City Auditor - City Recorder - Council Ordinance - 182611 Columbia Slough Watershed Council Whitaker Ponds Natural Area management agreement

This agreement (this “Agreement”) is made and executed as of the ____ day of ______________________ 2009, by and between the CITY OF PORTLAND, by and through its PARKS and RECREATION BUREAU (hereinafter “City” or “PPR”), and Columbia Slough Watershed Council (hereinafter “CSWC”), collectively referred to as “the Parties.”

WHEREAS, City is the owner and/or manager of Whitaker Ponds Natural Area (Whitaker Ponds) located in NE Portland, which includes a house and garage located at 6850 NE 47^th Avenue (Bunn House) and the Talbert House located at 7040 NE 47^th Ave (Talbert House);

WHEREAS, CSWC is a tax exempt, non-profit Oregon corporation organized to foster action to protect, enhance, restore and revitalize the Columbia Slough and its watershed;

WHEREAS, CSWC has used the Talbert House as classroom and office space since 1996 but intends, if feasible, to renovate the Bunn House and then move out of the Talbert House and into the Bunn House;

WHEREAS, CSWC and City, through PPR and Bureau of Environmental Services (BES), have a long-standing working relationship to provide educational programs, outreach events, and recreational opportunities at Whitaker Ponds;

WHEREAS, the Whitaker Ponds Management Committee (Management Committee), consisting of representatives from CSWC, PPR and BES, meets regularly to discuss activities, future plans, and concerns related to Whitaker Ponds;

WHEREAS, a primary goal articulated in the 2006 Whitaker Ponds Master Plan (the Master Plan) is the continued use of the site for environmental education programs in partnership with CSWC;

WHEREAS, the purpose of this Agreement is to define the relationship between City and CSWC in regard to their respective purposes, responsibilities, and accountability as to the Premises;

NOW, THEREFORE, in consideration of the mutual covenants and benefits stated herein, and in further consideration of the obligations, terms and considerations hereinafter set forth and recited, City and CSWC agree as follows:

1. Purpose. The purpose of the Agreement is to provide for the ongoing management and programming of Whitaker Ponds in accordance with the terms and conditions of this Agreement.

2. Appointment. City hereby retains, engages, and appoints CSWC as City’s agent to perform certain management services at Whitaker Ponds on its behalf, with said management to be: (i) consistent with the intent of the Master Plan; (ii) generally in accordance with principles and practices applicable to management of a public asset; and (iii)specifically in accordance with the terms and conditions of this Agreement.

3. Premises. Unless otherwise agreed to in writing, the rights and responsibilities of CSWC under this Agreement apply to the whole of Whitaker Ponds (Premises) as depicted on Exhibit A hereto.

4. Term. The Agreement will have an initial term of five (5) years. So long as CSWC is not in default at the expiration of the initial term, the Agreement will automatically renew for one additional five (5) year term, unless either party gives sixty (60) days notice to the other party of its intent not to renew. Notwithstanding said term, the intent of PPR is a long term relationship with CSWC as to the Premises, with this intent to be achieved through new agreements at the end of each ten-year interval. New agreements will require City Council approval.

5. License to Use the Property. City hereby grants CSWC a non-exclusive license to use and occupy Whitaker Ponds to the extent necessary to fulfill its responsibilities under this Agreement, with the understanding that said rights are contractual only, with no property rights being conveyed hereunder. Unless consistent with City policies and regulations pertaining to Whitaker Ponds, CSWC shall not restrict access of the public to Whitaker Ponds, without the written consent of PPR. The public does not have the right to use or access the CSWC offices and indoor classrooms, without the consent of CSWC.

6. Acceptance of the Premises. Except as otherwise provided herein, CSWC accepts Whitaker Ponds on an “as-is” basis, with no representations or warranties, express or implied, being made by the City, its officers, agents or employees. Furthermore, CSWC accepts its responsibilities under this Agreement subject to the valid existing agreements and rights of others, including, but not limited to, existing permits, licenses, and easements.

In consideration of services provided by CSWC under this Agreement, CSWC shall be authorized to use Premises as provided for under this agreement without compensation to PPR. This authorization shall include using the Talbert House or Bunn House once it has been renovated, for offices and classroom space. Use of the Bunn garage for storage is also authorized. Once CSWC moves into the Bunn House, it will no longer be authorized to use the Talbert House.

8. Scope of Services. CSWC will manage Whitaker Ponds in a professional and fully accountable manner, with management services to include the following, at a minimum:

A. Employees. CSWC will hire, train, supervise and regularly evaluate all employees and volunteers required to carry out CSWC’s responsibilities provided for herein. All employees and volunteers supervised by CSWC shall be employees or volunteers of CSWC and not the City.

B. Board Membership. The City Nature Manager or manager’s designee, will be an ongoing Board member of CSWC.

C. Programming Guidelines. CSWC will have the lead responsibility for environmental education programming for the Premises, but it is intended that programming will be designed to meet City, as well as CSWC, educational goals. Each year by August 1 CSWC will submit its annual programming plan to the Management Committee for its review and approval. The plan may be amended with approval of the Management Committee.

D. Fund Raising. CSWC is authorized to conduct fund raising activities on the Premises with the understanding that said fund raising activities shall be conducted in accordance with use policies for the Premises and that funds raised will either directly or indirectly benefit the Premises or further the goals of CSWC and PPR. Prior to holding a fundraising activity on the Premises, CSWC will get approval for the event from PPR’s City Nature East Manager.

1. Develop, install, and maintain reasonably appropriate accounting, operating, and administrative controls governing the financial aspects of this Agreement, such controls to be consistent (in all material respects) with generally accepted accounting principles;

2. Prepare and approve an annual budget for management activities under this Agreement, with a copy of this budget to be provided to PPR;

3. Provide PPR with regular reports prepared for the Board and its committees related to the Premises with reports to include, but not be limited to, regular year-end financial statements.

4. Provide PPR with copies of reports and documents provided to the Oregon Department of Justice and/or Secretary of State, with such documents to include CSWC’s annual Oregon 990 Form and revised Articles of Incorporation.

5. Pay or arrange for payment of all costs that CSWC is responsible for under the Agreement, including, but not limited to utility, personnel, contracting and CSWC’s share of maintenance costs associated with the Whitaker Ponds; and

6. Assist City in efforts to secure City Council appropriations to address operating, maintenance and capital improvement needs of Whitaker Ponds

F. General Maintenance, Restoration, Repair, Safety and Capital Improvements. CSWC will:

1. Provide general care of the Premises, which shall include keeping the Premises reasonably free of trash and debris, monitoring and reporting safety concerns at Whitaker Ponds, and providing routine cleaning and maintenance of the boardwalk, docks, and gazebo to the extent necessary to keep them clean and safe. The storage sheds located near the Talbert House are the sole responsibility of CSWC.

2. To aid in the City’s restoration and landscaping goals at Whitaker Ponds, CSWC shall:

(b) Resurface and maintain trails to PPR standards. This work shall be performed in coordination with PPR staff and no new trails shall be constructed without the written approval of City Nature staff.

3. Promptly, after becoming aware of such conditions or practices, correct any unsafe condition at Whitaker Ponds for which CSWC is responsible, as well as any unsafe practices by persons reasonably under CSWC’s control thereon.

4. Adhere to applicable provisions of the PPR Red Book, including, but not limited to, timely reporting of damage or injury incidents on a PPR incident report form. The Red Book is available on line at http://www.parks.city/wca/employee_orientation/redbook/default.asp, or can be obtained by contacting the PPR Property Manager. CSWC shall cooperate fully with City in the investigation of any damage to persons or property occurring on or about the Whitaker Ponds;

5. Consult with PPR City Nature East Zone Manager as to safety or maintenance concerns associated with the grounds and structural components of Whitaker Ponds; and

6. Not make any capital improvements at Whitaker Ponds without the written authorization of Parks’ Property Manger. City authorization will require review and approval of plans prepared at CSWC’s cost by licensed engineers or contractors. “Capital improvements” shall mean any permanent structural change or addition to the Whitaker Ponds. Minor or temporary improvements shall require the approval of the City Nature East Manager, or her designee.

1. Talbert House: CSWC shall maintain the interior of the Talbert House in a safe and clean condition at all times, and perform any desired cosmetic enhancements to the House. CSWC shall also be responsible for maintaining the lawn, shrubbery and other landscaping in the immediate vicinity of the Talbert House. Once CSWC completely vacates the Talbert House, the requirements of this subsection G.1. will no longer apply.

(a) CSWC shall have access to the Bunn House to assess the condition of the house for use as classroom and office space. Such assessment shall be made in consultation with licensed professionals and PPR staff. CSWC will submit to PPR Property Management detailed plans, prepared by licensed engineers or contractors, of any and all proposed repairs and improvements to be made. CSWC shall not undertake any alterations or improvements without the written approval of the PPR Property Manager, which shall not be unreasonably withheld.

(b) CSWC shall be responsible for obtaining all permits required to improve the Bunn House, and for managing all contractors needed to make the improvements. At all times, CSWC shall keep the Bunn Property in a safe and secure condition, which may require adding fencing or signage to keep people away from the work zone.

(c) All costs associated with assessing, improving, repairing, or maintaining the Bunn House shall be the sole responsibility of CSWC unless otherwise agreed in writing.

(d) Any alterations and improvements that attach to the realty shall become the property of PPR.

(e) CSWC shall be responsible for performing all maintenance and repairs, other than those expressly assumed by PPR, necessary to keep the interior, exterior, and grounds of the Bunn House in a clean, neat, safe and repaired condition, in compliance with all applicable federal, state and local laws, rules, and regulations. The Parties agree that once the renovations to the Bunn House are complete, they will meet to discuss the allocation of maintenance responsibilities for the Bunn House.

(f) In the event that PPR, at its sole discretion, determines that it serves the best interest of the City that the Bunn House be demolished or relocated to achieve the long-term intentions for the Premises under the Master Plan, CSWC will be responsible for securing replacement facilities for itself and its planned programs. Notwithstanding this requirement, it is the intention of PPR to incorporate CSWC and its environmental education programming, outreach events, and recreational opportunities into planned upgrades to the Premises.

H. Security. CSWC shall keep the Premises secured, which includes, but is not limited to, locking the gate, doors and windows of buildings, and cabinets at the gazebo, as well as engaging the alarm system, if installed, when CSWC staff is not present. CSWC will provide an adequate level of security or crowd control personnel for protection of the Whitaker Ponds assets and the general public during public events at Whitaker Ponds.

I. Hazardous Materials. CSWC shall not dispose at, on or about Whitaker Ponds any Hazardous Substance (as defined in ORS 465.200 or as it may hereafter be amended, and any implementing regulations) and shall handle all Hazardous Substances in a manner that protects Whitaker Ponds and the environment from accidental spills and releases. CSWC, or any of its directors, officers, employees, agents, contractors, subcontractors, servants, successors, assigns, lessees, permittees, licensees, or invitees shall not cause or authorize to occur any unauthorized release of a Hazardous Substance or any condition of pollution or nuisance at, on or about Whitaker Ponds, whether affecting surface water or groundwater, air, the land or the subsurface environment.

J. Records and Inspection. CSWC will maintain a set of all financial, vendor, employee and operating records relating to its activities under this Agreement. At any time during the Term, City shall have the right, after reasonable notice to CSWC, to inspect and audit the books, records, invoices, deposits, canceled checks, or other financial data or transactions of CSWC at reasonable times and during normal business hours; provided, however, City shall use its best efforts to not cause any unreasonable disruptions in the operations of CSWC in connection with such inspections.

K. Consultation. In addition to specific consultation requirements provided for elsewhere herein, CSWC will consult with City on other matters related to the Premises, when reasonably necessary to do so. It is understood that much of this consultation will occur through the Management Committee. All issues concerning CSWC’s interest in the property or this Agreement should be directed to PPR’s Property Manager.

L. Media and Publications. CSWC will consult with PPR’s Property Manager prior to providing to the media any press releases or information that directly concerns Whitaker Ponds or PPR.

CSWC shall use its best efforts to acknowledge its relationship with the City, by including the official logo of PPR and its slogan “Healthy Parks Healthy Portland” or other slogans as developed from time to time, on all signage and in any publications, media presentations or other presentations that specifically refer to Whitaker Ponds.

M. Taxes and Assessments. CSWC will pay any and all applicable federal, state or local taxes assessed against the Whitaker Ponds or against distributions to CSWC under this Agreement. PPR will continue to pay all assessments of the Multnomah Drainage District that are not triggered by CSWC’s use of the Premises.

N. Compliance with Law. The acts of CSWC under this Agreement shall at all times comply with all applicable federal, state and local laws, rules, regulations, ordinances, statutes, decisions, licensing and permitting requirements, and agreements.

O. Volunteers. PPR is willing to provide assistance and advice regarding volunteers, but, unless otherwise agreed to in writing, all volunteers working at the request or direction of CSWC at Whitaker Ponds are volunteers of CSWC for insurance and liability purposes. CSWC will report the hours of all volunteers working at Whitaker Ponds to PPR’s Natural Resource Volunteer Coordinator on an annual basis.

P. Utilities. CSWC will maintain all utility accounts related to the Talbert and Bunn Houses and pay, when due, all utility bills, including but not limited to electricity, water, gas, phone, and trash removal. Once CSWC has vacated the Talbert House, it will no longer be responsible for any utilities connected to that House.

9. City Retained Responsibilities, Rights and Authorities. City hereby reserves to itself all rights and authorities not specifically granted to CSWC under this Agreement. At a minimum, the City retains the following responsibilities, rights and authorities:

A. Right of Entry. City reserves the right to enter the Premises, including the Bunn and Talbert Houses, for any purpose, including evaluation of CSWC services, with the understanding that when exercising said right City will make a reasonable effort to minimize disturbances to CSWC activities and to provide reasonable notice under the circumstances before entering. It is expressly understood by the parties that City, whether or not it conducts visits or inspections, assumes no responsibility for the quality, adequacy or safety of any work that is done by or for CSWC.

B. Use of Premises. The City shall have the right to use the Premises with the understanding that said use will not unreasonably conflict with CSWC activities on the Premises. In an effort to avoid unreasonable conflicts, PPR will provide CSWC with reasonable notice of intended uses of the Premises, including reasonable use of classroom space on the Premises when said space is not being used by CSWC.

C. General Maintenance. Subject to available funding and with the exception of maintenance and repair responsibilities expressly assumed by CSWC or made necessary by negligent or inappropriate uses of the Whitaker Ponds by CSWC, City will provide all maintenance and repairs required to maintain the Premises, other than the Bunn House, in a condition similar to other PPR natural areas.

D. Emergency Repairs. PPR reserves the right, in its sole discretion, to make emergency repairs to the Bunn House when said repairs are necessary to address immediate health and safety concerns. CSWC shall reimburse PPR for all reasonable costs of emergency repairs. To the extent that it is reasonable to do so, PPR will make a good faith effort to coordinate with CSWC as to these repairs.

10. Joint PPR and CSWC Efforts. To the extent resources allow, the Parties will cooperate on planning, fund raising and development activities necessary to achieve the long-term intentions of the Master Plan, including the intention that a new environmental learning center be constructed on the Premises.

11. Damage to Premises. If the Premises is damaged as a result of the acts or omissions of CSWC or its officers, employees, agents, contractors, licensees, permittees, invitees, or others acting under the direction and/or control of CSWC, CSWC will promptly notify PPR and shall, at PPR's option and in cooperation with CSWC’s insurance carrier, if a claim is involved, either repair or replace the affected property at CSWC’s expense or shall reimburse PPR for its reasonable costs of repairing or replacing the affected property.

12. No Liens. CSWC shall keep Whitaker Ponds, and all City property used in connection with this agreement, free from any liens arising from any work performed, materials furnished, or obligations incurred by or at the request of CSWC. If any lien is filed against any portion of Whitaker Ponds or other City property used in connection with this Agreement, as a result of the acts or omissions of CSWC, or of CSWC’s employees, agents, or contractors, CSWC shall discharge, bond or otherwise secure the same to City’s reasonable satisfaction within thirty (30) days after CSWC has notice that the lien has been filed. If CSWC fails to discharge, bond or secure any lien within such thirty (30) day period, then, in addition to any other right or remedy of City, City may, at its election, upon five (5) days’ prior written notice to CSWC, discharge the lien by either paying the amount claimed to be due or obtaining the discharge by deposit with a court or a title company or by bonding. CSWC shall pay on demand any amount so paid by City for the discharge or satisfaction of any lien, and all reasonable attorneys’ fees and other legal expenses of City incurred in defending any such action or in obtaining the discharge of such lien, together with all necessary reasonable disbursements in connection therewith.

A. Indemnification by CSWC. CSWC shall indemnify, protect and defend the City, its directors, officers, employees and agents, against, and hold the City, its directors, officers, employees and agents, harmless from any and all liabilities, obligations, losses, damages, fines, penalties, claims, demands, suits, actions, causes of action, charges, judgments, costs and expenses (including all reasonable attorneys’ fees and court costs) (collectively, “Losses”) of any nature whatsoever that may be imposed upon, incurred or paid by, or asserted against the City, its directors, officers, employees and agents, CSWC, Whitaker Ponds or any interest therein to the extent that such Losses are the result of, arise from, or are in connection with any of the following:

1. Any injury to or death of any person or any damage to property occurring from any use of or cause in, on or about Whitaker Ponds to the extent arising from the acts or omissions of CSWC or its agents, representatives, employees, contractors, subcontractors, successors, assigns or invitees;

2. The use, non-use, condition, possession, occupation, operation, repair, maintenance or management of the portion of Whitaker Ponds occupied and maintained by CSWC or any part thereof, or of the CSWC improvements or any component thereof to the extent arising from the acts or omissions of CSWC or its agents, representatives, employees, contractors, subcontractors, successors, assigns or invitees;

3. Any construction, reconstruction, repairs, changes or alterations on or to, or any work done in, on or about, Whitaker Ponds or any part thereof by or at the direction of CSWC;

4. Any negligent or tortuous act on the part of CSWC or any of its agents, representatives, employees, contractors, subcontractors, successors, assigns or invitees;

5. The release of any Hazardous Substance on Whitaker Ponds or the migration of any Hazardous Substances to other properties or released into the environment, caused by or resulting from the negligence or willful misconduct of CSWC or its agents, representatives, employees, contractors, subcontractors, successors, assigns or invitees.

6. Failure or apparent failure of CSWC to comply with any contract or agreement, including this Agreement, to which CSWC is a party or any law, regulation, rule, ordinance, statute or decision, in each case affecting Whitaker Ponds, or CSWC’s use thereof, or CSWC’s occupancy, use, possession, operation, repair, maintenance or management of or any portion of Whitaker Ponds pursuant hereto.

B. Exclusion. There is hereby expressly excluded from the scope of the foregoing indemnity any matter to the extent that such matter results from the negligence or willful misconduct of City (or its directors, employees, agents, contractors or licensees).

C. Contractors and Other Authorized Users. CSWC will include sufficient indemnification language in its contracts and other written authorizations indemnifying City from any and all claims related to the contract work or authorized uses.

D. Defense of Claims. If any action or proceeding is brought against the City, its directors, officers, employees or agents, which action or proceeding is based upon a claim for which CSWC is obligated to indemnify the City hereunder, CSWC shall, upon notice from the City, at CSWC’s expense, defend such action or proceeding through counsel reasonably acceptable to City.

A. Insurance Requirements. During the term of this Agreement, CSWC shall maintain insurance that satisfies City’s standard insurance requirements for permit and license holders. A copy of City’s current requirements is attached hereto as Exhibit ___. City may notify CSWC, from time to time, of changes in City’s standard insurance requirements. Furthermore, CSWC will require all its contractors to maintain the same insurance coverage that is required of CSWC.

B. Waiver of Subrogation. CSWC and City each agree to waive claims arising in any manner in favor of either City and CSWC and against the other for loss or damage to their property located within or constituting a part or all of the Premises or for loss due to bodily injury to the extent the loss or damage is covered by property or liability insurance the party is required to carry under this Agreement. The waiver also applies to CSWC’s directors, officers, employees, shareholders and agents and to City’s officers, agents and employees. The waiver does not apply to claims arising from the willful misconduct of CSWC or City. Notwithstanding anything to the contrary herein, the waiver of subrogation does not apply to deductible amounts that the Parties are responsible for under their respective insurance policies.

A. Events of Default. The following events shall constitute events of default by CSWC:

1. If CSWC fails to perform any covenant in this Agreement within thirty (30) days after written notice from PPR specifying the failure, provided that if such failure cannot, with due diligence, be cured within a period of thirty (30) days, CSWC shall not be deemed to be in default if CSWC begins to cure the failure within such thirty (30) day period and thereafter diligently prosecutes such cure to completion;

2. The bankruptcy or insolvency of CSWC or if a receiver or trustee is appointed to take charge of any of the assets of CSWC in or on the Whitaker Ponds and such receiver or trustee is not removed within thirty (30) days after the date of appointment, or in the event of judicial sale of the personal property in or on the Premises upon judgment against agreements thereunder; or

3. If CSWC is dissolved or fails to maintain its status as an Oregon non-profit corporation in good standing or its qualification as a tax-exempt charitable organization under Section 501(c)(3) of the Internal Revenue Code.

B. Remedies for Default. Upon the occurrence of an event of default under this Section 15, City shall have the following rights and remedies, as well as any other remedies available at law or in equity.

1. City shall have the right to suspend CSWC’s use of the Premises until the default is cured.

2. If the default is not cured, City shall have the right to terminate this Agreement by written notice to CSWC. Such termination shall be effective immediately if public health, safety or welfare is at risk. Otherwise such termination shall be effective thirty (30) days after the written notice.

C. Exclusion of Certain Damages. Neither party shall be liable to the other party hereunder or in connection with the transactions contemplated hereunder, whether in contract or in tort, for indirect, incidental, exemplary, punitive, consequential or other special damages (including lost profits), whether or not such damages are foreseeable or unforeseeable, except to the extent that such damages are included in third-party claims that are covered by the indemnities under Section 14.

1. Neither City nor CSWC shall be in default hereunder if the performance of any act required of it hereunder is prevented or delayed by reason of events, contingencies or causes beyond its reasonable control and without its fault, including, but not limited to, fire, flood, earthquakes, lightning, unusually severe weather, acts of God, acts of any governmental authority, war, riot, accidents, embargoes, strikes, labor disputes, shortage of labor, fuel, raw materials, or machinery, or technical or yield failure, affecting such party or its suppliers or subcontractors.

2. Notwithstanding to the contrary herein, if the Premises are rendered unusable by an event described in this Section and if such condition continues for more than sixty (60) consecutive days, or if City notifies CSWC that it is impractical or uneconomic to restore any physical damage that is responsible for the interruption of service, either City or CSWC may terminate this Agreement by written notice to the other party.

A. Voluntary Termination. Either Party may voluntarily terminate the Agreement with no less than six (6) months written notice to the other party.

B. Termination Process. Upon expiration of the Agreement term or early termination, CSWC shall deliver all keys to City and shall surrender the Premises to City in first class condition. All repairs for which CSWC is responsible shall be completed prior to such surrender. All CSWC property shall be removed immediately upon termination, and a failure to do so shall be considered abandonment of such property. Should CSWC fail to effect the removals or make repairs, City may do so and charge the cost to CSWC together with late charges as provided by this Agreement from the date of the expenditure. CSWC shall be responsible for all costs and damages to City as a result of CSWC's failure to surrender the Premises in accordance with the Agreement, and this clause shall survive the termination of the Agreement.

C. Ownership upon Termination or Expiration. Upon the expiration or termination of this Agreement, all fixtures, improvements and personal property located on or associated with the operation of Whitaker Ponds premises shall become the property of the City. After satisfaction of CSWC’s obligations outstanding as of the date of expiration or termination, all money remaining in CSWC’s possession or accounts received as donations or sponsorships specifically for Whitaker Ponds, shall become the property of the City, to be used exclusively for operating, programming, maintaining, repairing and improving the Whitaker Ponds and in accordance with any or all donor or granting organization restrictions.

A. City Consent. Unless otherwise stated, whenever consent, approval or direction by City is required under the terms contained herein, all such consent, approval or direction must be in writing from the Director of PPR or a person designated in writing by the Director.

B. CSWC/City Coordination and Cooperation. CSWC and the City will take cooperative actions, as reasonably necessary, to fulfill the intent of this Agreement.

C. Third-Party Rights. Except as provided for in this Agreement, CSWC may not lease, license, transfer to, or swap, exchange with, or otherwise allow the use of the Premises by third parties. It is understood and agreed that, notwithstanding any such arrangements, no such third party shall have any rights under this Agreement, either as a party hereto or a third-party beneficiary.

D. Signage: CSWC may not display or erect any permanent signs at Whitaker Ponds without the advanced, written approval of PPR.

1. PPR may assign, at its sole discretion, this Agreement to any successor entity having responsibility for PPR management and/or operation of Whitaker Ponds; and the assignee shall be responsible for the performance of all terms and conditions of this Agreement applicable to PPR.

2. Rights granted under this Agreement are personal to CSWC, and may not be assigned, transferred, sold, conveyed, or otherwise hypothecated without the prior express written consent of PPR, which consent may be granted or denied in its sole discretion.

F. Notices. All notices under this Agreement shall be in writing and shall be deemed validly given if sent by mail, nationally recognized courier or facsimile transmission, and shall be effective upon receipt. If any such notice or communication is not received or cannot be delivered due to a change in the address of the receiving party of which notice was not previously given to the sending party or due to a refusal to accept by the receiving party, such notice or other communication shall be effective on the date delivery is attempted. Notices should be addressed as follows, except that CSWC’s communications to City concerning insurance coverage should be sent to the addresses described in Exhibit ___:

PPR:

Portland Parks and Recreation Bureau

1120 SW 5^th Ave, Suite 1302

Portland, Or 97024

Attention: Property Manager

Telephone: (503) 823-

Facsimile: (503) 823-5570

With a copy to:

City of Portland

1221 SW 4^th Ave, Room 430

Portland, OR 97204

Attention: Harry Auerbach

Telephone: (503) 823-4047

Facsimile: (503) 823-3089

CSWC:

Columbia Slough Watershed Council

7040 NE 47^th Ave.
Portland, OR 97208

Attention: Executive Director

Telephone: (503) 281-1132

Facsimile: (503)

Any party may change the designated recipient of notices by so notifying the other party in writing.

G. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Oregon, excluding its choice of law principles.

H. Forum. Any litigation between the City and CSWC arising under this Agreement, or out of work performed under this, 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.

I. Disputes. The Parties will make a good faith effort to resolve disputes in a reasonable manner and will proceed through the following courses of action prior to resorting to litigation: party to party negotiations; administrative appeals; and mediation and/or non-binding arbitration.

J. Construction and Interpretation of Agreement. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or considering same shall not apply the presumption that the terms hereof shall be more strictly construed against a party by reason of the rule or conclusion that a document should be construed more strictly against the party who prepared it. It is agreed and stipulated that all parties hereto have equally participated in the preparation of this Agreement and that each party had the opportunity to consult legal counsel before the execution of this Agreement.

K. Entire Agreement. This Agreement constitutes the entire agreement of the parties and shall supersede any prior or contemporaneous agreements or negotiations, whether written or oral, between the parties, regarding the subject matter herein.

L. Further Documents. Each party agrees to cooperate with the other in the execution of any documents necessary to protect its rights under this Agreement.

M. Illegality. If any provision of this Agreement is determined by a proper court to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement and this Agreement shall remain in full force and effect without such invalid, illegal or unenforceable provision.

N. Waiver in Writing. No waiver of any provision of this Agreement or any breach of this Agreement shall be effective unless such waiver is in writing and signed by the waiving party and any such waiver shall not be deemed a waiver of any other provision of this Agreement or any other or subsequent breach of this Agreement.

O. The Rights to Gather and Be Heard. CSWC will not take any action which would be considered a denial of the public’s constitutional right to gather and be heard in the common areas of Whitaker Ponds.

P. No Partnership. Nothing contained in this Agreement is intended to create, or shall in any event or under any circumstance be construed as creating, a partnership or a joint venture between PPR and CSWC.

Q. Exhibits; Successors; Time of Essence; Counterparts; Amendments. The Exhibits attached to this Agreement are made a part of this Agreement. This Agreement shall benefit and bind PPR and CSWC and their respective personal representatives, heirs, successors and assigns. Time is of the essence of this Agreement. This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one and the same Agreement. This Agreement may not be amended or modified except by a written instrument signed by PPR and CSWC. The Director of Parks and Recreation is authorized to sign any amendment to this Agreement that does not have a significant financial impact on the City.

IN WITNESS WHEREOF, PPR and CSWC have caused their duly authorized representatives to execute this Agreement in triplicate.

At all times during the life of this Agreement, or as may further be required by this Agreement, CSWC at its own cost and expense, shall provide the insurance specified as follows:

CSWC and its contractors or subcontractors, if any, shall maintain on file with the Property Manager, Portland Parks and Recreation, a certificate of insurance certifying the coverage required under this Agreement. Such certification shall be submitted to PPR at or before execution of this Agreement and then annually for the duration of the 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.

The insurance policy shall provide that the insurance shall not terminate or be materially changed without thirty (30) days written notice first being given to Portland Parks and Recreation. Notices shall be sent to the PPR’s Manager, Strategy, Finance and Business Development, 1120 SW 5^th Ave, Suite 1320, Portland, Oregon 97204. If the insurance coverage is canceled, terminated, or reduced prior to completion of the Agreement, the CSWC or its contractors or subcontractors, if any, shall provide a new policy with the coverage required under this Agreement. The CSWC and its contractors shall maintain continuous, uninterrupted coverage for the duration of the permit.

A. CSWC and its contractors and subcontractors, if any, shall maintain public liability and property damage insurance that protects the CSWC 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 the CSWC’s work under this Agreement. The insurance shall include coverage for any damages or injuries arising out of the use of automobiles or other motorized vehicles by the CSWC and its contractor or subcontractors, if any. The insurance shall provide coverage for not less than $500,000 for personal injury to each person, $2,000,000 for each occurrence, and $2,000,000 for each occurrence involving property damage; or a single limit policy of not less than $2,000,000 covering all claims per occurrence.

B. 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.

C. Workers Compensation Insurance. CSWC, its contractors or subcontractors, if any, and all employers on its behalf are subject employers under Oregon Workers Compensation Law for this Agreement and shall comply with ORS Chapter 656 which requires them to provide Oregon workers compensation coverage in accordance with Oregon law for all of their subject workers. CSWC and its contractors and subcontractors shall provide and maintain a certificate of current and effective coverage with the City at all times during the term of this agreement.

A. The foregoing requirements as to the types and limits of insurance coverage to be maintained by CSWC, and any approval of said insurance by the CITY is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by CSWC pursuant to this Agreement, including but not limited to the provisions concerning indemnification.

B. PPR reserves the right to terminate or suspend the Agreement in the event of non-compliance with the insurance requirements of this Article. In no event shall any suspension entitle CSWC to an extension of the term of the Agreement specified in this Article.

* (Note: General liability limits may be increased, at the discretion of the CITY’s Risk Manager, relative to risk involved).

PORTLAND PARK AND RECREATION BUREAU	COLUMBIA SLOUGH WATERSHED COUNCIL:


By: Name:	By: Name:
Title:	Title:
Date:	Date: