Parking Site plan

BACK

This Parking Agreement (“Agreement”) is made and entered into on January 10 , 2012 by and between Tulsa Parking Authority, a public trust (“TPA”) and 100 Boulder LLC, an Oklahoma limited liability company, and the 100 Boulder Home Owners Association, an Oklahoma non-profit corporation (both being collectively referred to herein as “100 Boulder”), for the purpose of granting 100 Boulder certain residential parking privileges within the 100 West Parking Garage located at 100 West 1st Street, Tulsa, Oklahoma (the “Parking Facility”), under the terms and conditions set forth in this Agreement.

 

1. SPACES.

(a) Subject to the terms and conditions of this Agreement, TPA grants 100 Boulder a license for use, in common with other licensees, of parking privileges for up to eighteen (18) aggregate residential parkers (collectively the “Initial Parkers” and individually an “Initial Parker”) within the Parking Facility in the nested area identified and depicted in Exhibit “A” appended hereto for the express purpose of parking the motor vehicles of the residents of the residential real estate development contemplated by 100 Boulder within and upon the real estate and premises adjacent to the Parking Facility along Boulder Avenue (the “Project”). The parking privileges for the Initial Parkers shall be designated as “Gold Card” privileges.

 

For purposes hereof, “Residents” of the Project shall mean individuals who own or lease units in the Project.

 

For purposes hereof, “Gold Card” shall mean parking privileges available 24 hours per day, 7 days a week to be available on a first-come, first-serve basis in the nested area within the Parking Facility, as designated on Exhibit “A”.

 

All parking privileges shall be limited to normal passenger vehicles only, including pick-up trucks, passenger vans, and motorcycles, provided such vehicles meet height restrictions of the Parking Facility.

 

(b) In addition to the above, until the expiration or earlier termination of this Agreement, 100 Boulder shall be entitled to increase the number of Initial Parkers from time to time by up to eighteen (18) additional parkers (the “Additional Parkers”) (i.e. the Initial Parkers and the Additional Parkers being thirty-six (36) parkers in the aggregate) subject to availability in the Parking Facility, upon not less than thirty (30) days written notice to TPA, which notice shall include: (i) the number of Additional Parkers which 100 Boulder desires to secure parking privileges for and (ii) the date upon which 100 Boulder desires to secure parking privileges for the Additional Parkers. 100 Boulder shall have the right to select the number of the Additional Parkers on an as needed basis until the aggregate number of thirty-six (36) Parkers is reached, at which time the maximum number of Parkers shall remain at thirty-six (36) until the expiration or earlier termination of this Agreement. Within five (5) days following 100 Boulder’s request to add parking privileges for any Additional Parkers, TPA shall advise 100 Boulder in writing of the availability of space in the Parking Facility for such Additional Parkers. The Initial Parkers and the Additional Parkers are collectively referred to herein as the “Parkers.”

 

(c) 100 Boulder and TPA acknowledge and agree that the intent of this Agreement is to provide parking to Residents of 100 Boulder, and that this Agreement is not intended to benefit any other property, use or party. At no time shall 100 Boulder sell or otherwise make parking privileges in the Parking Facility available to any person in competition with public parking services offered by TPA in the Parking Facility, including but not limited to selling such privileges to any person at a rate higher than the Parking Fee provided in this Agreement.

 

(d) TPA further grants 100 Boulder a license, until the expiration or earlier termination of this Agreement, to install, operate and maintain security cameras at 100 Boulder’s discretion and subject to prior approval of TPA, and solely at 100 Boulder’s expense, upon the exterior walls of the Parking Facility to permit 100 Boulder to monitor the area between the Parking Facility and the Project, including such wiring and transmission equipment as shall be necessary for 100 Boulder to monitor the cameras. Such cameras and associated wiring and transmission facilities may only be mounted to the exterior walls of the Parking Facility between the Parking Facility and the Project, at the location and in the manner agreed upon by the parties, and shall be maintained, repaired, and monitored solely at 100 Boulder’s expense. 100 Boulder agrees that, upon request by TPA, it will immediately provide to TPA any footage or recording made from any cameras installed by 100 Boulder. TPA and 100 Boulder expressly agree that TPA has no obligation, responsibility or duties with respect to installation, operation, maintenance or other requirement with respect to security cameras.

 

2.   TERM; RESTRICTIONS.

(a) The term of this Agreement will begin on the date of the issuance by the City of Tulsa, Oklahoma of a Certificate of Occupancy to 100 Boulder LLC (the “Commencement Date”). On or after the Commencement Date, 100 Boulder may from time to time activate parking privileges for the Initial Parkers of the Parking Facility, as referenced in Section 1(a), above, by providing written notice of each such request to TPA not less than thirty (30) days prior to the desired time of such activation, which notice shall include: (i) the number of parking privileges which 100 Boulder desires to activate and (ii) the date upon which 100 Boulder desires to activate such parking privileges. 100 Boulder shall have the right to activate parking privileges until the number of 18 aggregate Initial Parkers is reached, subject to the provisions of 1(b), above.

 

(b) From time to time after the Commencement Date, 100 Boulder may deactivate parking privileges that have been activated for Parkers in the Parking Facility by providing written notice of each such request to TPA not less than thirty (30) days prior to the desired time of such deactivation, which notice shall include: (i) the number of parking privileges which 100 Boulder desires to deactivate and (ii) the date upon which 100 Boulder desires to deactivate such parking privileges.

 

(c) The term of this Agreement will continue for as long as the Parking Facility is operated as a parking facility and the Project exists and is occupied by Residents. This Agreement will terminate and be of no further force or effect upon any of the following events: 3

 

(i) upon not less than sixty (60) days prior written notice by 100 Boulder to

TPA;

(ii) upon the occurrence of an event of significant or material impact to the Parking Facility, including by way of illustration a catastrophic event, a governmental mandate to close the Parking Facility or a condition resulting in a life safety issue, which, in the reasonable opinion of TPA, requires permanent closure of the Parking Facility;

 

(iii) a determination by the owner of the Parking Facility that it will no longer be operated as a parking facility;

 

(iv) the substantial destruction or removal of the Parking Facility and the decision of the owner thereof not to repair or rebuild such facility; or

 

(v) upon the failure of 100 Boulder to commence construction of the Project by January 1, 2015, or thereafter to diligently proceed to complete such construction (unless extended by mutual agreement of the parties).

 

With respect to subparagraph 2(b)(iv), it is nevertheless the intention of the parties that the license granted hereby would continue in effect if the Parking Facility is damaged or destroyed but the decision is made by the owner of the Parking Facility to repair or rebuild the Parking Facility.

 

3. PARKING FEE.

 

(a) Beginning on the activation of parking privileges pursuant to Paragraph 2(a) for each activated parking privilege 100 Boulder shall pay to TPA in advance on or before the first day of each calendar month during the term of this Agreement, a monthly fee (each, and collectively, the “Parking Fee”) as follows:

(i) In the amount of $125.00 per Initial Parker, per month for up to 18 Initial Parkers.

 

(ii) Then, $62.50 per Parker per month for one additional Parker per Residential unit if so requested by 100 Boulder, but not to exceed a total of 18 Additional Parkers.

 

On each anniversary date of the Commencement Date, the Parking Fee may be subject to an annual adjustment based upon the then existing quoted rates as reasonably established by TPA (the “Annual Fee Adjustment”); provided, however, any Annual Fee Adjustment must be in compliance with applicable bond indentures or other financing documents applicable to the Parking Facility. Such Annual Fee Adjustment shall become effective on the first day of the month following a period of not less than thirty (30) days after written notice to 100 Boulder of any Annual Fee Adjustment. In the event the Commencement Date and/or the expiration of this Agreement occurs other than on the first day of a calendar month, the Parking Fee for such month(s) will be prorated based upon the rate for the Gold Card parking classification and upon

the number of days within such month. The Parking Fee shall be due in advance on the first day of each calendar month.

 

4.  ACCESS CARDS. After the Commencement Date and upon the activation of each individual parking privilege for a Parker, TPA shall issue to 100 Boulder one access card per Parker for entry into the Parking Facility at the cost of twenty-five dollars ($25.00) per card, payable at the time of issue. Lost, damaged or stolen cards shall be replaced by TPA during the term of this Agreement upon payment by 100 Boulder of a fee in the amount of twenty-five dollars ($25.00) per card. Immediately upon deactivation of any parking privilege as described in Section 2(b) herein, or upon termination of this Agreement, 100 Boulder must return to TPA any and all access cards (in reusable condition) issued to 100 Boulder.

 

5.  ARTICLES LEFT IN VEHICLES ARE AT THE VEHICLE OWNER’S RISK/NO SECURITY PROVIDED. 100 Boulder understands and expressly agrees that TPA will not accept any vehicle in bailment or for safekeeping. Except for the gross negligence or willful misconduct of TPA, TPA shall not be responsible for loss or damage to any vehicle or its contents by fire, vandalism, theft, or any other cause, nor for loss, damage, or injury by or to other customers or any other individual personal injury or property damage of any nature. TPA does not assume any obligation to provide for the security of the Parking Facility or to protect individuals, including the Residents, using the Parking Facility, or vehicles or property in the Parking Facility, from criminal activities.

 

6.  DAMAGED PROPERTY. If 100 Boulder or its Residents, employees, guests, or agents damage any personal property in the Parking Facility, or any Parking Facility equipment or any portion of the Parking Facility, TPA shall provide written notice to 100 Boulder of such damage and reasonable evidence that 100 Boulder or its employees, guests or agents caused such damage. Within thirty (30) days following 100 Boulder’s receipt of such notice (except for an emergency which shall require immediate response by 100 Boulder) and the aforementioned reasonable evidence, 100 Boulder shall, at its sole cost and expense, repair such damage. If 100 Boulder fails to repair such damage within such thirty (30) day period, TPA may elect (but shall not be required) to repair such damage, and 100 Boulder shall reimburse TPA for its actual and reasonable costs incurred to repair such damage within ten (10) days following 100 Boulder’s receipt of reasonably detailed invoices therefor.

 

7. DEFAULT. An event of default (“Event of Default”) will be deemed to occur if any of the following events occur: (a) failure of 100 Boulder to pay any Parking Fee, invoice or any other amount due hereunder within ten (10) days following written demand therefor; (b) failure of 100 Boulder to comply with any other material term or condition of this Agreement within ten (10) days of written notice from TPA of such failure or violation; (c) failure of TPA to comply with any other material term or condition of this Agreement within ten (10) days of written notice to TPA from 100 Boulder of such failure or violation. Upon the occurrence of an uncured Event of Default, the non-offending party may, as its sole and exclusive remedies, (i) terminate this Agreement without further notice or demand and without penalty or liability; (ii) pursue an action for damages, including for all amounts due and payable under this Agreement prior to such termination, but in no event for consequential damages; (iii) retain all previously  paid Parking Fees; and (iv) in the alternative or in addition to other remedies available, pursue equitable remedies including specific performance.

 

8.  MAINTENANCE AND REPAIR. TPA shall keep and maintain and make repairs to and perform maintenance upon: (a) structural elements of the Parking Facility; (b) standard mechanical, electrical, plumbing and fire/life safety systems and fire suppressant serving the Parking Facility generally; (c) common areas of the Parking Facility, including landscaping and irrigation systems; (d) elevators serving the Parking Facility, and (e) any security cameras that TPA elects to maintain within the Parking Facility. Subject to Section 6 above, TPA shall make repairs to the Parking Facility in accordance with TPA’s annual renewal and repair report.

 

9.  INSURANCE/CASUALTY. TPA shall maintain or cause to be maintained: (a) commercial general liability insurance applicable to the Parking Facility, and (b) causes of loss-special form (formerly “all risk”) property insurance on the Parking Facility in accordance with applicable bond indentures or other financing documents applicable to the Parking Facility. If all or any part of the Parking Facility is damaged by fire or other casualty, TPA shall repair or restore the Parking Facility pursuant to the requirements of such bond indenture or other financing documents applicable to the Parking Facility.

 

10. RULES. 100 Boulder shall comply at all times, and shall cause its Residents to comply with the Rules and Regulations in the form attached hereto and made a part hereof as Exhibit “B”, as the same may be reasonably amended from time to time by TPA. TPA shall enforce the Rules and Regulations for the Parking Garage in a nondiscriminatory manner.

 

11. RIGHT TO EJECT. TPA reserves the right to eject or cause to be ejected from the Parking Facility any person engaging in conduct that is disruptive, abusive, or offensive to other patrons at or in the Parking Facility, provided that TPA’s actions are in accordance with applicable laws. Neither the TPA nor any of its officers, agents, or employees will be liable to 100 Boulder for any damages that may be sustained by 100 Boulder or any of its Residents through the TPA’s exercise of this right.

 

12. TEMPORARY PARTIAL CLOSURE OF PARKING FACILITY. TPA, upon reasonable notice to 100 Boulder (but in no event shall such notice be less than five (5) business days, except in the case of an emergency), shall have the right to temporarily close certain areas of the Parking Facility (but not the entire Parking Facility except in the event of an emergency, casualty or damage affecting the entire Parking Facility making such closing necessary in the reasonable opinion of TPA) in order to perform necessary repairs and maintenance. When closing the Parking Facility, TPA will seek to avoid any inconveniences to Residents and shall use reasonable efforts to provide 100 Boulder with temporary parking privileges elsewhere in the Parking Facility or in another TPA controlled parking facility in reasonable proximity to the Parking Facility, subject to the availability in such facility sufficient for those Parkers who have parking privileges in the Parking Facility at that time, and according to TPA’s then current rules and regulations governing such parking space availability. No refunds will be given when the Parking Facility is closed for periods of two (2) consecutive business days or less and no refunds will be given to the extent temporary privileges are made available to 100 Boulder during such closure. 6

 

13. TOWING AND IMMOBILIZATION. The parties agree that TPA may, without further notice to 100 Boulder or to 100 Boulder’s residents, have towed or immobilized, at the sole cost and expense to the resident, any vehicle that is parked in the Parking Facility illegally or in violation of posted signs.

 

14. NOTICES. Any notice under this Agreement must be given by certified mail, overnight mail, or by personal delivery. Any such notice will be effective upon receipt. Notice must be sent to the address for the receiving party as designated below, or to such other address as either party may provide the other in accordance with this Section: For TPA:

 

For TPA:

Attn: David Giacomo

175 East 2nd Street, Suite 565

Tulsa, Oklahoma 74103

 

For 100 Boulder LLC:

________________________

________________________

________________________

 

For 100 Boulder Home Owers

with a copy to:

American Parking

410-A South Main Street

Tulsa, OK 74103

Attn: George Shaffer

 

For 100 Boulder Home Owners Association:

________________________

________________________

________________________

 

15. ENTIRETIES. If a court of competent jurisdiction determines that any section, paragraph or other part of this Agreement is void, illegal, or otherwise unenforceable, the remaining provisions of the Agreement will not be rendered void and enforceable as a result but rather will remain in full force and effect.

 

16. ASSIGNMENT AND BINDING EFFECT. 100 Boulder may not assign, sublease, sell, mortgage, pledge, hypothecate, convey or otherwise transfer its interest in this Agreement without first receiving TPA’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

 

17. LIABILITY AND INDEMNIFICATION. 100 Boulder will defend, indemnify and hold harmless TPA and its directors, officers, employees, and agents against any claims, causes of action, liability, or damages, including reasonable attorney’s fees, for bodily injury or death to any person, and damage to property of any person resulting from or caused by the willful misconduct or gross negligence of 100 Boulder or any of its employees, representatives, residents or agents in connection with the use of the Parking Facility.

18. NONWAIVER. TPA’s acceptance of any Parking Fee or failure to complain of any action, non-action, or default of 100 Boulder, whether occurring one time or repeatedly, will not constitute a waiver of any of TPA’s rights or remedies under this Agreement. Likewise, 100 Boulder’s payment of any Parking Fee will not constitute a waiver of any of 100 Boulder’s rights and remedies under the Agreement.

19. BOND INDENTURE. Notwithstanding any other provision of this Agreement, TPA and 100 Boulder agree that their respective rights and obligations under this Agreement shall be subject to, and shall be fulfilled, performed and executed in conformity with, the applicable provisions, definitions, restrictions, terms and conditions of the June, 2012 Bond Indenture. If any provisions of this Agreement conflict or are inconsistent with the Bond Indenture, the provisions of the Bond Indenture shall control and this Agreement shall be amended accordingly. TPA and 100 Boulder further agree that, notwithstanding any other provision of this Agreement, the Parking Facility shall be operated and maintained under this Agreement at all times as a public facility, serving the general public and available on a regular basis for general public use, and that in the operation and maintenance of the Parking Facility nothing shall be done to jeopardize the exemption from Federal income tax of the interest on any notes or bonds issued by TPA in connection with the Parking Facility (not held by a substantial user of the Parking Facility or a related person) under section 103 of the Internal Revenue Code of 1954, as amended, and the applicable regulations promulgated pursuant thereto. Any provision of this Agreement that jeopardizes such tax exemption shall be deemed null and void. TPA and 100 Boulder agree further that in the event this Agreement or any formal or informal agreement, or manner of operations shall jeopardize such tax exemption, 100 Boulder shall modify, adjust or terminate such practice upon notice by TPA.

 

19. BOND INDENTURE. Notwithstanding any other provision of this Agreement, TPA and 100 Boulder agree that their respective rights and obligations under this Agreement shall be subject to, and shall be fulfilled, performed and executed in conformity with, the applicable provisions, definitions, restrictions, terms and conditions of the June, 2012 Bond Indenture. If any provisions of this Agreement conflict or are inconsistent with the Bond Indenture, the provisions of the Bond Indenture shall control and this Agreement shall be amended accordingly. TPA and 100 Boulder further agree that, notwithstanding any other provision of this Agreement, the Parking Facility shall be operated and maintained under this Agreement at all times as a public facility, serving the general public and available on a regular basis for general public use, and that in the operation and maintenance of the Parking Facility nothing shall be done to jeopardize the exemption from Federal income tax of the interest on any notes or bonds issued by TPA in connection with the Parking Facility (not held by a substantial user of the Parking Facility or a related person) under section 103 of the Internal Revenue Code of 1954, as amended, and the applicable regulations promulgated pursuant thereto. Any provision of this Agreement that jeopardizes such tax exemption shall be deemed null and void. TPA and 100 Boulder agree further that in the event this Agreement or any formal or informal agreement, or manner of operations shall jeopardize such tax exemption, 100 Boulder shall modify, adjust or terminate such practice upon notice by TPA.

 

20. ATTORNEYS’ FEES. In the event either TPA or 100 Boulder shall bring any action or proceeding for damages for any alleged breach of any provision of this Agreement, to recover amounts payable under this Agreement, or to enforce, protect or establish any right or remedy of either party, the prevailing party shall be entitled to recover as part of, or incident to, such action or proceeding, all reasonable attorneys’ fees, expert witness fees and other costs and expenses incurred in the preparation and processing of such action or proceedings.

 

21. ENTIRE AGREEMENT/AMENDMENTS. This Agreement constitutes the entire Agreement between the parties and supersedes any and all previous written or oral agreements or representations between the parties. This Agreement may only be amended in writing signed by both parties.

 

22. JURISDICTION/VENUE. This Agreement is made under the laws of the State of Oklahoma, and any disputes that arise under or related to this Agreement will be governed by the laws of Oklahoma, without regard to conflicts of law principles. The parties agree that venue for any legal action involving this Agreement will be in Tulsa County, Oklahoma.

 

23. AUTHORIZATION. Each person executing this Agreement represents and warrants that he or she has full authority to execute this Agreement on behalf of his or her respective party.

 

24. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which when affixed together shall constitute but one and the same instrument. Signatures exchanged by facsimile shall be deemed original signatures for all purposes.

 

     IN WITNESS OF THE ABOVE, the parties have executed this Agreement effective as of the Effective Date.

 

Exhibit “A”

Diagram

Exhibit “B”

 

Rules and Regulations for 100 West Garage

 

1. Parkers must have either a monthly pass (OTA/Pikepass or TPA Sticker) or pull a ticket to enter the garage.

 

2. Monthly parkers must affix their pass to the windshield. If the pass is not affixed to the windshield, it will not work properly. Neither TPA nor American Parking is responsible for malfunction of passes if they are not properly affixed to the windshield. Replacement costs of sticker tags not properly affixed are the sole responsibility of the parker.

 

3. There are no reserved parking spaces in the 100 West Garage.

 

4. The garage has several spaces marked “Compact Only.” These are marked in this manner for safety and visibility reasons. Any parker parking an SUV, Truck, or any car other than a compact will receive a citation that will not be waived. Citations for this infraction are $15.00 if paid before 10 days and $50 thereafter.

 

5. Parkers are not to tamper with the gate arm, access, security, or fire safety systems. Any tampering with any of these systems or devices will result in the parker paying for any and all parts and repairs required to return these systems back to original working order.

 

6. Hours of Access are as follows:

 

    • Express Park:            5:00am-7:00pm, M-F

    • Power Park:              24 Hours, 365 Days a year

    • Gold Card:                24 Hours, 365 Days a year, access to Gold Card Level

    • Express parkers exiting after 7:00pm will be required to pay for time beyond their access level.

 

7. Neither TPA nor American Parking and employees are responsible for any vandalism, theft, or damage to any vehicles parked in the garage at any time.

 

8. Any car parked in handicapped parking must display a State Issued handicapped placard. Failing to display placard will result in a citation.

 

9. Any monthly parker who has not paid their monthly parking bill by the 5th will be deactivated until the balance has been brought current. Any daily parking paid by the parker while the balance is not current will not be applied to any outstanding balances and is the monetary responsibility of the parker.

 

Failure of any access equipment resulting in damage to a vehicle must be reported to the American Parking office immediately and an incident report must be filed.

 

 

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