Attachment A
After recording return to:
Property Manager
Portland Parks and Recreation
1120 SW 5th, Suite 1320
Portland, OR 97204
NON-EXCLUSIVE ACCESS EASEMENT
The City of Portland, a municipal corporation of the State of Oregon, acting through its Bureau of Parks and Recreation, Grantor, does hereby grant to Metro and North Clackamas Parks and Recreation District, a county service district, both municipal corporations and political subdivisions of the State of Oregon, and collectively referred to herein as Grantee, a nonexclusive easement (the Easement) on and over the Springwater Corridor in T1S R2E, Section 29AB, W.M., with said easement specifically depicted on Exhibit A hereto.
TERMS, CONDITIONS and COVENANTS
1. The Easement is granted to Grantee, in accordance with authority provided by City Council Ordinance No. ___________________ solely for access to Grantee’s adjacent property required for the construction, operation and maintenance of certain public improvements. All other rights are reserved to Grantor, its successors or assigns. No rights are granted to the general public under this Easement.
2. The Easement is for the benefit of Grantee’s adjacent property (the Property), with the Property more specifically described on Exhibit B hereto.
3. This Easement is subject to all prior existing rights or interests within the Easement area, including those held by the Portland General Electric Company, as of the date of this Easement. Grantor makes no representations or warranties, express or implied, as to suitability, title, access, or quiet enjoyment of the Easement area, or any portion thereof.
4. The term of the Easement will be twenty years (20) from that date upon which the Easement has been fully executed by the parties to the Easement. Grantee will make a good faith effort to acquire alternate access to the Property during the term of the Easement. Notwithstanding the twenty (20) year term, the Easement will terminate upon acquisition of said alternate access.
5. Grantee hereby acknowledges the paramount use of Springwater Corridor is for the public’s use and enjoyment and hereby agrees to conduct all activities approved under this easement in strict accordance with applicable provisions of law and administrative rules adopted by the City of Portland for the Springwater Corridor, as those laws and rules may change over time.
6. Grantee shall notify Grantor in advance of its intent to access the Property for routine matters, with said access not to disrupt public use and enjoyment of the trail in an unreasonable manner. As to significant access needs associated with non-emergency construction, maintenance and repairs, Grantee will submit written plans for said access to Grantor and not commence planned access activities until Grantee and Grantor have agreed to written operating stipulations for the planned access activities, with said stipulations to include, but not be limited to, reasonable plans for accommodating ongoing public use of the Springwater Trail, either within the Easement or through an agreed upon detour plan. In the event of emergency access needs, Grantee will make a reasonable effort to contact Grantee prior to exercising its rights under the Easement. Grantee reserves the right to temporarily restrict Grantee’s access to the Easement when such access could interfere with special events held on the Springwater Trail or with Grantor’s maintenance or repair work in the Easement.
7. Grantee will pay its share of routine maintenance and repair costs resulting from Grantee's planned and likely access activities within the Easement, with said payments to commence upon completion of NCPRD park improvements on the property benefited by this Easement. Annual payments will be due on or before the 1st day of January of each year and shall be equal to $1,000.00 per year, increased annually by 3.5%. For example, if the annual fee requirement does not commence until January of 2011, then the required fee at that time will be $1,071.00, increasing by 3.5% annually thereafter. Notwithstanding said requirement, Grantee will be fully responsible for repairing, or paying for the repair of, all damage caused by Grantees access activities under the Easement. Should Grantee fail to complete the repair work to the satisfaction of Grantor, Grantor, at its sole discretion, may complete said work on behalf of Grantee, in which case Grantee shall reimburse Grantor for said work within thirty (30) days of receiving a written invoice from Grantor.
8. Grantee will provide Grantor with reasonable opportunities to review and comment on development plans for the Property, with the purpose of said review to be limited to facilitating effective connectivity between the Springwater Trail and the Property for recreational purposes.
9. Grantor recognizes that the Grantee is self-insured. Grantee shall, however, require that all its contractors and subcontractors maintain public liability and property damage insurance that protects the Grantor 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 work under this Easement. The insurance shall provide coverage for not less than $1,000,000 for personal injury to each person, $1,000,000 for each occurrence, and $1,000,000 for each occurrence involving property damage; or a single limit policy of not less than $1,000,000 covering all claims per occurrence. Required levels of insurance are subject to reasonable increases at the sole discretion of Grantor.
The insurance shall be without prejudice to coverage otherwise existing and shall name as additional insureds the Grantor 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 the insurance shall not terminate or be canceled without thirty (30) days written notice first being given to the Property Manager, Portland Parks and Recreation. If the insurance is canceled or terminated prior to completion of the Easement, the Grantee’s contractors shall provide a new policy with the same coverage. The insurance provided for in this Section shall include coverage for any damages or injuries arising out of the use of automobiles or other motorized vehicles.
10. Subject to the limits of the Oregon Tort Claims Act and Oregon Constitution, Grantee shall indemnify, defend and hold harmless the Grantor, its officers, directors, agents and employees from any and all liability, damages, expenses, attorneys fees, causes of action, suits, claims or judgments, arising out of or connected with Grantee’s use or occupancy of the Easement. In addition to the indemnity provided above, Grantee agrees to indemnify, defend and hold harmless Grantor, its officers, directors, agents and employees from and against all damages, costs, liabilities, and expenses caused by, arising out of, or in connection with, the handling, storage, discharge, transportation or disposal of hazardous or toxic wastes or substances, pollutants, oils, materials or contaminants, as those terms are defined by federal, state or local law or regulation, as amended from time to time, by or on behalf of Grantee on or about the easement. Damages, costs, liabilities and expenses shall include any amounts claimed to be owed by any regulating and administering agency. Grantee shall not be required to indemnify, hold harmless or defend Grantor from any claim, damage, loss, liability, cost or expense arising solely out of Grantor’s gross negligence or willful misconduct.
11. Grantee acknowledges Grantor’s obligation to maintain the Easement area in such a way as to accommodate construction and operation of a rail line in the future. In the event that this obligation requires relocation and/or reconstruction of the Facilities, said relocation and/or reconstruction will be completed at Grantee’s sole expense and liability. Grantee shall not be required to construct any part of the rail line and shall not be responsible for signals or crossings for the line. Grantee and Grantor shall make a good faith effort to agree on the most economical design to permit relocation and/or reconstruction of the Facilities, but Grantor shall not be liable for any harm or costs to Grantee, including harm or cost incurred in the event that no reasonable alternative exists for relocating and/or reconstructing the Facilities on Grantor’s property. In the event of no reasonable relocation alternative on Grantor’s property, the Easement will terminate.
12. Grantee’s privileges issued under this Easement shall not limit the Grantor’s authority to grant additional rights, privileges or interests within the Easement area.
13. Grantee is responsible for payment of all taxes and property assessments, if any, related to Grantee’s use of the Easement.
14. Grantee shall keep the Easement area free from any liens arising from any work performed, materials furnished, or obligations incurred by or at the request of Grantee.
15. Grantor shall not be deemed to have waived any breach of this Easement except by an express waiver in writing. Any express waiver by the Grantor of the breach of any condition, covenant, or agreement herein contained to be kept, observed and performed by the Grantee shall in no way impair the right of the Grantor 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.
16. Upon abandonment or termination of this Easement for cause, Grantee shall, at Grantee’s sole expense, complete any outstanding repair obligations to the full satisfaction of Grantor. Should Grantee fail to complete the repair work to the satisfaction of Grantor, Grantor, at its sole discretion, may complete said work on behalf of Grantee, in which case Grantee shall reimburse Grantor for said work within thirty (30) days of receiving a written invoice from Grantor.
17. This Easement is granted in consideration of ten dollars ($10.00) and other good and valuable consideration received by Grantor, the receipt of which is hereby acknowledged by Grantor.
18. All notices under this Permit shall be in writing and shall be deemed validly given if sent by first class or certified mail, nationally recognized courier or facsimile transmission, and shall be effective upon receipt. Notices should be addressed as follows:
GRANTOR GRANTEE
Portland Parks and Recreation
1120 SW 5th Ave, Suite 1302
Portland, OR 97204-1933
Attention: Property Manager
IN WITNESS WHEREOF, the parties hereto execute this Easement.
By: __________________________________ Date: ______________
Printed Name & Title:
STATE OF OREGON
COUNTY OF MULTNOMAH
This instrument was acknowledged before me on 2008, by, __________________________________________________________.
Notary Public for Oregon
My Commission expires
By: __________________________________ Date: ______________
Printed Name & Title:
STATE OF OREGON
COUNTY OF CLACKAMAS
This instrument was acknowledged before me on 2008, by, __________________________________________________________.
Notary Public for Oregon
My Commission expires
CITY OF PORTLAND, PARKS AND RECREATION BUREAU
By: _________________________________ Date: _____________
Nick Fish, Commissioner in Charge
STATE OF OREGON
COUNTY OF MULTNOMAH
This instrument was acknowledged before me on 2008, by Nick Fish, Commissioner in Charge, City of Portland Bureau of Parks and Recreation.
Approved as to Form:
______________________________________
Notary Public for Oregon ___________________
My Commission expires ___________________ City Attorney