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Commercial Lease Agreement for Parking Space
This Commercial Lease Agreement for Parking Space ("Lease") is made and
effective _______________________, by and between by the CITY OF BEND, (“CITY”)
and OXFORD SUITES BEND, LLC, an Oregon limited liability company (“OXFORD”).
CITY and OXFORD are referred to jointly in this Agreement as “Parties” and individually as a
“Party.”
RECITALS
A. CITY has duly authorized the Bend Urban Renewal Agency (“BURA”) to administer
the City's urban renewal plan. BURA is owner of the parking garage (currently
under construction), located at ___ Oregon Avenue, Bend, Oregon (the “Parking
Garage”).
B. The Parties anticipate that BURA will transfer the Parking Garage to CITY after
completion of construction. In the meantime, CITY’s parking manager is responsible
for administering all public parking programs in downtown Bend, and the Parties
anticipate that BURA will appoint CITY to manage parking in the Parking Garage,
which appointment will authorize CITY to enter into and administer this lease. This
lease shall be fully effective when executed by the Parties and ratified by BURA, and
when the condition precedent described in Paragraph 12 below is met.
C. CITY and OXFORD have entered into a Development and Disposition Agreement
(“DDA”) which provides, among other things, that CITY will enter into a lease
agreement with OXFORD providing that OXFORD may lease not fewer than 49
parking spaces in the Parking Garage. OXFORD will lease spaces at the City
designated rate in effect (and changed from time to time) during the term of this
lease. In addition to provisions for lease of parking space, the DDA generally
provides terms and conditions for OXFORD’s development of a hotel adjoining the
Parking Garage, and nothing in this Lease changes any provision(s) of the DDA.
D. The DDA provides that OXFORD will pay the CITY parking “in lieu” fee at the
CITY’s standard rate and under the terms of the policies and rules applicable to the
“in lieu” fee in effect when OXFORD obtains its building permit(s). OXFORD will
be required to pay the “in lieu” fee based on the obligation to provide 61 parking
spaces. The number of parking spaces subject to the “in lieu” fee may change if
OXFORD alters its current development plans.
E. City Parking Manager and OXFORD’s representatives shall work in good faith on a
regular cooperative basis to resolve issues that may arise under this Lease including
inadequate parking spaces. The parties agree to be available to each other for
discussions as the need arises.
LEASE TERMS
1. This lease is executed prior to the date on which OXFORD takes title to the
Hotel property. Accordingly, conveyance of title to the Hotel property to
OXFORD shall be a condition precedent to this Lease. If OXFORD does not
Parking Space Lease
Drafted 1-17-06
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take title to the Hotel property prior to the expiration of the DDA, then this
lease shall never take effect.
2. Monthly Permits. CITY hereby leases ___ monthly permit spaces in the
Parking Garage to OXFORD on a non-exclusive basis in common with the
general public (except with respect to the upper-most floor of the Parking
Garage, as described in this Paragraph). This Lease does not entitle OXFORD
to any specific parking spaces. Instead, OXFORD will be entitled to use up to
___ of the spaces in the Parking Garage that are vacant at the time that
OXFORD desires to use them on the same basis as other monthly permit
holders. CITY shall reserve the upper-most floor of the Parking Garage for
exclusive use by monthly parking permit holders, including OXFORD (up to
the ___ spaces leased to OXFORD under this paragraph.), and others to
whom CITY sells monthly parking permits. Flex permits issued under
Paragraph Four shall also be entitled to park on the upper-most floor. Under
the CITY’s current management plan, exclusive use of the upper-most floor of
the Parking garage shall not be enforced between 6:00 p.m. and 6:00 a.m. on
Monday through Saturday and shall not be enforced at all on Sunday. The
City agrees to revisit its management plan from time to time and to take such
steps as are reasonably necessary to provide monthly permit holders,
including OXFORD, with adequate parking. By way of illustration, to the
extent that the City receives more than five (5) reports in one week from
monthly permit holders that inadequate parking spaces were available when
needed, the City shall adopt additional measures to provide adequate spaces,
which may involve or include designating all or part of a second floor for
monthly permit holders only. Such complaints shall exclude complaints
arising out of garage maintenance or inclement weather or other Acts of God.
When spaces are unavailable for OXFORD pursuant to its monthly permits,
the City shall use reasonable efforts to provide alternative parking in other
City parking spaces. The City and OXFORD shall use reasonable efforts to
communicate unusual current or anticipated parking concerns, needs or issues.
The foregoing shall include, without limitation, maintenance to the garage or
special events that may swell parking usage.
3. OXFORD will pay CITY the monthly parking fee established by CITY for
use by the public (as amended from time to time) for ___ monthly parking
spaces leased under Paragraph Two, whether or not OXFORD uses all ___
parking spaces in a given month (subject to the provisions of Paragraph 6).
CITY shall provide OXFORD with ___ monthly permits on the first day of
each calendar month at such place designated by written notice from CITY.
OXFORD shall pay CITY for the monthly space permits at the time of receipt
of such permits.
4. Flex Permits. In addition to the ___ monthly permit spaces leased under
Paragraph Two, CITY hereby agrees to allow OXFORD to occupy up to ___
additional, undesignated spaces payable at one-fifteenth the rate of the
monthly parking permit to be established by the CITY for use by the public,
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which daily rate is expected to change from time to time. OXFORD will pay
CITY for the flex parking spaces used by OXFORD at the end of each month.
The additional ___ flex parking spaces shall be available on a non-exclusive
basis with members of the public. OXFORD shall issue flex permits to its
patrons for use on a particular day, not to exceed ___ permits in any given
day. The permits issued by OXFORD shall be on a form approved by the
CITY, and shall specify the day or days for which the flex permit(s) are valid.
The forms shall be serially numbered. OXFORD patrons shall be directed to
display the permit at all times their vehicle is parked in the Parking Garage.
OXFORD shall keep a copy of each flex permit issued, and shall pay CITY at
the end of each month for the flex permits used in that month.
5. All parking spaces used by OXFORD under Paragraph Four of this lease are
subject to availability, and are made available to OXFORD on a non-exclusive
basis in common with the public. That is, when the Parking Garage is full,
due to usage by the public, OXFORD will have no greater claim to such
spaces than the public in general. OXFORD shall make no claim, monetary or
otherwise, against CITY for any such inability to occupy parking spaces.
6. In the event that OXFORD is unable to use any permit (either monthly permit
or flex permit) due to occupancy of the Parking Garage by the public,
OXFORD’s remedy is limited to a refund of the parking fee. Refunds for
monthly permits shall be on a per diem basis for each parking space that
OXFORD was not able to use due to full occupancy by the public. OXFORD
shall bear the obligation to prove, to CITY’s satisfaction, that OXFORD was
unable to use its full allotment of ___ monthly permit spaces. Satisfactory
evidence shall include written notice to the City Parking Manager or designee
of the date and time of the inadequacy of spaces. If the incident occurs during
normal business hours, such notice shall be given in the same day. If the
incident occurs after business hours or on a weekend, such notice shall be
given on the next business day. Upon furnishing acceptable proof, CITY shall
provide a credit to OXFORD in an amount of money commensurate with the
number of parking space/days OXFORD was unable to occupy the Parking
Garage in the preceding month. OXFORD shall make no other claim against
CITY for any inability to occupy parking spaces because of unavailability due
to occupancy by the public. In no event shall OXFORD make any claim
against CITY or BURA for consequential damages, lost profits, or the like, as
the result of unavailability of parking spaces.
7. The total number of spaces provided to OXFORD under this lease shall not
exceed the total number of guest rooms in OXFORD’s hotel at any given
time. At the commencement of this lease, OXFORD has 55 guest rooms.
Therefore, OXFORD shall not issue more than ____ flex permits in any given
day. (Fifty five guest rooms minus the ____ monthly permits issued under
Paragraph Two = ____ maximum number of flex permits. The number of
permits OXFORD may issue under this lease shall not be changed without
further written agreement by CITY.
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8. The term of this lease is 30 (thirty) years. If OXFORD is not then in default,
OXFORD may renew this lease for two successive 10 year periods.
OXFORD shall exercise its renewal option(s), if at all, by providing CITY
with written notice not more than 90, nor less than 60, days prior to the
expiration of any lease or renewal period. The renewal term shall be at the
rental rate set forth in this lease (i.e., the rate established and changed from
time to time for use of the Parking Garage by the general public), and
otherwise upon the same covenants, conditions and provisions as provided in
this Lease.
9. OXFORD may use the parking spaces only for the parking of vehicles that
comply with the size, height and weight restrictions applicable to use of the
Parking Garage by the general public.
10. OXFORD shall not sublease any parking space, or assign this Lease in whole
or in part without CITY's advance written consent. CITY’s consent shall not
be unreasonably withheld. Consent shall not be withheld if such assignment
occurs in connection with the sale of the hotel and the use of the hotel is not
changed in a manner that would increase the number of parking spaces
required by code (unless OXFORD can show such additional spaces will be
provided elsewhere).
11. OXFORD shall not assign or purport to sub-lease any parking permit(s) under
this lease. Violation of this Paragraph shall be grounds for termination of this
lease on 30 days written notice from CITY. Valet parking by OXFORD
employees for OXFORD hotel guests shall not be considered an assignment
or sub-lease under this paragraph.
12. Maintenance, repair, and other expenses of operating the Parking Garage shall
be the responsibility of CITY, except in any case where damage is caused by
the actions of OXFORD, its employees, guests, agents, officers or assigns
(collectively “OXFORD”); in which case OXFORD shall be responsible for
making the repair or performing the necessary maintenance resulting from
OXFORD’s actions.
13. OXFORD shall have no right to make any alteration to the Parking Garage,
including the posting of any sign or use of any other device that purports to
designate or reserve any parking space as being for OXFORD’s use. CITY
may remove any such sign or device at OXFORD’s expense.
14. CITY shall not be responsible for any loss, including (but not limited to) loss
arising from damage to any vehicle or theft of any property belonging to
OXFORD or its hotel guests.
15. OXFORD shall indemnify, defend and hold CITY harmless from any claim
arising from this Lease, except claims resulting from the negligent acts of
CITY.
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16. OXFORD will comply with the rules of the Parking Garage adopted and
altered by CITY from time to time; all state and federal laws; and all
ordinances of the CITY and will cause all of its agents, employees, invitees
and visitors to do so. Enforcement of the rules of the Parking Garage shall be
within the exclusive discretion of CITY. OXFORD may not cause any
vehicle to be removed from the Parking Garage. In the event that OXFORD
believes that violations of CITY’s Parking Garage rules are being violated,
OXFORD’s sole remedy shall be to notify CITY (or CITY’s enforcement
agent), and enforcement shall thereafter be at the discretion of CITY. As
provided in Paragraph Six, OXFORD’s remedy for not being able to utilize all
of it’s parking permits (both flex permits and monthly permits) shall be
limited to a refund or credit for OXFORD’s cost of the permit during the time
space in the Parking Garage was not available.
17. If the Parking Garage or any part thereof or any appurtenance thereto is so
damaged by fire, casualty or structural defects that the Parking Garage cannot
be used for OXFORD's purposes, then either party shall have the right to
terminate this Lease. In such event, neither party shall have a cause of action
against the other for monetary damages, except as provided in Paragraph
Nine. Notwithstanding the foregoing, in the event that a parking garage is
subsequently constructed in the same location as the destroyed Parking
Garage, OXFORD shall be entitled to lease the same number of spaces in such
garage as it currently leases under this lease on generally the same terms and
conditions.
18. If OXFORD defaults in the payment of rent when due to CITY as herein
provided, and if said default continues for fifteen (15) days after written notice
of default is given to OXFORD by CITY; or if OXFORD defaults with regard
to any of the other covenants or conditions of this Lease, and such default
continues for thirty (30) days after written notice to OXFORD by CITY
without correction, CITY may terminate the Lease by giving OXFORD
written notice of such termination. CITY shall have, in addition to the remedy
above provided, any other right or remedy available to CITY on account of
any OXFORD default, either in law or equity. CITY shall use reasonable
efforts to mitigate its damages. The cure provisions of this Paragraph shall
not apply to a violation of the terms of Paragraph 11, which provides for
termination without an opportunity to cure.)
19. If any legally constituted authority condemns the Building or such part thereof
which shall make the parking Garage unsuitable for leasing, this Lease shall
cease when the public authority takes possession, and CITY and OXFORD
shall account for rental as of that date. Such termination shall be without
prejudice to the rights of either party to recover compensation from the
condemning authority for any loss or damage caused by the condemnation.
Neither party shall have any rights in or to any award made to the other by the
condemning authority.
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20. Any notice required or permitted under this Lease shall be deemed sufficiently
given or served if sent by hand delivery or by United States certified mail,
return receipt requested, addressed as follows:
If to CITY to:
Parking Director
City of Bend
710 NW Wall Street
Bend, OR 97701
If to OXFORD to:
_____________________
_____________________
_____________________
CITY and OXFORD shall each have the right from time to time to change the
place notice is to be given under this paragraph by written notice thereof to the
other party.
21. No waiver of any default of CITY or OXFORD hereunder shall be implied
from any omission to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect any default
other than the default specified in the express waiver and that only for the time
and to the extent therein stated. One or more waivers by CITY or OXFORD
shall not be construed as a waiver of a subsequent breach of the same
covenant, term or condition.
22. The provisions of this Lease shall extend to and be binding upon CITY and
OXFORD and their respective legal representatives, successors and assigns.
23. The Parties shall not unreasonably withhold or delay their consent with
respect to any matter for which a Party's consent is required or desirable under
this Lease.
24. This Agreement may be modified only by a further writing that is duly
executed by both parties.
25. This Agreement shall be governed, construed and interpreted by, through and
under the Laws of the State of Oregon.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
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CITY OF BEND
By: _________________________________
Harold A. Anderson
City Manager
OXFORD SUITES BEND, LLC,
By: ________________________________
Title: _______________________________
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