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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 1 below is met. C. CITY and OXFORD have entered into a Development and Disposition Agreement (“DDA”), and nothing in this Lease changes any provision(s) of the DDA. D. 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 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 55 monthly permit spaces in the Parking Garage to OXFORD on the following terms and conditions: 2.1 For the first 5 years of this lease, OXFORD shall lease 55 monthly permit spaces from CITY, on the terms and conditions particularly provided in Paragraphs 2 and 3, subject to the remaining provisions of this Lease. Thereafter, OXFORD may reduce the number of monthly permit spaces it leases from CITY, and may instead opt to lease flex spaces, as described in Paragraph 4. OXFORD may opt to lease “reserved spaces” as provided in subsection 2.2 after the initial 5 year term, but the number of such Parking Space Lease Drafted 1-27-06 Page 1 of 8 “reserved spaces” shall not increase above 28 without an amendment to this Lease. This lease shall not permit OXFORD to lease more spaces (combined monthly and flex spaces) than it has guest rooms in its hotel, although after the initial 5 years, it may opt to lease fewer combined monthly and flex spaces than it has guest rooms. 2.2 Twenty-eight of the spaces shall be reserved from the hours of 6 p.m. to 6 a.m. Monday through Thursday and from 6 p.m. Friday until 6 a.m. Monday. The location of such spaces and the method of reservation shall be within the CITY’s discretion. Upon advance written approval of CITY, OXFORD may take steps, at its sole expense, to physically reserve the 28 spaces referred to under this subparagraph on the upper-most floor of the Parking Garage. Such steps may include, with CITY’s advance written approval (which approval shall not be unreasonably withheld), the placement of cones or similar physical objects that reserve spaces, but do not alter the physical structure of the Parking Garage. The Parties anticipate that it may be advantageous to change the methods used by OXFORD to reserve its 28 parking spaces from time to time, and the Parties agree to meet and confer in good faith to identify acceptable methods, which shall be subject to CITY’s final approval, which approval shall not be unreasonably withheld. In the event that the provisions of this Paragraph or any other provision of this Lease exposes CITY to any tax or other liability with respect to the reserved spaces, OXFORD agrees to indemnify, defend and hold CITY harmless from such liability (except claims arising from negligent acts of CITY). In the event that OXFORD fails to indemnify, defend and save CITY harmless hereunder, CITY may terminate this Lease if OXFORD’s failure is not cured within 30 days of the date CITY provides written notice to OXFORD. 2.3 Twenty-seven monthly permit spaces shall be leased 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 Subsection does not entitle OXFORD to any specific parking spaces. Instead, OXFORD will be entitled, under this subsection, to use up to 27 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. 2.4 CITY shall reserve the upper-most floor of the Parking Garage for exclusive use by monthly parking permit holders, including OXFORD (up to the 55 spaces leased to OXFORD under Paragraph 2 during the initial 5 year term), and others to whom CITY sells monthly parking permits. Flex permits issued under Paragraph 4 (if any) 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. CITY agrees to revisit its Parking Space Lease Drafted 1-27-06 Page 2 of 8 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 CITY receives more than five (5) reports in one week from monthly permit holders that inadequate parking spaces were available when needed, 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, CITY shall use reasonable efforts to provide alternative parking in other CITY parking spaces. 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. 2.5 OXFORD shall have the right to request, and the CITY shall provide, enforcement during any hours when the CITY is not already enforcing exclusive permit holder parking; provided, however, OXFORD shall reimburse CITY’s direct costs incurred in connection therewith. Additionally, OXFORD shall have the right to tow vehicles that park in any of its reserved spaces or that park in any reserved spaces without displaying the proper permit(s). Notwithstanding the foregoing, any such towing shall be at OXFORD’s sole cost and expense and OXFORD shall indemnify, defend and hold CITY harmless from any liability arising directly from OXFORD’s towing of any vehicle. In the event that OXFORD fails to indemnify CITY within thirty (30) days of written notice from the CITY, CITY shall have the right to terminate this Agreement without further advance notice. In no event shall OXFORD tow a vehicle if another permit-only space is available for OXFORD’s use. 3. OXFORD will pay CITY the monthly parking fee established by CITY for use by the public (as amended from time to time) for 55 monthly parking spaces leased under Paragraph 2, whether or not OXFORD uses all 55 parking spaces in a given month (subject to the provisions of Paragraph 6). Each monthly payment shall be due in advance. CITY shall provide OXFORD with 55 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. At the expiration of the first 5 years of this lease, OXFORD may reduce the number of monthly spaces it leases under Paragraph 2, and OXFORD shall continue to pay the monthly parking fee established by this Paragraph for the number of monthly permit spaces it elects to continue leasing. The remaining provisions of this lease shall continue to apply to the monthly permit spaces OXFORD continues to lease after the initial 5 year term. Parking Space Lease Drafted 1-27-06 Page 3 of 8 4. Flex Permits. After the initial 5 year term of this lease, OXFORD may elect to lease flex spaces as provided in this Paragraph. In addition to the number of monthly permit spaces OXFORD elects to lease, CITY hereby agrees to allow OXFORD to occupy additional, undesignated spaces payable at one-fifteenth the rate of the monthly parking permit rate to be established by the CITY for use by the public, which rate is expected to change from time to time. The number of flex spaces OXFORD leases shall be determined at the expiration of the initial 5 year term of this Lease, subject to the limitation on the number of flex spaces allowed under Paragraph 7. 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, with the combined number of monthly permit spaces and flex spaces not to exceed the number of guest rooms in the hotel on 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 4 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 (other than the reserved spaces) on a daily basis due to occupancy of the Parking Garage by the public or other permit holders, OXFORD’s remedy is limited to a refund of the daily 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 reasonable satisfaction, that OXFORD was unable to use its full allotment of combined permit spaces and flex 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 the event that OXFORD is unable to use any of its reserved spaces and there are no other permit-only spaces available, Parking Space Lease Drafted 1-27-06 Page 4 of 8 OXFORD shall be entitled, as its sole remedy, to a refund of that month’s parking fee for that space. OXFORD shall bear the obligation to prove, to CITY’s reasonable satisfaction, that OXFORD was unable to use its full allotment of reserved spaces. Satisfactory evidence and required notice shall be as described above. 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. OXFORD has elected to lease all of its allotted permits during the initial 5 year term as monthly permit spaces. Therefore, OXFORD shall not be entitled to any flex permits during the initial 5 year term, without further amendment to this Lease. After the initial 5 year term, OXFORD shall not issue more than ____ flex permits in any given day. (Fifty five guest rooms minus the ____ monthly permits issued under Paragraph 2 = ____ 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. 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 30, 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 provided that 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 sublease 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 sublease under this Paragraph. Parking Space Lease Drafted 1-27-06 Page 5 of 8 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 positing of any sign or use of any other device that purports to designate or reserve any parking space as being for OXFORD’s use, except as provided in Paragraph 2.2. CITY may remove any such noncompliant 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. 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, except as provided in Paragraph 2.5. In the event that OXFORD believes that violations of CITY’s Parking Garage rules are occurring, OXFORD’s sole remedy shall be to notify CITY (or CITY’s enforcement agent), and enforcement shall thereafter be at the discretion of CITY. 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 6. 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 Parking Space Lease Drafted 1-27-06 Page 6 of 8 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 Paragraphs 11 and 2.2, which provide 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. 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: 1550 NE Williamson Blvd. Bend, OR 97701 Attn: Curt Baney 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. Parking Space Lease Drafted 1-27-06 Page 7 of 8 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. CITY OF BEND By: _________________________________ Harold A. Anderson City Manager OXFORD SUITES BEND, LLC, By: ________________________________ Title: _______________________________ Parking Space Lease Drafted 1-27-06 Page 8 of 8
"Commercial Lease Agreement for Parking Space This Commercial Lease "