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Commercial Lease Agreement for Parking Space This Commercial Lease

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Commercial Lease Agreement for Parking Space This Commercial Lease Powered By Docstoc
					                      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

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                      “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

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                      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.



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     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,

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               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.


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     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

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               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.



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     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: _______________________________




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