HomeMy WebLinkAboutContract 31740 CITY SECRETARY 7
CONTRACT NO.
OPTION AGREEMENT TO ENTER INTO
RETAIL LEASE AGREEMENT
This Option Agreement to Enter into Retail Lease Agreement ("Option Agreement") is
entered into effective as of April 27, 2005 between The City of Fort Worth, Texas, a municipal
corporation organized and existing under the laws of the State of Texas ("City"), and Omni Fort
Worth Partnership, L.P., a Delaware limited partnership ("Omni").
WHEREAS, on even date herewith, City and Omni have entered into, among other
instruments, an Economic Development Program Agreement (the "380 Agreement") in which
Omni agreed to build a convention center hotel in Fort Worth(the "Hotel"), together with certain
other improvements, and City agreed to provide certain economic incentives to Omni in
connection with the construction of the Hotel; and
WHEREAS, City intends to build a parking garage (the "Garage") on property directly
north of the Hotel (which property is more particularly described on Exhibit "A" attached
hereto), and to construct approximately 10,000 to 15,000 square feet of retail/restaurant shell
space on the ground floor of the Garage, subject to finalization by the Fort Worth City Council
(the"Retail Space"); and
WHEREAS, City has agreed to grant to Omni an option to lease all or any portion of the
Retail Space upon its completion (the "Option") for an option period terminating two (2) years
after the Hotel opens for business (the "Option Term"), for the purpose of subleasing the Retail
Space to tenants;
NOW, THEREFORE, for and in consideration of the sum of One Hundred Dollars
($100) paid by Omni to City, the parties agree as follows:
1. City hereby grants to Omni the Option to lease all or any portion of the Retail
Space. Omni's exercise of the Option shall be evidenced by a written notice to City that Omni
intends to lease all or a portion of the Retail Space, which notice must be delivered to City no
later than the expiration of the Option Term. The parties agree that the Option may be exercised
for different portions of the Retail Space at different times (i.e., Omni may exercise an Option as
to 3,000 square feet in the first year of the Option Term, and may exercise an Option for all or a
portion of the remainder the following year).
2. If Omni exercises its Option, the City and Omni will reasonably cooperate and
use good faith efforts to enter into a Retail Lease Agreement (the "Lease") for the applicable
portion of the Retail Space in substantially the form attached hereto as Exhibit `B" within one
hundred twenty (120) days after Omni's exercise of the Option for such space. Omni and the
City acknowledge and agree that several of the provisions of the form Lease attached hereto as
Exhibit`B" have not been fully negotiated as of the date hereof. Once the form Lease has been
fully negotiated, Omni and the City may supplement this Option Agreement by replacing
Exhibit "B" with the fully negotiated form Lease. In addition, Omni and the
that if the Option is exercised by Omni, the Lease for any such portion of the1
be negotiated and executed concurrently with the negotiation and execution o OSS �1
OPTION AGREEMENT—Page 1
with the tenant who will ultimately operate in the premises and thus Omni and the City agree that
the terms of the form Lease may change based upon the terms negotiated by Omni and such
tenant, so long as such terms are reasonably acceptable to the City. In any event, if the Option is
exercised, Omni and the City intend to enter into the Lease containing the following terms and
conditions: (a) the amount of rental due thereunder will be equal to the fair market rental rate (to
be determined in accordance with Paragraph 3 below), which will be adjusted at the beginning of
the fourth (4th) lease year and again at the beginning of the seventh (7th) lease year, based on a
CPI escalation; (b) the term of the Lease will be for ten (10) years, with five (5) options to renew
for ten (10) years each; (c) the City will deliver the space in a shell condition, with no
construction allowance payable to Omni; and (d) the Lease will allow Omni to sublet the
premises in its entirety to a subtenant who will ultimately operate in the premises. The City
further agrees to reasonably cooperate with Omni in connection with Omni's negotiation of a
sublease with a proposed subtenant of the Retail Space. In that regard, (i) City agrees to consider
any reasonable revisions to the Lease requested by a potential subtenant of Omni, and will
respond to any such request within ten (10) days of written notice from Omni, (ii) in the event
City determines such request is unreasonable, then Omni may rescind its exercise of the Option
as to the applicable portion of the Retail Space upon written notice to City; (iii) if Omni and the
potential subtenant are not able to agree upon an acceptable sublease, Omni may rescind its
exercise of the Option as to the applicable portion of the Retail Space upon written notice to
City, or in the event the Lease is already executed, Omni will have the right to terminate the
Lease pursuant to the contingency set forth therein; and (iv) in the event a sublease is entered
into, the City agrees that the terms of the sublease will prevail over any conflicting terms in the
Lease, except with respect to indemnity and sovereign immunity provisions which will be more
fully described in the Lease. If Omni rescinds its exercise of the Option for the reasons set forth
in clause (ii) or (iii) above, or if Omni elects to terminate the Lease for the reason set forth in
clause (iii) above, the Option, as it relates to such portion of the Retail Space, will be reinstated
and apply anew for the remainder of the Option Period.
3. On or before the date that is sixty (60) days before substantial completion of the
Garage, City shall deliver to Omni a copy of an appraisal from an appraiser reasonably
acceptable to Omni setting forth the fair market rental rate for the Retail Space. The appraiser
shall determine the fair market rental rate of the Retail Space based on similar shell-condition
space in the general area of the Garage in the Central Business District of Fort Worth. If Omni
does not exercise its Option with regard to any portion of the Retail Space within one (1) year
after Omni's receipt of the appraisal, City may cause the appraiser to reevaluate its appraisal and
make any necessary changes given the lapse of time since its initial appraisal, which would apply
with regard to the portion of the Retail Space that remains subject to the Option.
4. The parties agree that the design of the Garage and the exact size and dimension
of the Retail Space has not yet been finalized by City. City agrees that the final plans and
specifications for the exterior design of the Garage shall be subject to the reasonable approval of
Omni. City shall deliver preliminary plans and specifications for the exterior design of the
Garage to Omni, and Omni shall have forty-five (45) days after receipt of same to deliver any
reasonable comments to City. Omni and the City shall reasonably cooperate and work together
to agree upon the design of the Retail Space and the plans and specifications for same, but in any
event the Retail Space must contain at least 10,000 square feet, with a depth of at least 45 feet
and a height of at least 10 feet. Omni acknowledges that the Retail Space will benls
"shell" condition only, and all "finish-out" shall be at Omni's sole cost and expense.
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CITY SEC"MUF
OPTION AGREEMENT—Page 2T.
M, ENO
5. Notwithstanding anything to the contrary contained herein, Omni shall not
exercise an Option for any portion of the Retail Space which would render the balance of the
Retail Space unleasable in City's commercially reasonable business judgment.
6. Neither party may file this Option Agreement of record. However, within fifteen
(15) days upon written request of either party, the parties hereto agree to execute a memorandum
of option in substantially the form attached hereto as Exhibit "C", and may file such
memorandum of option of record. In addition, upon the termination of this Option Agreement
and within fifteen (15) days upon the written request of either party, the parties hereto agree to
execute a memorandum of termination acknowledging that the option rights set forth in this
Option Agreement have terminated.
7. All notices or requests required or permitted to be given pursuant to this Option
Agreement must be in writing and will be deemed to have been given when received or refused,
if sent by United States registered or certified mail, postage prepaid, or by nationally recognized
overnight courier, and addressed to the applicable party at the address below. Such addresses
may be changed from time to time by either party by serving notice as above provided.
To City: City of Fort Worth
1000 Throckmorton
Fort Worth, TX 76102
Attention: City Manager
With a copy to City of Fort Worth
1000 Throckmorton
Fort Worth,TX 76102
Attention: City Attorney
To Omni: Omni Hotels Corporation
420 Decker Drive
Irving, TX 75062
Attention: President
With a copy to: Omni Hotels Corporation
420 Decker Drive
Irving, TX 75062
Attention: Michael A. Garcia
With a copy to: Omni Hotels Corporation
420 Decker Drive
Irving, TX 75062
Attention: Michael G. Smith
CITY
OPTION AGREEMENT—Page 3 �� I kK,
With a copy to: Winstead Sechrest & Minick P.C.
5400 Renaissance Tower
1201 Elm Street
Dallas, TX 75270
Attention: T. Andrew Dow, Esq.
8. The rights and obligations of Omni pursuant to this Option Agreement may only
be assigned to a party who controls, is controlled by, or is under common control with Omni (an
"Affiliate"). The rights and obligations of Omni hereunder are not otherwise assignable. If
Omni transfers ownership of the Hotel to any party that is not an Affiliate, this Option
Agreement will automatically terminate upon the effective date of such transfer. The rights and
obligations of the City pursuant to this Option Agreement shall inure to the benefit of and be
binding upon the City's successors or assignees in ownership of the property described on
Exhibit"A"hereto.
[Signature Page Follows]
OPTION AGREEMENT—Page 4
CITY: OMNI:
CITY OF FORT WORTH: OMNI FORT WORTH PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Omni Fort Worth GP Corporation,
By; dea Delaware corporation,
Ja Its general partner
Assis t City Manager
Date: April 27, 2005 M �
e• Scott Johnson
APPROVED AS TO FORM AND Title: Vice President
LEGALITY:
Date: April 41, 2005
By: G
Peter Vaky
Assistant City Attorney
M&C: C-20617 3-29-OS
Attested By.
fy-\�
Marty Hendrix
Citv Secretary
OPTION AGREEMENT—Page 5
EXHIBIT "A"
Legal Description
A portion of-
Section
fSection 7, TARRANT COUNTY CONVENTION CENTER, an addition to the
City of Fort Worth, Tarrant County, Texas, according to plat thereof recorded in
Volume 388-59, Page 14, Plat Records of Tarrant County, Texas.
NOTE: The City and Omni agree to amend this Option Agreement to replace this legal
description with a more accurate legal description of the property upon which the Garage will be
located once Omni and the City have mutually agreed upon the location of the Hotel and the
Garage and the property has been replatted.
EXHIBIT"A",Legal Description—Page 1
EXHIBIT "B"
Form Retail Lease Agreement
[The form of Retail Lease Agreement follows this cover page.]
EXHIBIT"B",Form Retail Lease Agreement—Cover Page
RETAIL LEASE AGREEMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
This Lease (herein so called) is executed between THE CITY OF FORT WORTH, TEXAS, a municipal
corporation organized and existing under the laws of the State of Texas ("Landlord"), and OMNI FORT WORTH
PARTNERSHIP,L.P.,a Delaware limited partnership("Tenant").
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby takes from Landlord, the Premises described in this
Lease in Article I.L, in the Building described in Article I.D, for the Term set forth in Article I.R, and on the
following terms,conditions and covenants:
ARTICLE I
FUNDAMENTAL LEASE PROVISIONS; DEFINITIONS
A. Address (Landlord): All rental and other lease payments shall be paid to, and all notices shall be sent to
Landlord, 1000 Throckmorton,Fort Worth,Texas 76102,Attention: City Manager,with a copy of all notices to the
City Attorney at the same address, and to J. Andrew Rogers, Kelly, Hart & Hallman, P.C., 201 Main Street,
Suite 2500,Fort Worth,Texas 76102.
B. Address (Tenant): c/o Omni Hotels Corporation, 420 Decker Drive, Irving, Texas 75062, Attention:
Michael A. Garcia, with a copy of all notices to Michael G. Smith at the same address, and to T. Andrew Dow,
Winstead,Sechrest&Minick P.C.,5400 Renaissance Tower, 1201 Elm Street,Dallas,Texas 75270.
C. "Area of the Retail Portion": The stipulated total number of square feet of rentable area in the Retail
Portion of the Building is
D. "Building": All improvements situated on the Land, as depicted on Exhibit "A", including all parking,
driveway and loading areas and other parts of the Common Area.
EXHIBIT "A" IDENTIFYING THE BUILDING AND THE PREMISES WITHIN THE BUILDING IS
INCLUDED FOR LOCATION PURPOSES ONLY AND IS NOT A REPRESENTATION OR WARRANTY
REGARDING ANY OTHER INFORMATION SHOWN THEREIN.
E. "Commencement Date": 1200_.
F. "Common Area": The areas of the Retail Portion designated by Landlord for the common use of
Landlord and all retail tenants,as depicted on Exhibit"A".
G. "Garage Portion": The Building,excluding the Retail Portion,which is depicted on Exhibit"A".
H. "Land": The parcel of real property more particularly described in Exhibit`B"attached hereto.
I. "Lease Year": A period of twelve (12) consecutive calendar months, beginning on the Commencement
Date; provided, however, if the Commencement Date does not occur on the first day of a calendar month, the first
Lease Year will commence on the Commencement Date and end on twelve(12)full calendar months thereafter.
Retail Lease Agreement—Page 1
J. "Minimum Guaranteed Rental":
Months 1-36 $ per month
Months 37-72 Adjusted per Article II
Months 73-120 Adjusted per Article II
K. "Permitted Use": Retail or restaurant,and for no other purpose.
L. "Premises": The portion of the Retail Portion to be leased pursuant to this Lease, as shown on the
attached Exhibit"A-1",containing approximately square feet of rentable area, which shall be the stipulated
number of square feet of rentable area in the Premises(the"Area of the Premises"). The address of the Premises is
M. "Project": The Building and the Land.
N. "Retail Portion": The portion of the Building depicted on Exhibit "A-2" attached hereto, which is
designated and designed for retail and restaurant use.
O. "Rules": The Rules for the Retail Portion attached as Exhibit "C", as modified in accordance with
Article X.
P. "Tenant's Pro Rata Share": The ratio equal to the Area of the Premises divided by the Area of the Retail
Portion,which ratio Landlord and Tenant agree is
Q. "Tenant's Property": All personal property, furniture, office supplies and equipment, and movable trade
fixtures placed by Tenant in the Premises.
R. "Term": A period beginning on the Commencement Date and expiring one hundred twenty (120) full
calendar months thereafter.
ARTICLE H
RENT
A. Rent. For the purposes of this Lease, "Rent" shall mean all payments due under this Lease for
Minimum Guaranteed Rental and Tenant's Pro Rata Share of Common Area Maintenance Costs, Real Estate Taxes
and Insurance, plus any other payment required to be made by Tenant under this Lease. Tenant shall pay to
Landlord, without demand, offset, abatement or deduction, except as otherwise specifically provided herein,
Minimum Guaranteed Rental for the Premises in monthly installments, in advance. The monthly installments of
Minimum Guaranteed Rental shall be made on the first day of each calendar month during the Term. Tenant's
obligation to pay Rent hereunder will commence upon the earlier of(i) ( _)days after the execution of
this Lease, or (ii) the date Tenant or any sub-tenant or assignee of Tenant's first opens for business (the "Rent
Commencement Date"); provided, however, if the Rent Commencement Date is not on the first day of a calendar
month, then the amount due for such partial calendar month shall be prorated on a per diem basis. On or about the
Rent Commencement Date, Landlord and Tenant shall execute a Memorandum of Rent Commencement Date in the
form of Exhibit"F"attached hereto confirming the Rent Commencement Date.
B. Adjustment to Minimum Guaranteed Rental. The Minimum Guaranteed Rental shall be adjusted
at the beginning of the fourth (4`h) Lease Year and again at the beginning of the(7`h) seventh Lease Year, based on
the change (either positive or negative) in the Consumer Price Index for all Urban Consumers, published by the
Bureau of Labor Statistics of the United States Department of Labor for Dallas-Fort Worth,Texas,All Items(1982-
84=100) (the "Consumer Price Index"), or any successor index thereto as hereinafter provided. If publication of
the Consumer Price Index is discontinued, or if the basis of calculating the Consumer Price Index is materially
changed, then Landlord will substitute for the Consumer Price Index comparable statistics as computed by an
agency of the United States Government or, if none, by a substantial and responsible periodical or publication of
recognized authority most closely approximating the result which would have been achieved by the Consumer Price
Retail Lease Agreement—Page 2
Index. The adjustment will be determined by multiplying the dollar amount to be adjusted by a fraction, the
numerator of which is the level of the Consumer Price Index for the current calendar year (i.e., the calendar year
preceding the adjustment year) (the "Current Index Number"), and the denominator of which is the level of the
Consumer Price Index for the calendar year in which the effective date of this Lease occurs (the "Base Number
Index"). For example,assuming the Base Index Number equals 177.7,and the Current Index Number equals 201.0,
the Rentals for the fourth (4`�) through sixth (6`h) Lease Years would increase in accordance with the Consumer
Price Index to$ ($ x [201.0/177.7]_$ ).
C. Late Payments. If any Rent payment is not paid when due, then in addition to the past due
amount, Tenant shall pay to Landlord interest on such Rent payment at the prime rate of interest being charged by
Chase Bank-Fort Worth (the "Interest Rate"), such interest to accrue continuously from the date when such
payment is due until the date on which Tenant makes full payment of such amount.
ARTICLE III
DELIVERY OF PREMISES
TENANT HAS INSPECTED THE PREMISES AND ACCEPTS THE PREMISES BASED ON THAT
INSPECTION. THE PREMISES ARE DELIVERED TO TENANT AND ARE BEING LEASED "AS IS" AND
"WITH ALL FAULTS." LANDLORD MAKES NO WARRANTY, EXPRESS, IMPLIED, OR ARISING BY
OPERATION OF LAW, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, LANDLORD HEREBY
DISCLAIMS, AND TENANT WAIVES THE BENEFIT OF, ANY AND ALL IMPLIED WARRANTIES,
INCLUDING IMPLIED WARRANTIES OF FITNESS OR SUITABILITY FOR PURPOSE, OR THAT THE
PREMISES HAS BEEN CONSTRUCTED IN A GOOD AND WORKMANLIKE MANNER. TENANT
ACKNOWLEDGES THE PREMISES HAS BEEN DELIVERED TO TENANT IN "SHELL SPACE"
CONDITION,AND THAT TENANT SHALL BE REQUIRED TO PERFORM OR CAUSE TO BE PERFORMED
CERTAIN "FINISH-OUT" WORK BEFORE THE PREMISES WILL MEET THE CONDITIONS NECESSARY
FOR ISSUANCE OF A CERTIFICATE OF OCCUPANCY.
ARTICLE IV
COMMON AREA
A. Common Area. Landlord may, from time to time, in its sole discretion, change the size, location,
nature and/or use of any part of the Common Area so long as such change to the Common Area does not materially
impair or restrict access to or visibility of the Premises or otherwise adversely impact the Premises or Tenant's use
thereof. Tenant and its employees and customers have the non-exclusive right to use the Common Area in common
with Landlord and other occupants of the Retail Portion permitted by Landlord to use the Common Area. No
solicitation,by Tenant or other persons, is permitted in the Common Area without Landlord's prior written consent,
which may be withheld in its sole discretion. Landlord shall maintain and repair the Common Area in good
condition,including making any necessary replacements.
B. Common Area Maintenance Costs. Tenant shall pay as part of the Rent under Article II of this
Lease Tenant's Pro Rata Share of the cost incurred by Landlord to repair, operate and maintain the Common Area,
utility expenses attributable to the Common Area, and depreciation of maintenance equipment used solely for the
Common Area (collectively, the "Common Area Maintenance Costs"). Within thirty (30) days prior to the
beginning of each Lease Year,Landlord shall deliver to Tenant an estimate of the Common Area Maintenance Costs
for the immediately succeeding Lease Year. Tenant shall pay Tenant's Pro Rata Share of Common Area
Maintenance Costs in advance in monthly installments, based upon Landlord's estimate of the Common Area
Maintenance Costs for the applicable Lease Year.
Within ninety (90) days after the end of each Lease Year, Landlord shall furnish to Tenant a statement of
the actual Common Area Maintenance Costs for the previous Lease Year. Upon request, Tenant will be granted the
opportunity to review all invoices and records relating to such Common Area Maintenance costs for that particular
Lease Year in Landlord's office during normal business hours. Tenant shall be entitled to one suc
Lease Year in the Term. Tenant shall pay to Landlord, or Landlord shall refund to Tenant, as a rt5pfrM-te, witl&" 01 C
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Retail Lease Agreement-Page 3 'Cliff
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thirty (30) days of the delivery of the statement, an amount, if any, equal to the product of(a) Tenant's Pro Rata
Share,and(b)the difference between the estimated Common Area Maintenance Costs and the actual Common Area
Maintenance Costs for the previous Lease Year. Tenant's reimbursement obligation under this Article IV shall be
prorated if the first or last Lease Year of the Term is less than a full calendar year. If a law, ordinance or regulation
is adopted requiring installation in the Common Area of any environmental protection or other equipment related to
the use of the Retail Portion as a retail business facility, then Tenant shall pay Tenant's Pro Rata Share of the cost,
maintenance and operating expense of that equipment, unless the required change relates solely to another tenant's
or occupant's use of its premises. Likewise, if the required change relates solely to Tenant's use of the Premises,
then Tenant shall bear the entire expense associated with such required change.
Notwithstanding anything to the contrary set forth herein, the term "Common Area Maintenance Costs"
shall not include: (a)costs and expenses of a capital nature,including but not limited to,original or new construction
or installation or any capital investments or improvements or payments for rented equipment (the cost of which
would constitute a capital expenditure if such equipment had been purchased); (b) any profit, overhead or
management fees, or any cost or expense for labor, materials or services that are not directly employed or used in
maintaining the Common Area; (c) any expense for which Landlord is reimbursed by other parties (including,
without limitation, expenses paid by other tenants, proceeds of insurance coverage or condemnation awards or
covered by warranties, guarantees or service contracts); (d)any taxes or insurance premiums on areas of the Project
other than the Common Area; (e) any repairs to the Common Area necessitated by any construction within the
Project (unless requested by Tenant, in which event the cost will be solely borne by Tenant); (f) any expenses
incurred as a result of Landlord's negligence or breach of its obligations under this Lease; (g) any taxes on the
Common Area if the Premises is not separately assessed and Tenant pays a pro rata share of the taxes on the Project
pursuant to Article VI hereof; (h) costs due to casualty damage(whether insured or not); (i)amortization, interest or
other payments or charges on loans to Landlord, whether such loans are secured by a deed of trust, mortgage or
otherwise on the Project; 6) legal, auditing, consulting and professional fees; (k)alterations attributable solely to
tenants of the Retail Portion; (1) wages, costs and salaries associated with employees of Landlord; (m) the cost of
correcting latent defects or defects in base construction for the Common Area,including(without limitation)costs of
repairs, replacements, alterations or improvements necessary to make the Project comply with applicable past,
present or future laws; (n) any cost representing an amount paid to any entity related to Landlord which is in excess
of the amount which would have been paid in the absence of such relationship; (o)costs of repairs, replacements or
other work occasioned by the exercise by governmental authorities of the right of eminent domain or easement
rights affecting the Common Area; (p) penalties and interest for late payments; (q) the costs of any disputes; (r)the
initial cost of tools and equipment used in the construction, maintenance or operation of the Project; and(s) costs of
constructing additions to the Project or new improvements on the Common Area, or otherwise further developing,
renovating or enhancing the original grade and quality of the Common Area.
C. Patio. Landlord grants to Tenant the right to use the sidewalk area (the "Patio") located
directly outside of,and immediately adjacent to and in front of,the Premises solely for use as outdoor seating
for the Tenant's customers; provided that at least (_) feet in width of the sidewalk must remain
available at all times for pedestrian access. Notwithstanding anything to the contrary set forth herein, the
square footage of the Patio shall not be included in determining the square footage of the Premises for the
purposes of the calculation of Rent or Tenant's Pro Rata Share. Tenant's use of the Patio is limited to an
outdoor seating area in connection with Tenant's restaurant operations, which Patio may not be enclosed in
any way and must be operated in accordance with applicable governmental laws and regulations. Tenant has
the sole responsibility of providing tables and chairs to be used in the Patio. Tenant shall have the non-
exclusive use of the Patio, which use shall not interfere with pedestrian access in, or use of, the Project.
Landlord reserves the right of ingress and egress over, through, and upon the Patio. The Patio shall not be
covered and Tenant shall not install any permanent improvements thereon. All of the terms of this Lease
relating to the Premises are applicable to the Patio,and,without limitation to the foregoing,Tenant agrees to:
(i)keep the Patio clean and free from rubbish, trash and garbage; (ii)comply with all governmental
requirements applicable to the Patio and Tenant's use thereof; and (iii)obtain Landlord's prior written
approval of the size, location and configuration of such seating and any other items ancillary thereto to be
utilized by Tenant on the Patio. The use of the Patio by Tenant must be in compliance with the Permitted Use
as well as all applicable laws and requirements. Tenant must obtain, at its sole cost and expense, any
necessary permits or governmental approvals required for the operation of its business within the Patio.
Landlord makes no representation or warranty that Tenant shall be able to use the Patio as an outdoor
Retail Lease Agreement—Page 4
seating area under applicable law and Tenant shall not be entitled to a reduction in Rent or any other charges
if Tenant can not utilize the Patio as a result of applicable law or for any other reason.]
ARTICLE V
USE AND CARE OF PREMISES
The Premises shall be used and occupied only for the purpose specified in Article I.K, and not otherwise.
Tenant shall keep the Premises in good repair. All property kept, stored or maintained within the Premises by
Tenant shall be at Tenant's sole risk Tenant may not use the Premises for any illegal purpose. Tenant shall not take
any action that would constitute a nuisance or would be reasonably offensive to or disturb or endanger Landlord or
other tenants of the Retail Portion or unreasonably interfere with their use of their respective premises, nor use,
occupy or permit any portion of the Premises to be occupied or used for any unlawful business or purpose. Tenant
shall, at its expense: (a) timely procure any necessary permits and licenses and comply with all applicable laws,
ordinances, and regulations, relating to the use, condition and occupancy of the Premises and Tenant's business
within the Premises; and (b) promptly comply with all governmental orders and directives for the correction,
prevention and abatement of nuisances connected with the Premises.
ARTICLE VI
TENANT'S TAX OBLIGATION
Landlord shall pay all ad valorem taxes and other assessments (collectively, the "Real Estate Taxes"),
levied or assessed against all or part of the Project. Landlord shall use commercially reasonable efforts to obtain a
separate tax parcel for the Retail Portion. If the Retail Portion is separately assessed,Tenant shall pay as part of the
Rent under Article II of this Lease Tenant's Pro Rata Share of Real Estate Taxes in the same manner that Tenant
pays its share of Common Area Maintenance Costs pursuant to Article IV. If the Retail Portion is not separately
assessed, Landlord and Tenant shall agree upon a fair and equitable allocation of Real Estate Taxes based on the
property within the Project being assessed and Landlord agrees that the allocation of Real Estate Taxes among
Tenant and the other tenants or occupants of the Retail Portion shall be made in a non-discriminatory manner.
Tenant shall pay for all taxes levied or assessed against Tenant's Property directly to the taxing authority. If any
taxes for which Tenant is liable are not separately assessed and are levied or assessed against Landlord, then Tenant
shall pay to Landlord upon written notice and at least thirty(30)days prior to the date due to the taxing authority the
part of those taxes for which Tenant is liable. If a sales or similar tax is imposed on the rents payable under this
Lease,Tenant is solely responsible for the payment thereof to the full extent permitted by law.
ARTICLE VII
REPAIRS AND MAINTENANCE
A. Repairs and Maintenance by Landlord. Landlord shall keep the foundation, roofs and exterior
walls(excluding plate glass,windows,doors and door hardware and similar areas)of the Building in good condition
and shall make any necessary repairs and replacements to same at Landlord's sole cost and expense, except to the
extent caused by Tenant or Tenant's agents, employees, contractors, subcontractors, subtenants and licensees. If
Landlord does not make repairs or replacements to the Premises required under this Article VII,Tenant may deliver
written notice to Landlord informing Landlord that Tenant intends to take any necessary curative action on behalf of
Landlord. Landlord will have thirty (30) days after receipt of such notice to notify Tenant in writing if Landlord
disputes whether a failure has occurred,in which event Landlord shall promptly submit the dispute to arbitration. If,
after such thirty (30) day period, the repair or maintenance obligation has not been cured and Landlord has not
delivered written notice to Tenant disputing whether the failure has occurred, Tenant may, at its option, make such
repair or replacement and Landlord shall reimburse Tenant the cost reasonably incurred by Tenant (including the
costs associated with complying with competitive bidding procedures and obtaining any payment and performance
bonds if required by this Article VII.A) within thirty (30) days after request for same accompanied by invoices
therefor. Notwithstanding anything to the contrary set forth herein, if the repair or replacement is not capable of
being cured within thirty (30) days after Landlord's receipt of such notice from Tenant, but Landlord has
commenced all necessary curative action within the thirty (30) day period and is diligently pursuing same to
Retail Lease Agreement—Page 5
completion, then Tenant will not be entitled to exercise the self-help right set forth in this Article VII.A. If Tenant
exercises its self-help right under this Article VII.A and the cost to make any such repair or maintenance exceeds or
is anticipated to exceed$25,000,Tenant must competitively bid the work to be performed and must obtain payment
and performance bonds if same would be required pursuant to §2253.021 of the Texas Government Code and
§252.021 of the Texas Local Government Code if Landlord were performing the work. Notwithstanding anything to
the contrary set forth herein, if Landlord's failure to make any repairs or replacements poses an immediate risk to
persons or property in the Premises,Tenant shall be entitled to exercise its self-help right set forth herein without the
need to first go through the notice and cure requirements of this Article VILA, but Tenant shall deliver to Landlord
reasonable notice considering the circumstances of any such work commenced or completed by Tenant in
accordance with this Article VII.A.
B. Repairs and Maintenance by Tenant. Tenant shall be solely responsible for all maintenance and
repairs of the Premises and Tenant's improvements thereto and fixtures and equipment therein that are not the
responsibility of Landlord pursuant to Article VII.A above (including, without limitation, electrical, HVAC and
plumbing and extermination of the Premises). Except as otherwise provided herein, Tenant shall have the
responsibility and obligation to, at its own expense, obtain routine janitorial service for the Premises, keep the
Premises in good condition and repair, and shall repair or replace to the reasonable satisfaction of Landlord,
damages to the Retail Portion, or any part thereof, caused by Tenant or Tenant's agents, licensees, subtenants,
subcontractors,contractors,employees, invitees,or visitors. If Tenant fails to make required repairs or replacements
within thirty (30) days after written notice from Landlord, then Landlord may, at its option, make such repairs or
replacements,and Tenant shall reimburse Landlord the cost reasonably incurred by Landlord within thirty(30) days
after request for same accompanied by invoices therefor. Notwithstanding anything to the contrary set forth herein,
if the repair or replacement is not capable of being cured within thirty(30)days after Tenant's receipt of such notice
from Landlord, but Tenant has commenced all necessary curative action within the thirty (30) day period and is
diligently pursuing same to completion, then Landlord will not be entitled to exercise the self-help right set forth in
this Article VII.B. Tenant shall not commit or allow any waste to be committed on any portion of the Premises,and
shall,at the termination of this Lease deliver up the Premises to Landlord in as good condition as at the beginning of
the Term,ordinary wear and tear excepted.
ARTICLE VIII
ALTERATIONS,ADDITIONS AND IMPROVEMENTS
Except for Tenant's Work set forth on Exhibit "D", Tenant shall not make any alterations, additions or
improvements to the Premises (collectively, "Alterations") (including those requiring roof penetrations, which
Landlord shall have the right to designate, in Landlord's sole discretion, the contractor performing such
penetrations) to the Premises (including the Building front and exterior) without Landlord's prior written consent,
which may be withheld in Landlord's sole discretion; provided, however, that Tenant may make any Alterations to
the interior of the Premises without Landlord's consent if such Alterations do not affect the mechanical, electrical,
plumbing, HVAC, structural and/or fire and life safety components of the Building. All Alterations in or to the
Premises shall become the property of Landlord on the expiration or termination of this Lease; provided, however,
that the Tenant's Property shall remain the property of Tenant and may be removed by Tenant upon the expiration or
termination of this Lease in accordance with Article XXII.K. Tenant shall use commercially reasonable efforts to
prevent a mechanic's or materialman's lien from being asserted against the Premises. If a lien is filed against the
Premises or any interest of Landlord or Tenant in the Building, then Tenant shall contest the lien or cause it to be
discharged of record within thirty (30) days after receipt of notice of its filing, failing which Landlord may(but is
not obligated to) discharge the lien by any appropriate means. Amounts paid by Landlord to obtain the discharge
shall be paid by Tenant to Landlord on demand,together with interest on those amounts at the prime rate of interest
being charged by Chase Bank-Fort Worth(the"Interest Rate"),from the date of Landlord's payment to the date of
repayment to Landlord. If at any time during the Term,Tenant makes any Alterations to the Premises,the terms and
conditions set forth in the Exhibit"D" Work Letter attached to this Lease will apply to such alterations, additions,
improvements, repairs or other work, including, without limitation, the insurance requirements for contractors and
subcontractors set forth therein. In addition,if Tenant makes any Alterations to the Premises and such Alterations, if
they were being performed by Landlord,would require the competitive bidding process under§252.021 of the Texas
Local Government Code or payment and performance bonds under §2253.021 of the Texas ,
Tenant shall cause such work to be competitively bid and shall obtain an required a ent an
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Retail Lease Agreement—Page 6 � �,� � �s
ARTICLE IX
LANDLORD'S RIGHT OF ENTRY
Landlord may, after giving reasonable notice to Tenant (except in cases of emergency, when prior notice
shall not be required,but Landlord shall promptly provide notice to Tenant after the entry), enter the Premises(a) to
inspect their general condition and state of repair, (b) to make repairs required or permitted under this Lease, or(c)
to show the Premises to any prospective tenant during the last six (6) months of the Term or to any prospective
purchaser or mortgagee. Any entry by Landlord permitted under this Article IX shall not be deemed an eviction or
disturbance of Tenant's possession of the Premises,shall not constitute a breach by Landlord of this Lease,and shall
not entitle Tenant to any damages.
ARTICLE X
RULES OF BUILDING; SIGNS
Tenant shall comply fully with the Rules of the Retail Portion (the initial Rules are attached as
Exhibit"C"), which Landlord may amend by giving at least thirty (30) days advance written notice to Tenant,
provided, however, that Landlord shall not amend the Rules in a manner that would materially increase Tenant's
obligations or decrease Tenant's rights hereunder. Tenant shall be permitted to install signage on the exterior of the
Premises identifying the business of the occupant of the Premises, so long as the sign complies with all applicable
governmental laws. Tenant shall not otherwise paint, place, install or affix any signs or other objects on or to the
roof,outside entrances,or exterior walls of the Premises without the prior written consent of Landlord.
ARTICLE XI
UTILITIES
Landlord shall cause to be provided and maintained the facilities located outside the perimeter walls of the
Premises necessary to supply water, electricity, gas, telephone service, and sewage service to the Premises. Tenant
shall contract directly with all utility providers for service to the Premises and shall pay directly to the utility
company for such services.
Tenant shall permit Landlord to erect,use,maintain and repair pipes,cables,conduits,plumbing, vents and
wires in, to, and through the Premises as often and to the extent that Landlord may now or hereafter reasonably
consider necessary or appropriate for the proper operation and maintenance of the Building,so long as such facilities
and Landlord's entry onto the Premises do not unreasonably interfere with Tenant's use of or operations within the
Premises. Landlord is not liable for any interruption whatsoever in utility services, including interruptions effected
in order to make alterations, repairs or improvements. However, if the interruption is caused by Landlord, Tenant
shall be entitled to an equitable abatement of Rent until such utility is restored.
ARTICLE XII
PROPERTY INSURANCE;CASUALTY DAMAGE
A. Landlord's Property Insurance. Landlord shall maintain special form "all risk" including flood,
wind storm and earthquake coverage insurance on the Building (the "Property Insurance") for its own benefit,
subject to the following provisions of this paragraph. [OPEN—SUBJECT TO REVIEW BY CITY'S RISK
MANAGEMENT]
B. Tenant's Property Insurance. Tenant shall maintain(or cause to be maintained by any assignee or
subtenant) an insurance policy or polices of"risks of direct physical loss" in a"special form"basis (or comparable
coverage by whatever name denominated) in an amount equal to 90% of the full replacement cost of all fin-niture,
trade fixtures,equipment,merchandise,and all other items of Tenant's Property in,on,at,or about the Premises.
C. Casualty Damage. Landlord shall repair any damage or destruction to the B I"
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Retail Lease Agreement-Page 7 4 •,-4g 4 n
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(but not to Tenant's Property) caused by any peril covered or which should have been covered by the Property
Insurance. Tenant shall pay as part of the Rent under Article II of the Lease Tenant's Pro Rata Share of the
insurance premiums for the Property Insurance in the same manner that it pays its share of Common Area
Maintenance Costs pursuant to Article IV. Notwithstanding anything contained to the contrary in this Article XII, if
the Retail Portion or the Premises is damaged or destroyed by a fire or other casualty (a) to the extent that, in
Landlord's reasonable judgment, the Retail Portion or the Premises cannot practicably be rebuilt to its pre-existing
condition within one hundred eighty(180)days of the occurrence of the destruction or damage,or(b)during the last
twelve(12) months of the Term, then either party may terminate this Lease within ninety(90)days from the date of
damage or destruction, by delivering written notice to Tenant, in which case neither party shall have any further
obligations hereunder one to the other except those expressly surviving the termination of this Lease. If any
Subtenant(as defined in Article XIV)has the right to terminate its sublease by reason of casualty, then Tenant may
terminate this Lease upon written notice to Landlord.
D. Waiver of Claims, Waiver of Subroization. Each of Landlord and Tenant waives any and every
claim in its favor against the other during the Term for any and all loss of,or damage to,any of its property located
within or on, or constituting a part of, the Premises, to the extent the loss or damage is covered or would have been
covered if Landlord or Tenant had obtained the required policies hereunder, by valid and collectible special form
insurance policies and waive any right of subrogation which might otherwise exist in or accrue to any person on
account thereof. These mutual waivers are in addition to,and not in limitation or derogation of, any other waiver or
release contained in this Lease with respect to any loss of, or damage to, property of Tenant. Each party shall
immediately give to each insurance company which has issued to it policies of property insurance, written notice of
the terms of the waiver,and shall cause those insurance policies to be properly endorsed, if necessary, to prevent the
invalidation of insurance coverages by reason of the waiver. Landlord and Tenant further agree that all property
insurance carried by each covering losses arising out of destruction or damage to the Premises or its contents or to
other portions of the Project shall provide for a waiver of rights of subrogation against the other party, on the part of
the insurance carrier.
ARTICLE XIII
INDEMNITY AND LIABILITY INSURANCE
A. Tenant's Waiver and Indemnity. Landlord is not liable to Tenant or Tenant's employees or
invitees, or to any other person whomsoever, and Tenant waives all claims against Landlord for any injury to or
death of any person or damage to property occurring on or about the Premises, from any cause whatsoever,
including the action or inaction of Tenant, its employees or invitees, but specifically excluding anything caused by
the willful misconduct or gross negligence of Landlord or Landlord's agents. Tenant shall indemnify, defend
(through attorneys reasonably acceptable to Landlord), and hold harmless Landlord from and against any claims,
damages, or liabilities arising from injury to or death of any person or loss or damage to property occurring on or
about the Premises or arising out of any acts or omissions of Tenant or Tenant's employees, directors, officers,
contractors, subcontractors, subtenants, agents, visitors, invitees, and licensees of Tenant with respect to the
Premises. Tenant's liability under this paragraph is not limited to the amount of the insurance coverages set forth
below. The provisions of this paragraph survive the termination of the Lease.
B. Landlord's Waiver. Tenant is not liable to Landlord or Landlord's employees or invitees,or to any
other person whomsoever,and Landlord waives all claims against Tenant for any injury to or death of any person or
damage to property occurring on or about the Common Area or the Garage Portion, from any cause whatsoever,
including the action or inaction of Landlord,its employees or invitees,but specifically excluding anything caused by
the willful misconduct or gross negligence of Tenant or Tenant's agents. The provisions of this paragraph survive
the termination of the Lease.
C. Landlord's Liability Insurance. Landlord must maintain a policy or policies of commercial general
liability insurance on an occurrence basis covering the Project(but excluding the Premises), insuring against claims
for personal or bodily injury or death or property damage (including contractual indemnity and liability coverage
without contractual exclusion) occurring upon, in or about the Project (but excluding the Premises), affording
protection to the limit of not less than $10,000,000 per occurrence for bodily injury and property damage,
$10,000,000 per occurrence for personal or advertising injury, $10,000,000 for general or aggregate liability, and
Retail Lease Agreement—Page 8
such other coverage as Landlord may reasonably deem appropriate. Landlord's insurance will contain an
endorsement that Landlord's insurance is primary for claims arising out of an incident or event occurring within the
Common Area. [OPEN—SUBJECT TO REVIEW BY CITY'S RISK MANAGEMENT]
D. Tenant's Liability Insurance. Tenant covenants that it shall maintain(or cause to be maintained by
any assignee or subtenant) in effect at all times during the full Term of this Lease, insurance coverages with limits
not less than those set forth below with insurers licensed to do business in the State of Texas and reasonably
acceptable to Landlord and under forms of policies reasonably satisfactory to Landlord. Tenant shall maintain (or
cause to be maintained by any assignee or subtenant) such insurance coverages at its sole cost and expense.
Landlord shall be under no obligation to maintain any such insurance coverage should Tenant be found to be in
default under this Article XIII. None of the requirements contained herein as to types, limits or Landlord's approval
of insurance coverage to be maintained by Tenant are intended to and none shall in any manner limit, qualify or
quantify the liabilities and obligations assumed by Tenant under this Lease or otherwise provided by law.
1. Schedule of Insurance Coverages.
COVERAGE MINIMUM AMOUNTS AND LIMITS
(a) Workers' Compensation.
Workers' Compensation Statutory Limits
Employers' Liability,or alternative $100,000
work-place injury or
non-subscription plan as may be
permitted under applicable law
This policy shall include a waiver of subrogation in favor of the Indemnitees.
(b) Commercial General Liability.
Bodily Injury/Property Damage $1,000,000 each occurrence
(Occurrence Basis) or equivalent;subject to a
$2,000,000 aggregate
Such commercial general liability policy shall be on an occurrence form acceptable to Landlord, endorsed
to include Landlord, Landlord's officers, directors, affiliates, employees, agents and council members (collectively,
the"Indemnitees") as additional insureds,contain cross-liability and severability of interest endorsements, state that
this insurance is primary insurance as regards any other insurance carried by any Indemnitee, and shall include the
following coverages:
(1) Premises/Operations;
(2) Independent Contractors;
(3) Broad Form Contractual Liability specifically in support of, but not
limited to,the Indemnification section of this Lease;and
(4) Personal Injury Liability with the employee and contractual exclusions
removed.
(c) Comprehensive Automobile Liability.
Bodily Injury/Property Damage $1,000,000 combined single limit
of liability
This policy shall be on a standard form written to cover all owned,hired and non-owned automobiles.
(d) Umbrella Excess Liability Insurance.
Retail Lease Agreement–Page 9
Bodily Injury/Property Damage $10,000,000 per occurrence
(Occurrence Basis) $10,000,000 aggregate
This policy shall be written on a following form umbrella excess basis above the coverages described in
clauses (a), (b), and (c) of Article XIII.B above and shall be endorsed to include the Indemnitees as additional
insureds.
E. Evidence of Insurance. Evidence of the insurance coverage required under Articles XII and XIII,
represented by Certificates of Insurance issued by the insurance carrier, must be furnished to Tenant and Landlord
on the effective date of this Lease. Certificates of Insurance shall specify the additional insured status required
above as well as the waivers of subrogation. Such Certificates of Insurance shall state that Landlord or Tenant, as
the case may be, will be notified in writing thirty(30) days prior to cancellation, material change or non-renewal of
insurance. Each party shall provide to the other a certified copy of any and all applicable insurance policies required
hereunder upon written request of the other party. Timely renewal certificates will be provided to Tenant and
Landlord as the coverage renews. In no event shall Tenant handle any materials in the Premises which would void
or reduce the insurance coverage of Tenant required under this Lease.
F. Insurance Requirements for Tenant's Contractors and Subcontractors.
1. General Requirements. Subject to Landlord's right to waive such requirements for a
contractor or subcontractor at Landlord's sole discretion, insurance similar to that required of Tenant with limits
reasonably acceptable to Landlord shall be provided by or on behalf of all contractors and their subcontractors to
cover their operations performed for Tenant. The Commercial General Liability policy outlined in
Article XIII.D.1(b) will be extended to include Completed Operations coverage for any contractor doing
construction work on the Leased Premises. Tenant shall consult with Landlord with respect to such matters to
determine if Landlord desires to waive such requirements for a contractor or subcontractor. Tenant shall maintain
Certificates of Insurance from all contractors and their subcontractors enumerating, among other things, the waivers
in favor of,and insured status of,Landlord and the other Indemnitees as required herein, and Tenant shall provide to
Landlord a copy of each Certificate of Insurance from each contractor and subcontractor if requested by Landlord.
2. Subcontractors. The term"subcontractor(s)"for the purposes of this Lease shall include
subcontractors,consultants,or sub-operators of any tier.
G. Right to Enforce. In the event of failure by Tenant or Landlord to observe its respective
covenants, conditions and agreements contained in this Article XIII, Landlord or Tenant, as the case may be, may
take any action at law or in equity to collect amounts then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement or covenant of the other party under this Article XIII.
The provisions of this Article XIII shall be cumulative with and in addition to any other agreement by Tenant to
indemnify Landlord. In the event that Tenant or Landlord shall fail to maintain its respective insurance coverage
required by this Lease and such failure continues for thirty(30)days after such party's receipt of written notice from
the other party,the other party may(but shall be under no obligation to) take out the required policies of insurance,
pay the required premiums or otherwise comply with the covenants set forth in this Article XIII. All amounts
advanced by Landlord or Tenant, as the case may be, in payment of the required premiums for such insurance or
otherwise to comply with the other party's covenants set forth in this Article XIII shall be paid by the non-
performing party,together with interest thereon at the Interest Rate.
ARTICLE XIV
ASSIGNMENT,TRANSFER,AND SUBLEASING BY TENANT
A. Prohibition on Transfers. Except as otherwise provided in this Lease,Tenant shall not assign or in
any manner transfer this Lease or interest therein, or sublet the Premises or any part thereof, or grant any license,
concession or other right of occupancy of any portion of the Premises,or mortgage, pledge, or othe
its interest in this Lease or in the Premises, without the prior written consent of Landlord which Lant., l (��t�;�: W�
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Retail Lease Agreement—Page 10 p�
unreasonably withhold, delay or condition. In determining whether or not to grant its consent, Landlord may take
into consideration a number of factors, including, without limitation: Landlord's desired tenant mix and the general
compatibility of the proposed transferee with the Retail Portion, the reputation and net worth of the proposed
transferee, and the proposed transferee's ability to satisfy all terms and conditions of this Lease. Consent by
Landlord to one or more assignments or sublettings or other arrangements shall not operate as a waiver of
Landlord's rights with respect to any subsequent assignments, sublettings, grants, or mortgages. All assignments
and sublettings shall be subject to the terms of this Lease, including the use limitations stated in Article I.K. Any
assignment by Tenant must be in writing and state that Tenant and the assignee are jointly and severally liable for
Tenant's obligations under the Lease.
B. Permitted Subtenants. Landlord acknowledges that Tenant intends to sublet the Premises to a
subtenant who will ultimately operate in the Premises. Any party to whom Tenant sublets the Premises pursuant to
this Article XIV.B is referred to herein as a "Subtenant". Before entering into a sublease with a Subtenant, Tenant
will deliver written notice to Landlord requesting Landlord's written approval of the proposed Subtenant in
accordance with Article XfV.A. Within ten(10)days after Landlord's receipt of such notice,Landlord must deliver
written notice to Tenant either approving or disapproving the proposed Subtenant, and if Landlord disapproves,
Landlord must state the specific reasons for withholding Landlord's approval. If Landlord fails to timely deliver
such notice, the proposed Subtenant will be deemed to be approved by Landlord. Since the sublease may become a
direct lease between Landlord and the Subtenant pursuant to this Article XfV.B, Landlord shall have the right to
approve the material terms of the sublease, which approval shall not be unreasonably withheld, conditioned or
delayed. The sublease will provide that in the event of any conflict between the terms of the sublease and the terms
of this Lease,the terms of the sublease will prevail(except,however, if the sublease becomes a direct lease between
Landlord and the Subtenant pursuant to Article XIV.E below, the terms of this Lease relating to Landlord's
indemnity obligations and any requirements regarding the Texas Government Code and Texas Local Government
Code will prevail). Tenant shall provide Landlord with a copy of any sublease agreement entered into with a
Subtenant. If a non-disturbance agreement is requested by a Subtenant, Landlord agrees to use commercially
reasonable efforts to enter into such an agreement with the Subtenant upon terms reasonably acceptable to Landlord.
Notwithstanding anything to the contrary contained herein, in the event Tenant sells the Hotel or in the event the
ground lease for the land under the Hotel between Landlord and Tenant is assigned by Tenant or is terminated,then
any sublease with a Subtenant shall automatically become a direct lease between Landlord and Subtenant, and
Tenant shall have no further rights or obligations under this Lease.
C. Affiliate Transfers. Notwithstanding anything to the contrary set forth herein, Tenant may assign
or sublet this Lease without Landlord's consent to any party controlling, under common control with, or controlled
by Tenant,so long as Tenant delivers written notice of such assignment or sublease to Landlord.
D. Tenant's Liability. Except as expressly set forth in Article XIV.B above,Tenant shall remain fully
liable for the payment of the Rent herein specified and for compliance with all of Tenant's other obligations under
this Lease after any assignment, subletting or other transfer of this Lease. If Landlord's consent is required under
this Article XIV, any assignment or subletting by Tenant without Landlord's prior written consent is an Event of
Default under Article XVI of this Lease.
ARTICLE XV
HOLDING OVER
Without limiting Landlord's other rights and remedies, if Tenant holds over after the expiration or
termination of this Lease, then Tenant shall be a month-to-month tenant, subject to all the terms and conditions of
this Lease, and shall pay as monthly rent during each month of the holdover period an amount equal to 125%of the
amount of monthly rent due for the last month of the Term. No holding over by Tenant, either with or without the
consent or acquiescence of Landlord, shall extend the Term for a period longer than one month unless that Term is
extended in a writing executed by Landlord. If Landlord gives Tenant prior written notice that Landlord has
executed a lease for another tenant to lease the Premises after the Term hereof and Tenant holds over after the
expiration or termination of this Lease,then Tenant will be liable to Landlord for any damages incurred by Landlord
in connection with any claim asserted by such other tenant.
Retail Lease Agreement—Page 11
ARTICLE XVI
DEFAULT BY TENANT; LANDLORD'S REMEDIES
A. Event of Default. The following events (each an "Event of Default") constitute defaults by
Tenant under this Lease:
1. Failure of Tenant to pay when due any installment of Rent and the continuation of that
failure for a period of ten(10)days after Tenant's receipt of written notice from Landlord that same is past due.
2. Failure of Tenant to comply with any other term,condition or covenant of this Lease, and
the continuation of that failure for a period of thirty(30)days after Tenant's receipt of written notice from Landlord;
provided, however, if such failure is not capable of being cured within such thirty (30) day period, an Event of
Default will not be deemed to occur if Tenant,within such thirty(30)day period, institutes good faith efforts to cure
such failure and diligently prosecutes same to completion.
3. Insolvency of,or the making of a transfer in fraud of creditors or a general assignment for
the benefit of creditors by Tenant, or Tenant's filing of a petition in bankruptcy or any proceeding by a
governmental authority for the dissolution of Tenant.
4. A receiver, trustee or liquidator is appointed of Tenant or for all or substantially all of the
assets of Tenant or of Tenant's obligations under this Lease and is not discharged within ninety (90) days after
appointment.
5. Assignment of Tenant's interest in this Lease in violation of Article XIV hereof.
B. Landlord's Remedies. On the occurrence of an Event of Default,Landlord may pursue any one or
more of the following remedies without any notice or demand whatsoever,except as otherwise indicated:
1. Terminate this Lease by giving written notice of termination to Tenant, in which event
Tenant shall immediately surrender the Premises to Landlord. If Tenant fails to so surrender the Premises, then
Landlord may, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or
other damages, re-enter and take possession of the Premises and expel or remove Tenant and any other person
occupying the Premises or any part thereof,without being liable for any damages,whether caused by the negligence
of Landlord or otherwise.
2. Landlord may re-enter and take possession of the Premises without terminating this Lease
and without being liable for any damages, except if caused by the willful misconduct or gross negligence of
Landlord, and relet the Premises and apply the rent received to the account of Tenant. No reletting by Landlord is
considered to be for its own account unless Landlord has notified Tenant in writing that this Lease has been
terminated. Landlord may relet the Premises to any tenant, for any term on whatever terms Landlord, in its sole
discretion,deems advisable. Landlord's action under this subsection(2)is not considered an acceptance of Tenant's
surrender of the Premises unless Landlord so notifies Tenant in writing.
3. Re-enter the Premises without terminating this Lease and without being liable for any
damages, except if caused by the willful misconduct or gross negligence of Landlord, and do whatever Tenant is
obligated to do under the terms of this Lease. Tenant shall pay to Landlord, on demand, the expenses incurred by
Landlord in effecting compliance with Tenant's obligations under this Lease, plus interest thereon at the Interest
Rate from the date expended until repaid.
4. Alter the locks or security devices within the Premises. No alteration of security devices
and no removal or exercise of dominion by Landlord over Tenant's or any other person's property at the Premises
will be deemed unauthorized or constitute a conversion, and Tenant consents to Landlord's exercise of dominion
over property within the Premises after an Event of Default. Tenant waives all claims for damages caused by such
entry,exercise of dominion,or alteration of locks or other security devices.
Retail Lease Agreement—Page 12 " �c �.1�,,�•
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C. On an Event of Default by Tenant with respect to which Landlord elects to either terminate this
Lease or terminate Tenant's possession of the Premises without terminating this Lease (and without limiting
Tenant's obligations provided elsewhere in this Lease, including under Article XVI.D,below)until Landlord relets
the Premises, Tenant shall pay to Landlord, by the fust day of each calendar month, the amounts owed by Tenant
under this Lease. After the Premises have been relet by Landlord,Tenant shall pay to Landlord on the 20th day of
each calendar month, the difference between the amount owed by Tenant under this Lease and the amount actually
collected by Landlord for that month. If Landlord brings suit to collect a deficiency, Landlord may allow the
deficiency to accumulate and may bring an action on several or all of the accrued deficiencies at one time. No suit
shall prejudice Landlord's right to bring a similar action for any deficiency or deficiencies that arise later. Any
amount collected by Landlord for any calendar month from subsequent tenants which exceeds the amounts owed by
Tenant shall be credited to reduce Tenant's liability in a calendar month for which the amount collected by Landlord
is less than the amount owed by Tenant,as Tenant's sole right to that excess.
D. In all events, Tenant is liable for all damages of whatever kind or nature, direct or indirect,
suffered by Landlord as a result of the occurrence of an Event of Default. If Tenant fails to promptly pay Landlord
for the damages suffered, Landlord may pursue a monetary recovery from Tenant. Included among those damages
are all expenses incurred by Landlord in repossessing the Premises (including increased insurance premiums
resulting from Tenant's vacancy), all expenses incurred by Landlord in reletting the Premises (including those
incurred for advertisements and brokerage fees and needed repairs and replacements, but not for remodeling or
providing any tenant improvement allowance), all losses incurred by Landlord as a result of Tenant's default and all
reasonable attorney's fees incurred by Landlord in enforcing any of Landlord's rights or remedies against Tenant.
Notwithstanding the foregoing, however, Landlord shall use good faith efforts to mitigate its damages arising from
any Event of Default.
E. Pursuit of any of the foregoing remedies does not constitute an irrevocable election of remedies
nor preclude pursuit of any other remedy provided elsewhere in this Lease or by applicable law, and none is
exclusive of another unless so provided in this Lease or by applicable law. Likewise, forbearance by Landlord to
enforce one or more of the remedies available to it on an Event of Default does not constitute a waiver of that
default or of the right to exercise that remedy later or of any rent, damages, or other amounts due to Landlord
hereunder.
ARTICLE XVII
DEFAULT BY LANDLORD; TENANT'S REMEDIES
An event of default by Landlord shall occur if Landlord fails to perform any of its obligations under this
Lease and such failure to perform shall continue for a thirty (30) day period after written notice from Tenant to
Landlord; provided, however, if such failure is not capable of being cured within such thirty (30) day period,
Landlord will not be deemed to be in default if Landlord, within such thirty (30) day period, institutes good faith
efforts to cure such failure and diligently prosecutes same to completion. If such event of default by Landlord shall
occur, then Tenant shall have all rights and remedies available at law or in equity. In addition, if Landlord has not
delivered written notice to Tenant within thirty (30) days after receipt of such notice from Tenant stating that
Landlord disputes the default, then Tenant may, at its option and in addition to any other remedies available to
Tenant, take such steps as may be necessary to cure Landlord's breach or default, in which event Tenant shall be
entitled to recover from Landlord or offset against subsequent payments of Minimum Guaranteed Rental all
expenses reasonably incurred by Tenant (including the costs associated with complying with competitive bidding
procedures and obtaining any payment and performance bonds if required by this Article XVII) for such purposes,
including interest at the Interest Rate. If Tenant exercises its self-help right under this Article XVII and in
connection with such cure it is necessary to hire a contractor to perform any work the cost of which exceeds or is
anticipated to exceed $25,000, Tenant must competitively bid the work to be performed and must obtain payment
and performance bonds if same would be required pursuant to §2253.021 of the Texas Government Code and
§252.021 of the Texas Local Government Code if Landlord were performing the work.
NU
Retail Lease Agreement—Page 13v���l c �K ?��
R 'W"OHN, TEN,
ARTICLE XVIII
ESTOPPEL CERTIFICATES
Within twenty (20) days after receipt of written request therefor by the other party hereto, Landlord or
Tenant, as the case may be, shall execute and deliver to the requesting party (and to such other person as the
requesting party may designate) a statement reasonably satisfactory to the requesting party certifying any facts that
this Lease is unmodified and is in full force and effect(or if there have been modifications, stating that this Lease is
in full force and effect as modified), that the requesting party is not in default hereunder(or stating the nature of any
alleged default),that there are no defenses or offsets to this Lease claimed by the other party, and further certifying
any matters reasonably requested by the requesting party. Notwithstanding anything to the contrary set forth in this
Article XVIII,neither party will be required to execute such an estoppel certificate more often than two(2) times in
any twelve(12)-month period.
ARTICLE XIX
NO IMPLIED WAIVER
The failure by either party hereto to insist on the strict performance of any covenant or agreement, or its
failure to exercise any option, right or remedy contained in this Lease, shall not be construed as a future waiver or a
relinquishment thereof. A party hereto shall be considered to have waived a provision of this Lease only if
specifically expressed in a writing signed by such party and only for the time and in the manner specifically stated.
Landlord's receipt of rent with knowledge of the breach of a covenant or agreement contained in this Lease shall not
be deemed a waiver of the breach. No acceptance by Landlord of a lesser amount than the installment of rent due
shall be considered, nor shall any endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction. Landlord may accept a check or payment without prejudice
to Landlord's right to recover the balance of the rent due or to pursue any other remedy provided in this Lease.
ARTICLE XX
NOTICES
Any notices or other communications required or desired to be given to the other party hereto shall be
given in writing and delivered by courier,overnight delivery service,facsimile transaction or through the U.S.postal
service,postage prepaid and by certified mail,return receipt requested,at the applicable address set forth in Article I
hereof. The parties hereto may from time to time change their respective addresses by giving at least fifteen (15)
days'written notice to the other party,delivered in compliance with this Article XX.
ARTICLE XXI
FORCE MAJEURE
Whenever a period of time is herein prescribed for action to be taken by Landlord or Tenant(other than the
payment of Rent by Tenant),Landlord or Tenant,as applicable,shall not be liable or responsible for,and there shall
be excluded from the computation of any such period of time,any delays due to strikes, riots,acts of God,shortages
of labor or materials,war,governmental laws,regulations,or restrictions or any other causes of any kind whatsoever
which are beyond the reasonable control of such party.
ARTICLE XXII
MISCELLANEOUS
A. Brokers. Tenant and Landlord each represent and warrant to the other that it has had no dealings
with any broker or agent in connection with the negotiation or execution of this Lease.
Retail Lease Agreement—Page 14 ���� � /taut
B. Severability. If any provision of this Lease is finally held by a court of competent jurisdiction to
be invalid or unenforceable, then the invalid or unenforceable provision shall be deemed severed from this Lease
and the validity and enforceability of the remaining provisions of this Lease shall be unaffected.
C. Quiet Enjoyment. Landlord hereby covenants and agrees that, so long as an Event of Default has
not occurred and is continuing,Tenant shall, subject to the terms of this Lease,at all times during the continuance of
this Lease have the peaceable and quiet enjoyment and possession of the Premises, without disturbance, hindrance,
or ejectment as a result of any act or inaction on the part of Landlord or any persons claiming through Landlord.
D. No Recording. Neither party may record this Lease,or a memorandum thereof, without obtaining
the other party's prior written consent.
E. Construction. The parties acknowledge that each party and its counsel have reviewed and revised
(or had the opportunity to review)this Lease, and the parties hereby agree that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of
this Lease or any exhibits hereto.
F. Charges. Landlord and Tenant agree that each provision contained in this Lease for determining
any charge or payment is commercially reasonable and,as to each such charge or amount, such provision contains a
"method by which the charge is to be computed" for purposes of§93.012 of the Texas Property Code, as such
section now exists or as same may be hereafter amended or succeeded.
G. ENTIRE AGREEMENT. THIS LEASE EMBODIES THE ENTIRE AGREEMENT BETWEEN
THE PARTIES AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS RELATING TO
THE SUBJECT MATTER HEREOF. LANDLORD HAS NOT MADE, AND TENANT MAY NOT RELY ON,
ANY REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE BUILDING, PREMISES, OR
OTHERWISE, EXPRESSED OR IMPLIED, EXCEPT AS STATED IN THIS LEASE. IN PARTICULAR,
LANDLORD HAS NOT AUTHORIZED ANY AGENT OR BROKER TO MAKE A REPRESENTATION OR
WARRANTY INCONSISTENT WITH THE TERMS OF THIS LEASE AND TENANT MAY NOT RELY ON
ANY SUCH INCONSISTENT REPRESENTATION OR WARRANTY. THIS LEASE MAY NOT BE
CHANGED OR TERMINATED ORALLY, BUT ONLY IN WRITING EXECUTED BY BOTH PARTIES
HERETO.
H. Exhibits. The following drawings and documents are attached to this Lease and are a part of this
Lease:
Addendum to Retail Lease Agreement
Exhibit"A"- Site Plan of Building
Exhibit"A-1"- Location of Premises
Exhibit"A-2"- Retail Portion
Exhibit`B"- Legal Description of Land
Exhibit"C"- Rules and Regulations
Exhibit"D"- Work Letter
Exhibit"E"- Base Interior Building Standards
Exhibit"F" - Memorandum of Rent Commencement Date
I. Renewal Qption. At the end of the Term of the Lease,provided that there is no Event of Default
and there is no event or condition which with notice or the lapse of time or both would give rise to an Event of
Default,Tenant is hereby granted an option to renew the Lease for five(5)additional ten(10)year periods upon the
same terms and conditions contained in the Lease with the following exceptions:
(a) The fifth renewal term shall contain no further renewal options unless granted by
Landlord in writing; and
(b) Minimum Guaranteed Rental for each renewal term shall be at the prevailing fair market
rental rates for similar retail space in the vicinity of the Building in the Central Business District in Fort Worth,
Texas, with adjustments in the fourth and seventh Lease Years of each renewal option term as set out in Article II of
Retail Lease Agreement—Page 15
the Lease.
If Tenant desires to exercise a renewal option, Tenant shall notify Landlord of its intention to renew no
later than nine(9)months prior to the expiration of the current Term of this Lease or Tenant shall lose the option to
renew the Lease. Upon receipt of Tenant's notice of renewal, Landlord shall promptly obtain an appraisal from an
appraiser reasonably acceptable to Tenant which shall establish the Minimum Guaranteed Rental during the renewal
term in accordance with clause (b) above Upon Tenant's receipt of the appraisal, Tenant shall have the right to
rescind its decision to renew the Lease for a period of fifteen (15) days (provided if Tenant fails to give written
notice to Landlord of its decision to rescind within such 15-day period,Tenant will be deemed to have agreed to the
rate set forth in the appraisal).
K. Surrender of Premises. Upon expiration or earlier termination of this Lease, either by lapse of
time or otherwise, Tenant shall peaceably surrender to Landlord the Premises, including all Alterations thereto, in
broom-clean condition and in good repair, ordinary wear and tear and damage by fire or other casualty excepted.
Tenant shall have the right to remove Tenant's trade fixtures upon any such expiration or termination and shall repair
all damage to the Premises caused or revealed by such removal.
Retail Lease Agreement—Page 16 v
Ell
THIS LEASE is executed by Landlord and Tenant this day of ,200_.
LANDLORD:
CITY OF FORT WORTH
By:
Joe Paniagua
Assistant City Manager
Date:
APPROVED AS TO FORM AND LEGALITY:
By:
Peter Vaky
Assistant City Attorney
M&C:
TENANT:
OMNI FORT WORTH PARTNERSHIP,L.P.,
a Delaware limited partnership
By: Omni Fort Worth GP Corporation,
a Delaware corporation,
Its general partner
By:
Name:
Title:
Date:
Retail Lease Agreement—Page 17
EXHIBIT"A"
SITE PLAN OF BUILDING
"JAIL MWD
EXHIBIT"A"—Site Plan of Building—Cover Page
TEX
,�
�� .
EXHIBIT"A-1"
LOCATION OF PREMISES
EXHIBIT"A-1"—Location of Premises—Cover Page
EXHIBIT"A-2"
RETAIL PORTION
EXHIBIT"A-2"—Retail Portion—Cover Page
EXHIBIT KB"
LEGAL DESCRIPTION OF LAND
EXHIBIT"B"—Legal Description of Land—Page 1 , , qn
EXHIBIT"C"
RULES AND REGULATIONS
To the extent of any conflict between these Rules and Regulations(as same may be amended pursuant to
Article X of the Lease)and the terms of the Lease,the terms of the Lease shall prevail.
1. Tenant's use and occupancy of the Premises shall at all times comply with all applicable federal,
state, and local laws,codes, ordinances,rules, and regulations. Tenant, its agents, servants and employees shall not
block or obstruct any of the entries,passages,doors,hallways or stairways of the Building,or place,empty or throw
any rubbish, litter, trash or material of any nature into such areas,or permit such areas to be used at any time except
for ingress and egress of Tenant, its agents,servants,employees,visitors or invitees.
2. For the general welfare of the Building, including without limitation,to protect the beneficial flow
of pedestrian and vehicular traffic through the Common Area, the movement of furniture, equipment, merchandise
or materials within, into or out of the Premises shall be restricted to time, method and routing of movement as
determined by Landlord upon request from Tenant, and Tenant assumes all liability and risk in that movement.
Safes and other heavy equipment shall be moved into the Premises only with Landlord's written consent and shall
be placed where directed by Landlord. Any damage done to the Building by taking in or removing any Tenant
property, equipment and furniture, or from overloading any floor in any way, shall be paid by the Tenant upon
demand by the Landlord.
3. No sign, advertisement or notice shall be displayed, painted or affixed by Tenant, its agents,
servants or employees in or on any part of the outside or inside of the Building or the Premises without prior written
consent of Landlord, and then only of such color, size, character, style and material and in such places as are
approved and designated by Landlord; provided, however, that no prior written consent of Landlord shall be
necessary if the sign advertisement or notice is not visible outside the Premises. All signs submitted for Landlord's
prior written approval shall conform to any sign requirements or restrictions for the Building.
4. Landlord is not responsible for lost or stolen personal property, equipment, money or any article
taken from the Premises or the Building.
5. Tenant shall keep the Premises in a clean and tidy condition at all times and shall keep in an
orderly manner all racks, shelves and other devices used for display and sale of merchandise. Tenant shall take care
to present at all times merchandise that is fresh in appearance and neatly and safely displayed.
6. Tenant, its agents, servants and employees shall not install or operate any refrigerating, heating or
air conditioning apparatus or carry on any mechanical operation or bring into the Premises or the Building any
flammable fluids or explosives without the prior written permission of Landlord, provided, however, that Landlord
consents to Tenants installation and operation of household microwave and refrigerator, and medical equipment and
gases.
7. Except as set forth in any construction plans approved by Landlord, or otherwise approved in
writing by Landlord, no awnings or other projections may be attached to the exterior surface of the walls enclosing
the Premises. No curtains,blinds or screens may be attached to or hung,or used in connection with any window or
door of the Premises without the prior written approval of Landlord as to the quality,type,design,color and manner
of attaching the same. No protective screen,grating, shade or other enclosing device may be used on the portion of
the Premises abutting the Common Area, courts or public corridors without Landlord's prior written approval as to
the quality, type, design, color and manner of attaching the same to the end that all storefronts facing the said
Common Area will be compatible, in Landlord's reasonable judgment, in appearance. Tenant shall regularly clean,
repair and, if necessary in Landlord's judgment, replace any awnings used in connection with the Premises so that
such awnings always convey the image of a first-class establishment.
8. Tenant, its agents, servants or employees shall not bring into the Building or the Premises or keep
on the Premises any dog, bird or animal, except a seeing eye dogs or other animal necessary for the assistance of a
disabled person.
EXHIBIT"C"—Rules and Regulations—Pagel
9. No additional locks shall be placed on any door in or providing access to the Premises unless
Landlord is given a key to the lock at the time that it is installed. A reasonable number of keys to the Premises will
be furnished by Landlord and neither Tenant,its agents, servants or employees shall have any duplicate keys made.
Landlord may at all times keep a pass key to the Premises. All keys shall be returned to Landlord promptly upon
termination of this Lease.
10. Tenant shall give Landlord prompt notice of all accidents to or defects in air conditioning
equipment,plumbing,electrical facilities or any part or appurtenance of the Premises.
11. Landlord will not permit entrance to Tenant's offices by use of pass keys controlled by Landlord
to any person at any time without permission by Tenant,except employees,contractors,or service personnel directly
supervised by Landlord.
12. Tenant shall not suffer, permit, order or allow deliveries to be made except pursuant to the
following conditions:
(i) deliveries shall be made only between the hours of 7:00 a.m.and 9:00 p.m.
(ii) all deliveries shall be made to such locations as are designated or approved by Landlord
from time to time;
(iii) Landlord shall not be responsible for watching or safekeeping any items delivered to
Tenant;and
(iv) Tenant shall keep in good order, condition and repair, and prevent any damage to any
loading platform,truck dock and/or truck maneuvering space when used by Tenant or for
Tenant's deliveries,even if that area is not within the Premises.
13. There shall not be used in any space,or in the public halls of the Building in which the Premises
are located, if any, either by any Tenant or others, any hand trucks except those equipped with rubber tires and side
guards. No other vehicles of any kind shall be brought by any Tenant into the Building or kept in or about its
Premises without Landlord's prior consent, except wheel chairs, vehicles to assist the mobility impaired, and other
pedestrian vehicles typically allowed in similar structures. Tenant shall pay for any damages caused to the Common
Area by Tenant's use of those vehicles.
14. Tenant shall not use the sidewalk adjacent to or any other space outside the Premises for display,
sale or any other similar purpose or otherwise block those areas in any way.
15. Tenant shall not use the exterior walls of the Premises for any purpose except that permitted by the
Lease. Landlord reserves the right to build additional stories,levels or buildings above the Premises,none of which
shall be deemed to be part of the Premises. Neither Tenant nor its employees, invitees, licensees, contractors, or
subcontractors shall be allowed access to the roof without Landlord's prior consent.
16. Tenant shall, at Tenant's expense, maintain the Premises in a clean, orderly and sanitary condition
free of insects, vermin, rodents and other pests. Tenant shall adhere to trash pick-up procedures established from
time to time by Landlord. During normal working hours,all refuse,trash,garbage and containers or types approved
by Landlord for the same will be so placed in the Premises as not to be visible from the exterior of the Premises or
from the interior areas of the Premises normally used by the public. Boxes will be flattened by Tenant before being
put in Building trash containers. No material shall be placed in the trash boxes or receptacles if the material is of a
nature that it may not be disposed of in the ordinary and customary manner of removing and disposing of trash and
garbage without being in violation of any law or ordinance governing such disposal. All garbage and refuse disposal
shall be made only through entryways and elevators provided for such purposes and at such times as Landlord
designates.
17. Landlord, in its commercially reasonable judgment,may waive any one or more of those Rules for
the benefit of any particular tenant or tenants, but such waiver by Landlord shall not be construed as a waiver of
such Rules in favor of any other tenant or tenants, or prevent Landlord from thereafter enforcing all Rules against
EXHIBIT"C"—Rules and Regulations—Page 2
any or all of the Tenants of the Building.
18. Landlord may amend these Rules and make other and further reasonable rules as in its sole
judgment are from time to time necessary and desirable,provided that in the event of a conflict with the terms of the
Lease,the Lease shall control.
19. These Rules are for Landlord's benefit,and are in addition to,and shall not be construed to in any
way modify, alter or amend, in whole or in part, the terms, covenants, agreements and conditions of any lease of
Premises in the Building.
EXHIBIT"C"—Rules and Regulations—Page 3
EXHIBIT"D"
WORK LETTER
[TO BE NEGOTIATED]
EXHIBIT"M—Work Letter—Page 1 _ _
EXHIBIT"E"
BASE INTERIOR BUILDING STANDARDS
MINIMUM CONSTRUCTION SPECIFICATIONS
[TO BE NEGOTIATED]
EXHIBIT"E"—Base Interior Building Standards Minimum Construction Specifications—Page 1
EXHIBIT"F"
MEMORANDUM OF RENT COMMENCEMENT DATE
This MEMORANDUM OF RENT COMMENCEMENT DATE ("Memorandum") is entered into on
, 200_, between the CITY OF FORT WORTH,TEXAS ("Landlord"), and OMNI FORT WORTH
PARTNERSHIP,L.P.,a Delaware limited partnership("Tenant").
RECITALS
A. Landlord and Tenant entered into that certain Retail Lease Agreement dated ,
200_ (the"Lease"), relating to the premises described on Exhibit "A" attached hereto. All terms used but not
defined herein have the meanings set forth in the Lease.
B. Landlord and Tenant wish to confirm certain matters relating to the Lease.
AGREEMENT
1. Commencement Date. Landlord and Tenant certify that the Commencement Date under the Lease
is , 200_and the primary Lease Term is scheduled to expire on ,2_. Landlord
and Tenant certify that the Rent Commencement Date under the Lease is ,200 .
2. Entire Agreement;No Amendment. The Lease constitutes the entire agreement between Landlord
and Tenant. The Lease has not been amended and is in full force and effect. This Memorandum supplements but
does not amend the Lease.
EXECUTED as of the date set forth above.
LANDLORD:
CITY OF FORT WORTH
By:
Name:
Title: City Manager
TENANT:
OMNI FORT WORTH PARTNERSHIP,L.P.,
a Delaware limited partnership
By: Omni Fort Worth GP Corporation,
a Delaware corporation,
its general partner
By:
Name:
Title:
EXHIBfT T"—Memorandum of Rent Commencement Date—Page I
Exhibit A
to
Memorandum of Rent Commencement Date
Description of Premises
[to be attached]
EXHIBIT T"—Memorandum of Rent Commencement Date—Page 2
Dallas—I 4131717v.4
EXHIBIT "C"
Form of Memorandum of Option
MEMORANDUM OF OPTION
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS THAT:
COUNTY OF TARRANT §
This MEMORANDUM OF OPTION is made and entered into as of the day of
April, 2005, by and between THE CITY OF FORT WORTH, a municipal corporation organized
and existing under the laws of the State of Texas ("City"), and OMNI FORT WORTH
PARTNERSHIP, L.P., a Delaware limited partnership ("Omni").
WITNESSETH
Pursuant to that certain Option Agreement (the "Option Agreement"), dated as of
April 2005, by and between City and Omni, City has granted to Omni the option to lease all
or a portion of the retail space within the parking garage to be constructed upon that certain tract
or parcel of land (the "PropertX") which is described on Exhibit "A" attached hereto and
incorporated herein by reference for all purposes.
The Option expires upon the earlier of certain dates set forth in the Option Agreement.
This Memorandum of Option is executed pursuant to the provisions of the Option
Agreement, and is not intended to vary or supersede the terms and conditions of the Option
Agreement. In the event any conflict exists between this Memorandum of Option and the Option
Agreement, the provisions of the Option Agreement shall control.
The Option Agreement and the obligations of City thereunder are hereby intended to run
with the Property and will be binding upon City and each and every subsequent owner, tenant,
subtenant, licensee, manager, and occupant of all or a portion of the Property, but only during the
term of such party's ownership, tenancy, license, management or occupancy of the Property, for
which such party will remain liable and will be binding upon and inure to the benefit of Omni. It
is expressly understood and agreed that acceptance of title to all or a portion of the Property will
automatically, and without further acknowledgement or conformation from the owner constitute
such owner's assumption of the obligations of City under the Option Agreement.
[The remainder of this page has been intentionally left blank.]
EXHIBIT"C",Form of Memorandum of Option—Page I
CITY:
Approved as to form: CITY OF FORT WORTH
By:
City Attorney City Manager
ATTEST:
City Secretary
STATE OF TEXAS §
COUNTY OF TARRANT §
I, , a Notary Public for the County and State aforesaid, certify
that Joe Paniagua personally came before me this day and acknowledged that he is the Assistant
City Manager of the CITY OF FORT WORTH, a municipal corporation organized and existing
under the laws of the State of Texas, and that he, as such Assistant City Manager, being
authorized to do so, executed the foregoing instrument on behalf of said municipal corporation.
WITNESS my hand and official stamp or seal, this day of April, 2005.
(SEAL)
Notary Public, State of Texas
My Commission Expires:
EXHIBIT"C",Form of Memorandum of Option—Page 2
OMNI:
OMNI FORT WORTH PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Omni Fort Worth GP Corporation,
a Delaware corporation,
its general partner
By:
Name: Scott Johnson
Title: Vice President
STATE OF TEXAS §
COUNTY OF TARRANT §
I, , a Notary Public for the County and State aforesaid, certify
that Scott Johnson personally came before me this day and acknowledged that he is the Vice
President of Omni Forth Worth GP Corporation, a Delaware corporation, the general partner of
OMNI FORT WORTH PARTNERSHIP, L.P., a Delaware limited partnership, and as such Vice
President, being authorized to do so, executed the foregoing instrument on behalf of said
corporation and limited partnership.
WITNESS my hand and official stamp or seal, this day of April, 2005.
(SEAL)
Notary Public, State of Texas
My Commission Expires:
EXHIBIT"C",Form of Memorandum of Option—Page 3
Exhibit "A"
to
Memorandum of Option
LEGAL DESCRIPTION
A portion of:
Section 7, TARRANT COUNTY CONVENTION CENTER, an addition to the
City of Fort Worth, Tarrant County, Texas, according to plat thereof recorded in
Volume 388-59, Page 14, Plat Records of Tarrant County, Texas.
EXHIBIT"C",Form of Memorandum of Option—Page 4
Dallas_1\4107290\7
42379-14/11/2005
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 3/29/2005
CONTINUED FROM A PREVIOUS WEEK
DATE: Thursday, March 24, 2005
LOG NAME: 170MNI RETAIL REFERENCE NO.: C-20617
SUBJECT:
Authorize Execution of Option Agreement to Enter into Retail Lease Agreement with Omni Fort
Worth Partnership, L.P. for Portions of City Parking Garage Constructed on Block 7, Tarrant County
Convention Center Addition
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute the attached Option
Agreement to enter into Retail Lease Agreement with Omni Fort Worth Partnership, L.P. for ground level
retail and commercial space within a City-owned parking garage to be constructed on Block 7, Tarrant
County Convention Center Addition.
DISCUSSION:
The City intends to construct a parking garage on a portion of Block 7, Tarrant County Convention Center
Addition. This property is located directly to the west of the Fort Worth Convention Center, south of the
SBC building located on Houston Street and will be north of the Omni Fort Worth Hotel. Approximately
10,000 to 15,000 square feet of retail, restaurant or commercial space (the Retail Space) will be constructed
on the ground level of the garage, subject to final architectural and design specifications approved by the
City Council.
In order to ensure that the Retail Space complements the needs of the hotel and the Fort Worth Convention
Center, the City proposes to grant Omni Fort Worth Partnership, L.P. (Omni) an option to lease all or any
portion of the Retail Space at fair market rent established annually by an appraiser in accordance the City's
standard appraisal procedures with periodic adjustments based on the Consumer Price Index
changes. The term of each such lease will be 10 years, with five (5) consecutive options to renew the lease
for subsequent terms of 10 years each.
The Retail Space will be delivered to Omni in a shell condition, with no construction allowance payable to
Omni. Omni will then sub-lease portions of the Retail Space to various tenants in accordance with a sub-
lease and finish-out acceptable to the City.
The Fort Worth City Parking Garage will be located in Council District 9.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that this action will have no direct and immediate impact on City funds.
Loaname: 170MNT RETATT. Pque 1 of
TO Fund/Account/Centers FROM Fund/AccountlCenters
Submitted for City Manager's Office b, Dale Fisseler (6140)
Joe Paniagua (6191)
Originating Department Head: Tom Higgins (7692)
Additional Information Contact: Peter Vaky (760 1)
Ln¢name- 170MNI RFTATT. Pao- 7 of 7