its rights hereunder to the Donor and the Donor’s heirs, devisees, and assigns. The Easements may be enforced by the Foundation and, following such an assignment, by Donor and the Donor’s heirs, devisees, and assigns and any person or entity designated in writing thereby.

5. Maintenance and Repair

Throughout the term of the Easements, the City agrees to repair and maintain the lettering which forms the words “ Hall” or “ Theater Building,” whichever applies, and the commemorative plaque. If the City fails to do so, the Foundation or, following assignment under Section 4, the Donor and the Donor’s heirs, devisees, and assigns or their designee may do so.

6. Restrictive Covenant

Except as specifically permitted by this Section, throughout the Term of the Easements, the City agrees to not give the Building or a successor building another name, and in that regard, the City agrees not to place another name or identifying logo on the exterior of the Building or a successor building which would identify the Building or a successor building with that name or logo, except for numerals for a street address. This restrictive covenant places no limitations on the placement of names, logos or symbols within the Building or a successor building, and places no limitations on the placement of names, logos or symbols on the exterior of the Building that identify the theater lobby bar, theater lobby restaurant, or similar theater services. Donor acknowledges that there are already theater names and the names of the theater lobby bar and theater lobby restaurant on the exterior of the Building and these are not inconsistent with this Section 6. Further, the City shall retain the right to name the entire Portland Center for the Performing Arts Complex (consisting of the Building, the Arlene Schnitzer Concert Hall, and the Keller Auditorium), and in the event the City so names the entire complex, the City may cause the complex name and symbols and logos associated with the complex name to be displayed on the Building, and such display shall not be inconsistent with this Section 6.

7. Limitation on Easements

Except for the terms of the Easements, Donor has no property rights in or to the Building or a successor building.

8. Specific Enforcement

This Restrictive Covenant and Easement Agreement and the Easements granted are specifically enforceable by the Foundation or, following assignment under Section 4, the Donor and the Donor’s heirs, devisees, and assigns, or any person or entity designated in writing thereby. The City acknowledges that damages for a breach would be inadequate, and that injury from a breach would be irreparable.

9. Complete Agreement

This Restrictive Covenant and Easement Agreement constitute the entire agreement between the parties relating to the Easements.

10. Modification

Any modifications to this Restrictive Covenant and Easement Agreement must be made in writing and executed by the Foundation or, following assignment under Section 4, the Donor or the Donor’s heirs, devisees, and assigns, and the City.

IN WITNESS WHEREOF, the parties have executed this Restrictive Covenant and Easement Agreement effective as of the date first above written.

CITY OF PORTLAND, OREGON, a municipal corporation of the State of Oregon

_______________________________________

By: Tom Potter, Mayor,

City of Portland

_______________________________________

By: Gary Blackmer, Auditor

City of Portland

THE OREGON COMMUNITY FOUNDATION

_______________________________________

By: Gregory A. Chaille, President

The Oregon Community Foundation

STATE OF OREGON )

) ss.

COUNTY OF MULTNOMAH )

This instrument was acknowledged before me by Tom Potter, the Mayor of the City of Portland, Oregon, a municipal corporation of the State of Oregon, on behalf of and as the act and deed of said corporation on this the day of , 2006.

________________________________________

NOTARY PUBLIC, STATE OF OREGON

Printed Name:_____________________________

My Commission Expires:

STATE OF OREGON )

) ss.

COUNTY OF MULTNOMAH )

This instrument was acknowledged before me by Gary Blackmer, the Auditor of the City of Portland, Oregon, a municipal corporation of the State of Oregon, on behalf of and as the act and deed of said corporation on this the day of , 2006.

________________________________________

NOTARY PUBLIC, STATE OF OREGON

Printed Name: ____________________________

My Commission Expires:

STATE OF OREGON )

) ss.

COUNTY OF MULTNOMAH )

This instrument was acknowledged before me by Gregory A. Chaille, the President of The Oregon Community Foundation, on behalf of and as the act and deed of said corporation on this the day of , 2005.

________________________________________

NOTARY PUBLIC, STATE OF OREGON

Printed Name: ____________________________

My Commission Expires: