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HomeMy WebLinkAboutContract 33139 CITY SECRETARY CONTRACT NO. jJL5J AMENDED AND RESTATED ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This AMENDED AND RESTATED ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Agreement") is entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation organized under the laws of the State of Texas, and OMNI FORT WORTH PARTNERSHIP, L.P. ("Omni") to be effective April 27, 2005. RECITALS The City and Omni hereby agree that the following statements are true and correct and constitute the basis upon which the City and Omni have entered into this Agreement: A. The City has created an Economic and Community Development Department in order to, among other things, oversee economic development programs authorized by Texas law and approved by the City Council, including those authorized.by Chapter 380 of the Texas Local Government Code, to promote state and local economic development and to stimulate business and commercial activity in the City, as further outlined in Resolution Na. 2704, adopted by the City Council on January 30, 2001. B. In accordance with the 2005 Comprehensive Plan adopted by the City Council pursuant to M&C G-14691 on February 22, 2005, the City's economic development programs are based on a model of custom-designed incentives and partnership programs with private businesses on a case-by-case analysis of individual projects to help ensure the growth and diversification of the local economy. C. The 2005 Comprehensive Plan recognizes that tourism, both for business and for pleasure, is a significant component of the City's economy and cites the importance of the Convention Center and surrounding hotels as critical elements in the City's efforts to promote tourism in the City. D. A study undertaken in 2002 on behalf of the City by HVS Intemational (the"HVS Study") reveals that if the City is to be competitive amongst its peers, both in Texas and throughout the nation, in its ability to attract convention business to the Convention Center,the City needs to have a hotel with at least 600 first class guest rooms located adjacent to the Convention Center. E. Based on the recommendations of the HVS Study, on July 15, 2003 the City issued a request for proposals for development of a first-class, 600-room Convention Center headquarters hotel. Nine proposals were submitted to the City as of August 28, 2003. A review of those proposals and subsequent negotiations during the fall of 2003 Page 1 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. and winter of 2003/4 led the City to select Omni as the developer of such a Convention Center headquarters hotel. F. Omni is willing to construct the Project, including the Hotel, on real property owned by the City and in accordance with the terms and conditions of this Agreement. This property is located within Tax Increment Reinvestment Zone Number Eight, City of Fort Worth, Texas (the "TIF") and is subject to development under the TIF's project plan, as defined by Section 311.011 of the Texas Tax Code, which has been approved by the City Council. G. Based on all information previously known or provided to the City Council, including, but not limited to, the HVS Study, the City Council believes that this Project will (i) bring additional convention business to and generate increased tourism in the City; (ii) provide increased employment opportunities to citizens of the City; (iii) cause new private development to occur in the vicinity of the Hotel Property; (iv) generate additional net tax revenues immediately from Residential Units that may be constructed on top of the Hotel and upon expiration of the economic development Program established herein from all improvements located on the Hotel Property. Therefore, the City Council hereby finds and determines that by entering into this Agreement, the potential economic benefits that will accrue to the City under the terms and conditions of the Program and this Agreement are consistent with the City's economic development objectives of the City, as set forth in, among other things, the 2005 Comprehensive Plan. H. Omni intends to construct Residential Units on top of the Hotel. These Residential Units will be created as separate legal parcels from the Hotel pursuant to a condominium regime and, except for those Residential Units that remain unsold and otherwise unused for residential purposes during the first five (5) years following the Completion Date of the Project, will be fully taxable by the City and will not be subject to or serve as the basis for calculating any of the grants, financial incentives or other benefits granted to Omni pursuant to this Agreement. I. In connection with the development and operation of the Project, Omni has filed or will file a Condominium Declaration in the real property records of Tarrant County, and Omni has formed or will form a Master Condominium Association whereby Omni will own separate condominium units representing ownership of the Hotel, the Hotel Garage and the Residential Units. The City has agreed to cooperate with Omni in any manner reasonably necessary to create this condominium regime and to file the Condominium Declaration in the real property records of Tarrant County. J. The City and Omni previously entered into that certain Economic Development Program Agreement dated April 27, 2005, a public document on file in the City Secretary's Office as City Secretary Contract No. 31734, as amended by that certain Amendment No. 1 to Economic Development Program Agreement effective as of December 15, 2005, a public document on file in the City Secretary's Office as City Secretary Contract No. 32921 (collectively, the"First 380 Agreement"). Page 2 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. K. Due to construction costs for the Project that will be higher than originally anticipated, the City and Omni wish to enter into this Agreement, which will replace and supersede the First 380 Agreement, in order to increase the amount of the economic incentives that the City will provide Omni in return for Omni's agreement to move forward with the Project and the City's receipt of the public benefits previously outlined in these Recitals. Under this Agreement, the City and Omni will share those increased costs. L. In addition to this Agreement, the City and Omni (or an affiliate of Omni) previously entered into various agreements that took effect on April 27, 2005, including (i) the Tax Abatement Agreement, as amended; (ii) the Ground Lease; (iii) the Room Block Agreement; (iv) a Contract for Exclusive Food, Beverage and Alcoholic Beverage Services at the Convention Center; and (v) an Option Agreement to Enter into Retail Lease Agreement pertaining to the City Retail Space (collectively, the "Development Documents"). M. This Agreement is authorized by Chapter 380 of the Texas Local Government Code. NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: AGREEMENT 1. INCORPORTION OF RECITALS. The City Council hereby finds, and the City and Omni hereby agree, that the recitals set forth above are true and correct and form the basis upon which the City has entered into this Agreement. 2. DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: Abatement Term means the ten (10)-year term during which Omni will receive certain tax abatements under the Tax Abatement Agreement, as more specifically defined in Section 5.2 of the Tax Abatement and as more specifically outlined in the Tax Abatement Agreement. Page 3 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. Central City means the area of the corporate limits of the City within Loop 820 (i) consisting of all Community Development Block Grant ("CDBG") eligible census block groups; (ii) all Enterprise Zones; and (iii) all census block groups that are contiguous by seventy-five percent (75%) or more of their perimeter to CDBG eligible block groups or Enterprise Zones, as well as any CDBG-eligible block in the corporate limits of the City outside Loop 820, as more specifically depicted in the map attached hereto as Exhibit"A", which is hereby made a part of this Agreement for all purposes. Central City Resident means an individual whose principal place of residence is located within the Central City. City Hotel Occupancy Tax Revenue means the amount of revenue from the hotel occupancy tax lawfully assessed and collected by the City pursuant to Chapter 351 of the Texas Tax Code and Chapter 32 of the City Code that is derived from or attributable to the Hotel and paid in a given year to the City. City Hotel Property Tax Revenue means the amount of revenue from a municipal tax lawfully assessed and received by the City pursuant to Texas Tax Code § 302.001(c) based on (i) the entire taxable appraised real property value of the (a) Hotel, (b) the Hotel Garage (but only if the aggregate taxable appraised value of the Residential Units as of the first appraisal following the Completion Date conducted by Tarrant Appraisal District or the appraisal district that has jurisdiction at the time is at least $8.6 million), and (c) the Hotel Property(but only if the Hotel Property has been acquired by Omni pursuant to Omni's exercise of the Option or the City's exercise of the Put Option in accordance with Article IX of the Ground Lease), and (ii) the entire taxable appraised value of Tangible Personal Property located in (a) the Hotel and (b) the Hotel Garage (but only if the aggregate taxable appraised value of the Residential Units as of the first appraisal following the Completion Date conducted by Tarrant Appraisal District or the appraisal district that has jurisdiction at the time is at least $8.6 million). City Hotel Property Tax Revenue does not include any tax revenue assessed and received by the City that is based on the taxable appraised value of any of the Residential Units or any Tangible Personal Property located in any of the Residential Units. City Hotel Sales Tax Revenue means the amount of revenue from a municipal sales tax lawfully assessed and received by the City pursuant to Texas Tax Code §§ 321.101(a) and 321.103 that is derived from or attributable to sales transacted in the Hotel only, whether by Omni or another person or entity, for merchandise physically located in the Hotel and/or the Hotel Garage. City Hotel Sales Tax Revenue specifically excludes all revenue from (i) the Crime Control District Sales Tax imposed by the City pursuant to Texas Tax Code §323.105 and Local Government Code §363:005 and (ii) the Transit Authority Sales Tax paid to the City by the Fort Worth Transportation Authority under City Secretary Contract No. 19689, as previously or subsequently amended or restated, from the sales tax imposed by the Fort Worth Transportation Authority pursuant to Texas Tax Code Chapter 322. Page 4 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. City Retail Space means those portions of the ground floor of the parking garage owned by the City and located to the north of the Hotel Property which are dedicated for retail operations and leased by the City to Omni. City Sources Capped Amount means an aggregate gross amount equal to Eighty-nine Million Dollars ($89,000,000) that is attributable to (a) those portions of Program Grants calculated on the basis of City Hotel Occupancy Tax Revenue and City Hotel Sales Tax Revenue (and to the extent that Sections 5.1.2 and 5.1.5 apply, Omni Residential Unit Property Tax Revenue and City Hotel Property Tax Revenue, respectively), plus (b) the value of abatements received by Omni pursuant to the Tax Abatement Agreement, but excluding (i) any sums payable by the City to Omni as a Lease-Based Grant, as defined in and in accordance with Section 6; (ii) any sums payable by the City to Omni as a Completion Grant, as defined in and in accordance with Section 7; (iii) any sums payable by the City to Omni as a Hotel Property Sale-Based Grant, as defined in and in accordance with Section 8; (iv) any sums payable by the City to Omni as a State Substitute Grant, as defined in and in accordance with Section 9, including any interest on the Guaranteed State Amount, as defined in and in accordance with Section 9.3; and (v) any interest on the unpaid Guaranteed City Amount, as defined in and in accordance with Sections 10.2 and 10.3. Completion Date means the date as of which the Project is Substantially Complete. Completion Deadline means 1,320 calendar days from the Effective Date of this Agreement, as may be extended by Force Majeure. Completion Guaranty means the guaranty from Omni's ultimate parent company, TRT Holdings, Inc. in the form attached hereto as Exhibit "B", which is hereby made a part of this Agreement for all purposes and pursuant to which TRT Holdings, Inc. guarantees, at no cost to the City, the timely completion and payment of costs associated with construction of the Project. Convention Center means the Fort Worth Convention Center located in the City at 1201 Houston Street. CPR Mediation Procedure means the mediation procedure promulgated by the CPR Institute for Dispute Resolution. Enterprise Zone means a zone designated as such pursuant to the Texas Enterprise Zone Act, Chapter 2303, Subchapter F of the Texas Government Code. Excluded Hotel Revenue means any City Hotel Occupancy Tax Revenue, City Hotel Sales Tax Revenue, City Hotel Property Tax Revenue, Omni Residential Unit Property Tax Revenue, State Hotel Occupancy Tax Revenue and/or State Hotel Sales Tax Revenue not used to calculate the amount of a Program Grant payable by the City to Omni under this Agreement, whether on account of a reduction in the amount of or a Page 5 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. suspension of any such Program Grant or on account of the City Sources Capped Amount being met. First Tier Flap,means one of the following brand names under which the Hotel is operating and marketing itself. Westin; Sheraton; Marriott; Hilton; Renaissance; Hyatt, Omni; or another first-class hotel brand name that has specifically been approved by the City Council of the City for purposes of this Agreement, which approval shall not be unreasonably withheld. Force Majeure means (i) with respect to Omni, an event beyond Omni's reasonable control, including, without limitation, acts of God, fires, strikes, national disasters, wars, riots, material or labor restrictions, delays caused by unforeseen structural issues, weather delays, injunctions or other legal proceedings brought by third parties, unreasonable delays by the City in issuing any permits, consents or certificates of occupancy or conducting any inspections of or with respect to the Project, delays caused by the City's failure to complete "Lessor's Work" as provided for and defined in the Ground Lease, or delays caused by unforeseen construction or site issues, but shall not include construction delays caused due to purely financial matters involving Omni, such as, without limitation,delays in the obtaining of adequate financing, and(ii)with respect to the City, an event beyond the City's reasonable control, including, without limitation, acts of God, fires, strikes, national disasters, wars, riots, material or labor restrictions, or acts of third parties. Fort Worth Certified M/WBE Company means a minority or woman-owned business that has received certification as either a minority business enterprise (MBE) or a woman business enterprise (WBE) by either the North Texas Regional Certification Agency (NTRCA) or the Texas Department of Transportation (TxDOT), Highway Division, and has a principal office located within the corporate limits of the City. Fort Worth Company means a business that has a principal office located within the corporate limits of the City. Fort Worth Resident means an individual whose principal place of residence is located within the corporate limits of the City. Full-time Equivalent Job means a job held by one (1) or more individuals employed by Omni (or its Hotel manager and any other sublessee or subcontractor operating within the Hotel and the Hotel Garage) with respect to the Hotel or the Hotel Garage for a period of forty(40) hours per week. Ground Lease means that certain lease agreement pursuant to which the City will lease the Hotel Property to Omni. Hard Construction Costs means the following site development and building costs expended directly in connection with the Project: actual construction costs, signage costs, and the costs of labor, supplies and materials, including all costs and fees paid to Page 6 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. Omni's general contractor, subcontractors and suppliers. Hotel means a hotel with, among other things, approximately six hundred (600) guest rooms; two (2) full-service restaurants; a lobby bar; approximately 48,000 square feet of dedicated meeting space; an exercise facility; an outdoor pool with sundeck; valet parking service; business center, wireless Internet access in guest rooms, lobby and public spaces; and other supporting facilities commensurate with a full-service convention center hotel. The Hotel Garage and the Residential Units are not part of the Hotel. Hotel Garage means the parking garage for the Hotel and the Residential Units with at least four hundred (400) spaces and other related improvements constructed by Omni on the Hotel Property. Hotel Property means the City-owned land on which the Hotel, the Hotel Garage and the Residential Units will be constructed and located and excludes any improvements thereon, including the Hotel, the Residential Units and the Hotel Garage themselves. A diagram of the Hotel Property is attached hereto as Exhibit"C". Minimum Hotel Operating Standards means the operating criteria (but not the facilities standards) necessary for a hotel property to receive either a three (3)-star rating by Mobil Travel Guide or the operating criteria(but not the facilities standards) necessary for a hotel property to receive a four (4)-diamond rating by the American Automobile Association, both of which are described and set forth in Exhibits "D-1" and "D-2", respectively, which Exhibits are attached hereto and hereby made a part of this Agreement for all purposes. Omni shall at no time be required to demonstrate receipt or maintenance of such ratings. Omni Affiliate means an entity that controls, is controlled by or is under common control with Omni. Omni Residential Unit Property Tax Revenue means the amount of revenue from a municipal tax lawfully assessed and received by the City pursuant to Texas Tax Code § 302.001(c) based on the entire taxable appraised real property value of all Residential Units owned by Omni or an Omni Affiliate. Omni Residential Unit Property Tax Revenue does not include any tax revenue assessed and received by the City that is based on the taxable appraised value of any Residential Unit that is owned by a person or entity other than Omni or an Omni Affiliate or any Residential Unit owned by Omni or an Omni Affiliate that is leased or otherwise inhabited by any person or entity. Option has the same meaning as that ascribed to it in Section 9.1 of the Ground Lease. Program means the economic development program, established in general by City Council Resolution No. 2704, and outlined specifically in this Agreement, which is authorized by Chapter 380 of the Texas Local Government Code. Page 7 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. Proaram Grants means the economic development grants paid by the City to Omni in accordance with this Agreement and as part of the Program Proiect means the Hotel, Hotel Garage and Residential Units. Put Option has the same meaning as that ascribed to it in Section 9.2 of the Ground Lease. Residential Units means at least 125,000 aggregate square feet of residential condominium spaces constructed on top of the Hotel and initially owned by Omni. Room Block Agreement means the written agreement between the City and Omni under which Omni will cause the Hotel to have reserved specific percentages of the Hotel's standard guest rooms and suites for specific periods of time in the future for attendees, participants and planners of conventions and/or trade shows at the Convention Center. State Hotel Occupancy Tax Revenue means the amount of revenue from the hotel occupancy tax lawfully assessed and collected by the State of Texas pursuant to Chapter 156 of the Texas Tax Code and refunded to the City by operation of Section 351.102 of the Texas Tax Code, and that is derived from or attributable to the Hotel. State Hotel Sales Tax Revenue means the amount of revenue from a sales tax lawfully assessed and collected by the State of Texas pursuant to Texas Tax Code § 151 that is derived from or attributable to sales transacted in the Hotel, whether by Omni or another person or entity, for merchandise physically located in the Hotel and/or the Hotel Garage, and refunded to the City by operation of Sections 351.102 and 151.429 of the Texas Tax Code. Substantially Complete means (i) as to the Hotel and the Hotel Garage, that a final or temporary certificate of occupancy has been issued for all of the Hotel(including, but not limited to, all guest rooms and public areas) and the Hotel Garage, and both the Hotel and the Hotel Garage are lawfully open for business to the general public, and (ii) as to the Residential Units, that the core and shell of the portion of the Project comprising the Residential Units has been constructed and the portions of the electrical, plumbing and heating/ventilation/air conditioning systems that are common to all Residential Units have been constructed to provide for vertical (but not necessarily horizontal) distribution throughout the portion of the Project comprising the Residential Units, in each case substantially in accordance with the plans and specifications for the Project. Supply and Service Expenditures means expenditures made for supplies and services provided directly in connection with the operation and maintenance of the Hotel and the Hotel Garage. Page 8 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. Taneible Personal Property means any personal property that is owned by Omni and subject to ad valorem taxation by the City. Tax Abatement Aereement means that agreement between the City and Omni pursuant to which the City will abate certain real and personal property taxes payable by Omni to the City and attributable to the Hotel and, subject to certain conditions set forth in the Tax Abatement Agreement, the Hotel Garage, but specifically excluding any of the Residential Units. 3. TERM. This Agreement shall be effective as of April 27, 2005 (the "Effective Date") and, unless terminated earlier as provided by and in accordance with this Agreement, shall expire upon the date as of which the City has paid to Omni (i) all required Performance-Based Grants, as defined in and pursuant to Section 5; (ii) all Lease-Based Grants, as defined in and pursuant to Section 6; (iii) the Completion Grant, as defined in and pursuant to Section 7; (iv) if applicable, the Hotel Property Sale-Based Grant, as defined in and pursuant to Section 8; (iii) any required State Substitute Grant or Grants, as defined in and pursuant to Section 9; and (v) any required City Substitute Grants, as defined in and pursuant to Section 10 (the"Term"). 4. OMNI'S OBLIGATIONS AND COMMITMENTS. 4.1. Ground Lease. The City and Omni shall execute the Ground Lease simultaneously upon execution of this Agreement. Subject to Section 7 of this Agreement and as permitted by Section 272.001(b)(6) of the Texas Local Government Code, the Ground Lease shall grant Omni an option to purchase the Hotel Property from the City, and shall grant the City the right to put the Hotel Property to Omni, for the fair market value of the Hotel Property at the time, which value shall be determined by an appraiser that is selected by the City and reasonably acceptable to Omni. 4.2. Construction and Completion of Proiect. Omni agrees that by the Completion Deadline and in accordance with the schedule attached hereto as Exhibit "E", which is hereby made a part of this Agreement for all purposes, (i) at least One Hundred Million Dollars ($100,000,000) in Hard Construction Costs shall have been expended or incurred for the Project and (ii) the Project shall be Substantially Complete. For any sums incurred but not yet paid as of the Completion Date, Omni shall provide the City with proof that such amounts were paid promptly following actual payment. Page 9 Amended and Restated Economic Development Program Agreement I between City of Fort Worth and Omni Fort Worth Partnership,LP. - - ` 4.3. Desi¢n and Architectural Standards and Style of Hotel. The Hotel will be Texas-themed, and the design of any above-ground portion of the Hotel Garage will complement the design of the Hotel. The City will have the right to approve the preliminary and final plans and specifications for the Hotel and the Hotel Garage prior to Omni's causing any work to be undertaken on the Hotel, which approvals shall not unreasonably be withheld. Prior to approval by the City of the final plans and specifications for the Hotel and the Hotel Garage, Omni (i) will meet monthly with a committee of individuals designated by the City to discuss and receive comment with respect to the preliminary plans and specifications and(ii) agrees to make not more than two (2) presentations to the City Council of the City at times reasonably designated by the City. If the City does not notify Omni in writing of any concerns or objections that the City has with regard to any information or documents that must be approved by the City pursuant to this Section 4.3 within ten (10) business days following receipt of same (the "City Review Period"), the City shall be deemed to have approved any such information or documents. If the City does notify Omni in writing of any concerns or objections that the City has with regard to any such information or documents within the City Review Period, Omni and the City will diligently work to resolve City's concerns and objections. If Omni and the City are unable to resolve any such concerns within ten (10) business days following the end of the City Review Period (the "Design Resolution Deadline"), the parties shall endeavor to settle the dispute by mediation pursuant to the then-current CPR Mediation Procedure, in which case the Completion Deadline shall be extended by the number of days that elapse between the Design Resolution Deadline and final resolution of the City's concerns and objections, whether by mediation or otherwise. If the parties are not able to settle the dispute by mediation, the dispute shall be settled pursuant to and in accordance with the arbitration procedure set forth in Section 12.4.3. Omni agrees that it shall not make any material modification to the plans and specifications approved by the City unless it notifies the City in writing and receives approval from the City in accordance with the procedure set forth above. 4.4. Completion and Performance Guaranty. Because the Project will not be owned or paid for by the City at any time, Omni will not be subject to statutory competitive bidding requirements applicable to the City. The Completion Guaranty shall be used to assure that the Project will be Substantially Completed at no cost to the City in a manner that fully protects the City from liability pursuant to operation of Section 2253.027 of the Texas Government Code. Notwithstanding the foregoing, the City and Omni acknowledge and agree that this Agreement and all other Development Documents will automatically terminate (and the parties will have no further rights or obligations thereunder) if the Completion Guaranty is not delivered to the City by 11:59 P.M. on January 31, 2006, with the understanding that Omni Page 10 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. may not commence or cause to be commenced any Project construction work on the Hotel Property unless and until the Completion Guaranty has been delivered to the City. The Completion Guaranty shall allow the City to collect from TRT Holdings, Inc. any overpayments of any Program Grants that reporting "true-ups" or audits undertaken pursuant to this Agreement confirm to have occurred, with the understanding that the City shall first seek reimbursement for any such overpayment from Omni. Notwithstanding anything to the contrary herein, if the City enforces the Completion Guaranty in order to complete the Project, the City shall not have a right to terminate this Agreement,nor shall the City have the right to reduce any Program Grant, for Omni's failure by the Completion Deadline to expend minimum Hard Construction Costs for the Hotel or to Substantially Complete the Project. 4.5. Construction Spendine Commitments. 4.5.1. Fort Worth Companies. By the Completion Date, Omni agrees to have spent or incurred a minimum of Twenty Million Dollars ($20,000,000) in Hard Construction Costs for the Project with Fort Worth Companies. For any sums incurred but not yet paid as of the Completion Date, Omni shall provide the City with proof that such amounts were paid promptly following actual payment. 4.5.2. Fort Worth Certified M/WBE Companies. By the Completion Date, Omni agrees to have spent or incurred a minimum of Fifteen Million Dollars ($15,000,000) in Hard Construction Costs for the Project with Fort Worth Certified M/WBE Companies. Dollars spent with Fort Worth Certified M/WBE Companies shall also count as dollars spent with Fort Worth Companies for purposes of the commitment set forth in Section 4.5.1. This commitment has been approved by the City's Minority and Women Business Enterprise Advisory Committee. For any sums incurred but not yet paid as of the Completion Date, Omni shall provide the City with proof that such amounts were paid promptly following actual payment. 4.6. Employment Commitments. In the event that material portions of the Hotel are closed on account of casualty or renovation and Omni is diligently pursuing repair or renovation of the Hotel, the City and Omni will negotiate in good faith and mutually agree to equitable adjustments of the employment commitments set forth in this Section 4.6, taking into account the circumstances existing at the time with respect to the casualty or renovation and the degree of repair or renovation required. Page 11 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. 4.6.1. Overall Employment. From the Completion Date through the end of the Term of this Agreement(as measured for each Annual Reporting Month, in accordance with and defined in Section 4.11.5 hereop, Omni agrees that at least two hundred fifty (250) Full-time Equivalent Jobs shall be provided and filled in the Hotel and the Hotel Garage. 4.6.2. Fort Worth Residents. From the Completion Date through the end of the Term of this Agreement (as measured for each Annual Reporting Month, in accordance with and defined in Section 4.11.5 hereof), Omni agrees that at least one hundred twenty-five(125)Full-time Equivalent Jobs provided in the Hotel and the Hotel Garage shall be held by Fort Worth Residents. Residency of an employee shall be determined by the address of residence provided by the employee. 4.6.3. Central City Residents. From the Completion Date through the end of the Term of this Agreement (as measured for each Annual Reporting Month, in accordance with and defined in Section 4.11.5 hereof), Omni agrees that at least sixty- two (62) Full-time Equivalent Jobs provided in the Hotel and the Hotel Garage shall be held by Central City Residents. A Full-time Equivalent Job held by a Central City Resident shall also count as a Full-time Equivalent Job held by a Fort Worth Resident for purposes of the commitment set forth in Section 4.6.2. Residency of an employee shall be determined by the address of residence provided by the employee. 4.7. Supply and Service Expenditure Commitments. 4.7.1. Fort Worth Companies. Beginning with the calendar year in which the Completion Date occurs, and in each subsequent year of the Term of this Agreement, Omni will cause at least $100,000 in Supply and Service Expenditures to be made with Fort Worth Companies; provided, however, that if the Completion Date occurs on a date other than January 1, then only for the calendar year in which the Completion Date occurs,this commitment shall be reduced to an amount equal to the product of$100,000 multiplied by a fraction, the numerator of which is the number of days remaining in the year after the Completion Date and the denominator of which is 365. Omni's compliance with this Section 4.7.1 shall be subject to the grace period allowed by Section 5.3.4. Page 12 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. 4.7.2. Fort Worth Certified M/WBE Companies. Beginning with the calendar year in which the Completion Date occurs, and in each subsequent year of the Term of this Agreement, Omni will cause at least$50,000 in Supply and Service Expenditures to be made with Fort Worth Certified M/WBE Companies; provided, however, that if the Completion Date occurs on a date other than January 1, then only for the calendar year in which the Completion Date occurs, this commitment shall be reduced to an amount equal to the product of$50,000 multiplied by a fraction, the numerator of which is the number of days remaining in the year after the Completion Date and the denominator of which is 365. Dollars spent with Fort Worth Certified M/WBE Companies shall also count as dollars spent with Fort Worth Companies for purposes of the commitment set forth in Section 4.7.1. This commitment has been approved by the City's Minority and Women Business Enterprise Advisory Committee. Omni's compliance with this Section 4.7.2 shall be subject to the grace period allowed by Section 5.3.5. 4.8. Minimum Hotel Operatine Standards. Throughout the Term and to the extent that Omni is operating the Hotel, the Hotel shall at all times be operated in accordance with the Minimum Hotel Operating Standards, as defined in Section 2. 4.9. Competitive Name Brand. Throughout the Term and to the extent that Omni is operating the Hotel, the Hotel must be operating and marketing itself under a First Tier Flag brand name that includes the words "Fort Worth". So long as Omni owns the Hotel,the Hotel will be branded as the"Omni Fort Worth Hotel." 4.10. Room Block Aereement. The City and Omni have executed the Room Block Agreement. The Room Block Agreement shall be in effect and in full force beginning April 27, 2005 and at all times thereafter until the expiration date set forth therein. 4.11. Reports and Filines. 4.11.1. Plan for Use of Fort Worth Certified M/WBE Companies. Omni's plan as to how it will attain its construction spending commitments for Fort Worth Certified M/WBE Companies, as outlined in Section 4.5.2, is to make such commitments part of the bid conditions for the Project construction contract and to require the selected general Page 13 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. contractor to comply with such requirements. Omni shall also monitor the general contractor's compliance with such requirements. Omni agrees to meet with the City's M/WBE Office and Minority and Women Business Enterprise Advisory Committee from time to time as reasonably necessary for assistance in implementing such plan 4.11.2. Monthly Spending Reports. From the date as of which Omni receives a permit to initiate construction of any portion of the Project until the Completion Date, in order to enable the City to (i) assist Omni in meeting its commitment for construction spending with Fort Worth Certified M/WBE Companies and (ii) calculate the amount of each Completion Grant that is payable pursuant to Section 7.1, Omni will provide the City with a monthly report (due no later than the last day of each month for the preceding calendar month) in a form reasonably acceptable to the City that specifically outlines the (i) then-current aggregate Hard Construction Costs expended by and on behalf of Omni for construction of the Project as well as such Hard Construction Costs expended since the last date reported in the previous month's report (the "Incremental Construction Expenditures") and (ii) the then-current aggregate Hard Construction Costs expended by and on behalf of Omni with Fort Worth Certified M/WBE Companies for construction of the Project. If final information is not available when the monthly report is filed, such information shall be included on the next monthly report following availability of such information. Omni agrees to meet with the City's M/WBE Office and Minority and Women Business Enterprise Advisory Committee from time to time as reasonably necessary for assistance in implementing such plan and to address any concerns that the City may have with such plan. 4.11.3.Construction Spending Reports. Once Omni has caused to be expended at least $100,000,000 in Hard Construction Costs for the Project, Omni will make available to the City data that specifically outlines such expenditures, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid by Omni. In addition, as soon as practicable but within one hundred eighty (180) calendar days following the Completion Date, Omni will provide the City with a report in a form reasonably acceptable to the City that specifically outlines all Hard Construction Costs expended by Omni for construction of the Project, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid by Omni. This report shall also include Hard Construction Costs expended by Omni for construction of the Project with Fort Worth Page 14 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. Companies and with Fort Worth Certified M/WBE Companies, together with supporting invoices and other documents necessary to demonstrate that such amounts were actually paid by Omni to such companies. This report is required in order for the City to assess Omni's compliance with its construction spending commitments for Fort Worth Companies and Fort Worth Certified M/WBE Companies, as set forth in Sections 4.5.1 and 4.5.2, respectively, for purposes of calculating Performance-Based Grants paid by the City in accordance with Section 5 of this Agreement. 4.11.4. Ouarterly Supply and Service Spendinp-Report Beginning on the Completion Date and through the date as of which Omni has received all Performance-Based Grants owed by the City pursuant to Section 5 of this Agreement, within thirty (30) calendar days following the end of each calendar quarter Omni will provide or cause to be provided a report to the City in a form reasonably acceptable to the City that specifically outlines the then-aggregate Supply and Service Expenditures made in the same calendar year with Fort Worth Companies and Fort Worth Certified M/WBE Companies. Omni agrees to meet with the City's M/WBE Office and Minority and Women Business Enterprise Advisory Committee from time to time as reasonably necessary for assistance in any given calendar year in attaining its commitment for Supply and Service Expenditures with Fort Worth Certified M/WBE Companies, as set forth in Section 4.7.2,or to address any concerns arising from the report. 4.11.5. Employment Data. On or before ninety (90) calendar days following the last day of each Annual Reporting Month during either the period between the Completion Date and the date as of which Omni has received all Performance-Based Grants owed by the City pursuant to Section 5 of this Agreement or the period between January 1 following the Completion Date and the date as of which Omni has received all Performance-Based Grants owed by the City pursuant to Section 5 of this Agreement, whichever is selected by Omni at the outset, Omni shall make available or cause to be made available to the City data that sets forth (i) the total number of Full-time Equivalent Jobs in the Hotel and the Hotel Garage that were provided and filled during the month of October (or another month selected by Omni) (each an "Annual Reporting Month") and (ii) the total number of Full-time Equivalent Jobs in the Hotel and the Hotel Garage that were held during the Annual Reporting Month by Fort Worth Residents and by Central City Residents, together with reasonable documentation regarding the residency of each such employee (the "Employment Report"). For purposes of measuring attainment of the employment commitments set forth in Sections 4.6.1, 4.6.2 and 4.6.3, Page 15 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. employment numbers for each Annual Reporting Month shall be deemed to apply to the entire calendar year in which the Annual Reporting Month occurs. 4.11.6. FF&E Reserve Data. Following the Completion Date, upon request by the City (but no more than two (2) times per year) Omni shall make available to the City data that sets forth the balance of the FF&E Reserve, as defined in Section 4.14, any expenditures made from the FF&E Reserve and the nature thereof; and, if any such expenditures were made, evidence that is reasonably satisfactory to the City that Omni has deposited sufficient sums necessary for the FF&E Reserve to meet the requirements of Section 4.14. 4.12. Inspection of Proiect. At any time during the Term of this Agreement (but no more frequently than six (6) times per year), following reasonable advance notice to Omni, the City shall have, and Omni shall provide or cause to be provided, access to the Project in order for the City to inspect the same to ensure compliance with this Agreement,with the understanding that the City shall not have the right to inspect the Residential Units following the date as of which the Residential Units are Substantially Complete. Omni may require that any individuals inspecting the Project on behalf of the City be escorted at all times by an employee or authorized representative of Omni. However, Omni, its officers, agents, servants, employees, contractors and subcontractors, shall cooperate fully with the City during any such inspection. 4.13. Audits. Omni agrees that no more than once per year during the Term of this Agreement the City will have the right to audit, at the City's own expense, (i) the financial and business records of Omni that relate to the Hard Construction Costs expended by Omni in constructing the Project, including Hard Construction Cost expenditures with Fort Worth Companies and Fort Worth Certified M/WBE Companies; (ii) the employment records of Omni solely in order to ascertain the residency of any employees that Omni has claimed as Fort Worth Residents or Central City Residents; (iii) the financial and business records of Omni with regard to Supply and Service Expenditures with Fort Worth Companies and Fort Worth Certified M/WBE Companies (collectively "Project-Related Records"). Omni shall make all Project-Related Records available for review by the City at the Hotel or at another location in the City acceptable to both parties following reasonable advance notice by the City and shall otherwise cooperate fully with the City during any audit. Page 16 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. 4.14. FF&E Reserve. Omni shall reserve in book entry form the following percentage of the Hotel's revenues for repairs or replacements of furniture, fixtures and equipment in the Hotel (the "FF&E Reserve") and necessary maintenance of and repairs to the Hotel: (i) in the year in which the Completion Date occurs, 0.0%; in the first full calendar year following the Completion Date, 1.0%; in the second full calendar year following the Completion Date, 2.0%; in the third full calendar year following the Completion Date and in each year thereafter, 3.5%. The reinvestment of the FF&E Reserve shall be calculated over the life cycle of the assets to be replaced (and such reinvestment shall be guaranteed by Omni). The FF&E Reserve will be utilized by Omni from time to time in a commercially reasonable manner and, in any event, as necessary to operate the Hotel in accordance with all Minimum Hotel Operating Standards. 4.15. Pre-Marketing of Hotel In accordance with its normal practices for opening a new hotel, Omni shall fund expenses for pre-marketing of the Hotel (including construction of a model room and location of pre-opening sales offices within the Convention Center in space provided by the Convention Center at no cost) and shall prepare a pre-marketing strategy in coordination with the City. 4.16. Restrictive Covenant. As part of the consideration under this Agreement, Omni agrees that it will not, without the prior written consent of the City, directly or indirectly own, manage, market or otherwise participate in any other Omni Hotel located within a five(5)-mile radius of the Convention Center. 4.17. Lease of City Retail Space. The City and Omni have executed an option to lease the City Retail Space. The City Retail Space shall be raw, shell space and will be leased to Omni at its fair market value at the time, which value shall be determined by an appraiser that is selected by the City and reasonably acceptable to Omni. 4.18. City Job Training Program. The City and a third party provider selected by the City shall administer a job training program pursuant to which participating individuals selected by the City and reasonably acceptable to Omni will receive the basic skills instruction and on-site training necessary for those individuals to be qualified for employment by Omni in Full-time Equivalent Jobs at the Hotel (the "Job Training Program"). Solely from funds paid by Omni to the City pursuant to Page 17 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. and in accordance with Sections 5.3.1, 5.3.2 and 5.3.3, if any, Omni shall provide funding for the Job Training Program if it is determined that Omni failed to meet the Overall Employment Commitment, the Fort Worth Employment Commitment and/or the Central City Employment Commitment, as those terms are defined in Sections 5.3.1, 5.3.2 and 5.3.3, respectively. The City, the third party provider and Omni will consult and work together in developing the guidelines and an appropriate curriculum for the Job Training Program As part of the Job Training Program, Omni will provide the City and the third party provider with a list of open Full-time Equivalent Jobs and will give hiring preference to interns who have successfully completed the Job Training Program. At least fifty percent (50%)of funds contributed by Omni to the Job Training Program shall be used to fund salaries for individuals participating in the Job Training Program 5. PERFORMANCE-BASED GRANTS. Subject to Sections 12.4 and 12.5 and all other terms and conditions of this Agreement, the City will pay Omni quarterly Program Grants(except for Program Grants paid in accordance with Sections 5.1.2 and 5.1.5, which will be paid annually), beginning with the first full quarter following the Completion Date and otherwise in accordance with this Section 5, that are based on the degree to which Omni met its various commitments to (i) expend minimum Hard Construction Costs for the Project with Fort Worth Companies and Fort Worth Certified M/WBE Companies; (ii) annually employ a minimum number of individuals, Fort Worth Residents and Central City Residents in the Hotel and the Hotel Garage; and (iii) annually make minimum Supply and Service Expenditures with Fort Worth Companies and Fort Worth Certified M/WBE Companies, all as more specifically outlined in this Section 5 (each a"Performance-Based Grant"). 5.1. Base Amount of Each Performance-Based Grant. The base amount of each Performance-Based Grant (the "Base Amount") shall be as follows: 5.1.1. Ouarterly Grants for Quarters 1-20 (First 5 Years FollowinE Completion Date). The Base Amount of each Performance-Based Grant to be paid quarterly for the twenty (20) consecutive quarters following the Completion Date shall equal the sum of (i) 100% of the City Hotel Occupancy Tax Revenue received by the City during the previous quarter, plus (ii) 100% of the City Hotel Sales Tax Revenue received by the City during the previous quartafprovided, however, that City Hotel Occupancy Tax Revenue and City Hotel Sales Tax Revenue shall cease to be used in calculating all or any portion of a Performance-Based Grant once the City Sources Capped Amount has been reached),plus (iii) 100% of the State Hotel Occupancy Tax Revenue received by the City during the previous Page 18 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. quarter,plus (iv) 100% of the State Hotel Sales Tax Revenue received by the City during the previous quarter. 5.1.2. Annual Grants for 5 Years Following Exairation of First Full Calendar Year After Comi2letion Date. In addition to the quarterly Performance-Based Grants payable hereunder, and unless and until the City Sources Capped Amount has been reached, the City shall also pay Omni five (5) annual Performance-Based Grants, beginning March 1 of the second full calendar year following the Completion Date, the Base Amount of which will equal 100% of Omni Residential Unit Property Tax Revenue received by the City between January 31 of the same calendar year and February 1 of the preceding calendar year. For example, if the Completion Date is October 1, 2008, the first annual Performance-Based Grant payable pursuant to this Section 5.1.2 will be due March 1, 2010 and will be based on Omni Residential Unit Property Tax Revenue received by the City in the period between February 1, 2009 and January 31, 2010. Notwithstanding anything to the contrary herein, once the City Sources Capped Amount has been reached, the City shall no longer be obligated to pay Omni any Performance-Based Grants based on Omni Residential Unit Property Tax Revenue. 5.1.3. Ouarterly Grants for Ouarters 21-40 (Years 6-10). The Base Amount of each quarterly Performance-Based Grant for the twenty-first (21st) through the fortieth (40th) consecutive quarters following the Completion Date shall equal the sum of(i) 100%of the City Hotel Occupancy Tax Revenue received during the previous quarter,plus (ii) 100%of the City Hotel Sales Tax Revenue received by the City during the previous quarter (provided, however, that City Hotel Occupancy Tax Revenue and City Hotel Sales Tax Revenue shall cease to be used in calculating all or any portion of a Performance-Based Grant once the City Sources Capped Amount has been reached),plus (iii) 100% of the State Hotel Occupancy Tax Revenue received by the City during the previous quarter,plus (iv) 100% of the State Hotel Sales Tax Revenue received by the City during the previous quarter. 5.1.4. Ouarterly Grants for Ouarters 41-60 (Years 11-15). Unless and until the City Sources Capped Amount has been reached, the Base Amount of each quarterly Performance-Based Grant for the forty-first (41st) through the sixtieth (60th) consecutive quarters following the Completion Date shall equal 100% of the City Hotel Occupancy Tax Revenue received by the City during the previous quarter. Notwithstanding anything to the contrary herein, once the City Sources Capped Amount has been reached, the City shall no longer be obligated to Page 19 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. pay Omni any Performance-Based Grants. 5.1.5. Annual Grants for 5 Years Following Anniversary of Expiration of Abatement Term Under Tax Abatement Agreement. In addition to the quarterly Performance-Based Grants payable hereunder, and unless and until the City Sources Capped Amount has been reached, the City shall also pay Omni five (5) annual Performance-Based Grants, beginning March 1 of the second full calendar year following expiration of the Abatement Term under the Tax Abatement Agreement, the Base Amount of which will equal 100% of the City Hotel Property Tax Revenue received by the City between January 31 of the same calendar year and February 1 of the preceding calendar year. For example, if the Abatement Term expires December 31, 2018, the first annual Performance-Based Grant payable pursuant to this Section 5.1.5 will be due March 1, 2020 and will be based on City Hotel Property Tax Revenue received by the City in the period between February 1, 2019 and January 31, 2020. Notwithstanding anything to the contrary herein, once the City Sources Capped Amount has been reached, the City shall no longer be obligated to pay Omni any Performance-Based Grants. 5.1.6. Ouarterly Grants for Quarters 61-72 (Years 16-18). Unless and until the City Sources Capped Amount has been reached, the Base Amount of each quarterly Performance-Based Grant for the sixty-first (61st) through the seventy-second (72nd) consecutive quarters following the Completion Date shall equal the 100% of the City Hotel Occupancy Tax Revenue received by the City during the previous quarter. Notwithstanding anything to the contrary herein, once the City Sources Capped Amount has been reached, the City shall no longer be obligated to pay Omni any Performance-Based Grants. 5.2. City Credits for Omni's Failure to Meet All Construction Commitments. Notwithstanding anything to the contrary herein, the City shall receive an aggregate credit towards its obligation to pay Omni Performance-Based Grants based on the degree to which Omni failed to meet its construction spending commitments with Fort Worth Companies and Fort Worth Certified M/WBE Companies, as follows: Page 20 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. 5.2.1. Failure to Meet Construction Spendine Commitment with Fort Worth Companies. If, by the Completion Date, Omni failed to spend or incur at least Twenty Million Dollars ($20,000,000) in Hard Construction Costs for the Project with Fort Worth Companies, as outlined in Section 4.5.1 (the "Fort Worth Construction Commitment"), the City will receive a credit toward its obligation to pay Omni Performance-Based Grants equal to the number of dollars by which Omni failed to meet the Fort Worth Construction Commitment less the amount of any credit received by the City pursuant to Section 5.2.2. For example, if only $17,500,000 in Hard Construction Costs for the Project were spent with Fort Worth Companies (and assuming the City receives no credit pursuant to Section 5.2.2), then the City would receive a credit toward its obligation to pay Omni Performance-Based Grants equal to $2,500,000. In the event that any amounts reported as incurred are subsequently determined to have not actually been expended, the City, at the City's election, may collect any Program Grant overpayment(s) either through a "true-up" of the City credit set forth herein or through reimbursement from Omni. 5.2.2. Failure to Meet Construction Spending Commitment with Fort Worth Certified M/WBE Companies. If, by the Completion Date, Omni failed to spend or incur Fifteen Million Dollars ($15,000,000) in Hard Construction Costs for the Project with Fort Worth Certified M/WBE Companies, as outlined in Section 4.5.2 (the "M/WBE Construction Commitment"), the City will receive a credit toward its obligation to pay Omni Performance-Based Grants equal to the number of dollars by which Omni failed to meet the M/WBE Construction Commitment. For example, if only $14,500,000 in Hard Construction Costs for the Project were spent with Fort Worth Certified M/WBE Companies, then the City would receive a credit toward its obligation to pay Omni Performance-Based Grants equal to $500,000. In the event that any amounts reported as incurred are subsequently determined to have not actually been expended, the City, at the City's election, may collect any Program Grant overpayment(s) either through a "true-up" of the City credit set forth herein or through reimbursement from Omni. 5.2.3. Application of City Credit. The sum of any City credit calculated in accordance with Sections 5.2.1 and 5.2.2, if any, shall be applied toward the City's obligation to pay Omni a Performance-Based Grant beginning with the first quarter following the Completion Date. For example, suppose that the Base Page 21 . •_ - ., Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. Amount of the Performance-Based Grant for that first quarter is $200,000 and the aggregate amount of the City's credit is $150,000. In that case, the amount of the Performance-Based Grant that the City would be required to pay Omni in that quarter would be $50,000 ($200,000 Base Amount minus $150,000 aggregate City credit), and the $150,000 credit shall be retained by the City as Excluded Hotel Revenue. 5.2.4. Aoolication Toward City Sources Canoed Amount. Any credit retained by the City as Excluded Hotel Revenue pursuant to this Section 5.2 shall first be deemed attributable to the City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue received during the previous quarter and will be added for purposes of calculating the City Sources Capped Amount. In other words, using the example in Section 5.2.3, if the Base Amount of the Performance-Based Grant in the first quarter following the Completion Date is $200,000, $100,000 of which is attributable to the City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue and $100,000 of which is attributable to the State Hotel Occupancy Tax Revenue and the State Hotel Sales Tax Revenue, the $150,000 aggregate City credit shall first be deemed attributable to the City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue, meaning that $100,000 of the $150,000 credit would be applied toward the City Sources Capped Amount. If the aggregate City credit is less than the City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue received during the previous quarter, then all of the City's aggregate credit would be applied toward the City Sources Capped Amount. 5.2.5. Carry Over. If the City's aggregate credit under this Section 5.2 exceeds the Base Amount in any calendar quarter, then (i) the Performance-Based Grant payable in that quarter shall be $0 and any remaining balance of such credit shall be applied toward the City's obligation to make Performance-Based Grant(s) in the following quarter(s), and (ii) the City shall nevertheless be deemed to have made a Performance-Based Grant in that quarter and such quarter shall count toward calculating the remaining number of quarters in which a Performance-Based Grant is owed. 5.3. Effect of Failure to Meet Annual Comnutments. If in the previous calendar year Omni failed to meet any of its commitments to employ a minimum number of individuals, Fort Worth Residents and Central City Residents in the Hotel and the Hotel Garage and to make minimum Supply and Service Expenditures with Fort Worth Companies and Fort Worth Certified M/WBE Companies, the following provisions shall apply: Page 22 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. 5.3.1. Failure to Meet Overall Employment Commitment. If during the Annual Reporting Month of a calendar year fewer than two hundred fifty(250) Full-time Equivalent Jobs were provided and filled in the Hotel and the Hotel Garage, as required by Section 4.6.1 of this Agreement (the "Overall Employment Commitment"), then in accordance with and subject to Section 5.3.7, Omni shall pay the City an amount equal to $4,500 for each Full-time Equivalent Job by which the Overall Employment Commitment was missed; provided, however, that the amount owed by Omni to the City pursuant to this Section 5.3.1 shall be reduced by (i) all of the amount owed by Omni to the City pursuant to Section 5.3.2 below and (ii)one-half(1/2) of the amount owed by Omni to the City pursuant to Section 5.3.3 below. 5.3.2. Failure to Meet Fort Worth Resident Employment Commitment. If during the Annual Reporting Month of a calendar year fewer than one hundred twenty-five (125) Full-time Equivalent Jobs in the Hotel and the Hotel Garage were held by Fort Worth Residents, as required by Section 4.6.2 of this Agreement (the "Fort Worth Employment Commitment"), then in accordance with and subject to Section 5.3.7, Omni shall pay the City an amount equal to $4,500 for each Full-time Equivalent Job by which the Fort Worth Employment Commitment was missed; provided, however, that the amount owed by Omni to the City pursuant to this Section 5.3.2 shall be reduced by one-half (1/2) of the amount owed by Omni to the City pursuant to Section 5.3.3 below. 5.3.3. Failure to Meet Central City Resident Employment Commitment. If during the Annual Reporting Month of a calendar year fewer than sixty-two (62) Full-time Equivalent Jobs in the Hotel and the Hotel Garage were held by Central City Residents, as required by Section 4.6.3 of this Agreement (the"Central City Employment Commitment"), then Omni shall pay the City an amount equal to $9,000 for each Full-time Equivalent Job by which the Central City Employment Commitment was missed. 5.3.4. Failure to Meet Fort Worth Company Supply and Service Expenditure Commitment. If in any calendar year less than $100,000 in Supply and Service Expenditures were made with Fort Worth Companies, as required by Section 4.7.1 of this Agreement (the "Fort Worth Supply and Service Page 23 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. Commitment"), then, subject to Omni's right to cure in accordance with the sentence below, the amount of the Performance-Based Grant(s) payable in the following quarter(s) shall be reduced by an amount equal to the product of the number of dollars by which the Fort Worth Supply and Service Commitment was missed times three (3). Notwithstanding the foregoing, if Omni causes to be spent an amount equal to the number of dollars by which the Fort Worth Supply and Service Commitment was missed by June 1 of the following year, the amount of the Performance- Based Grant(s) payable in the following quarter(s) will not be subject to reduction pursuant to this Section 5.3.4, with the understanding that no such expenditures shall count toward the Fort Worth Supply and Service Commitment for that calendar year. Any amount owed by Omni to the City pursuant to this Section 5.3.4 shall be reduced by the amount owed by Omni to the City pursuant to Section 5.3.5 below. 5.3.5. Failure to Meet Fort Worth Certified M/WBE Company Supply and Service Expenditure Commitment. If in any calendar year less than $50,000 in Supply and Service Expenditures were made with Fort Worth Certified M/WBE Companies, as required by Section 4.7.2 of this Agreement (the"M/WBE Supply and Service Commitment"), then, subject to Omni's right to cure in accordance with the sentence below, the amount of the Performance- Based Grant(s) payable in the following quarter(s) shall be reduced by an amount equal to the product of the number of dollars by which the M/WBE Supply and Service Commitment was missed times three (3). Notwithstanding the foregoing, if Omni causes to be spent an amount equal to the number of dollars by which the M/WBE Supply and Service Commitment was missed by June 1 of the following year, the amount of the Performance-Based Grant(s) payable in the following quarter(s) will not be subject to reduction pursuant to this Section 5.3.5, with the understanding that no such expenditures shall count toward the M/WBE Supply and Service Commitment for that calendar year. 5.3.6. No Offsets. A deficiency in attainment of any of the commitments set forth in Sections 4.6.1, 4.6.2, 4.6.31, 4.7.1 and/or 4.7.2 may not be offset by exceeding other such commitments. 5.3.7. Use of Omni's Payments for Failure to Meet Employment Commitments. All payments by Omni to the City for any failure of Omni to meet the Overall Employment Commitment, the Fort Worth Employment Commitment and the Central City Employment Commitment, as provided Page 24 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. in Sections 5.3.1, 5.3.2 and 5.3.3, must be paid in full within ninety (90) calendar days following the date that the Employment Report is due. If all such payments have not been received by the City by such time, the City may suspend payment of any Program Grants due hereunder, without interest, until all such amounts are paid. The City agrees that all such sums shall be deposited into a segregated City account or sub-account and used only for the Job Training Program outlined in Section 4.18. Following the tenth anniversary of the Completion Date, any remaining funds for the Job Training Program will be retained by the City for any legally permissible use. 5.4. Deadline for Payment of Performance-Based Grant: Nature of Funds. Subject to Section 5.3.7, each quarterly Performance-Based Grant owed pursuant to and in accordance with this Section 5 will be paid by the City to Omni on or before the forty-fifth (45th) calendar day following the end of the previous calendar quarter. It is understood and agreed that all Performance-Based Grants paid pursuant to this Agreement shall come from currently available general revenues of the City and not directly from any specific taxes or tax revenues, including, but not limited to, City Hotel Occupancy Tax Revenue, City Hotel Sales Tax Revenue, City Hotel Property Tax Revenue, Omni Residential Unit Property Tax Revenue, State Hotel Occupancy Tax Revenue or State Hotel Sales Tax Revenue. 6. LEASE-BASED GRANT. Subject to all other terms and conditions of this Agreement, in each year in which rent is paid under the Ground Lease, the City will pay Omni a Program Grant or Grants equal to (i) the amount of the annual rental paid in the same calendar year to the City by Omni pursuant to Section 3.2 of the Ground Lease less Ten Thousand Dollars ($10,000) and (ii) the amount of any taxes and assessments levied by the City against the Leased Premises (defined in the Ground Lease) which are not subject to abatement under the Tax Abatement Agreement and which are paid by Omni in accordance with Section 5.2 of the Ground Lease (each a "Lease-Based Grant"). Each respective Lease-Based Grant will be paid by the City to Omni within five (5) business days following receipt of all rent then due and payable to the City under the Ground Lease (in the case of a Lease-Based Grant under clause (i) above), or within forty-five (45) calendar days following the end of the calendar quarter in which any such taxes and assessments payable to the City under Section 5.2 of the Ground Lease were received by the City(in the case of a Lease-Based Grant under clause (ii) above). It is understood and agreed that all Lease-Based Grants paid pursuant to this Agreement shall come from currently available general revenues of the City and not directly from any specific taxes or tax revenues of the City. The City shall have no right to withhold a Lease-Based Grant on account of a non-monetary default by Omni under the Ground Lease. Page 25 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. i 7. GRANTS FOR COMPLETION OF THE PROJECT. Subject to all other terms and conditions of this Agreement, the City will pay Omni Program Grants in accordance with this Section 7 that are based on construction progress of the Project and Substantial Completion of the Project (each a "Completion Grant"). The Completion Grants shall account for the City's full and complete reimbursement to Omni for a portion of the cost of the Hotel Garage and the cost of making the Hotel Property "pad ready". It is understood and agreed that each Completion Grant shall come from currently available general revenues of the City and not directly from any specific taxes or tax revenues of the City. 7.1. Completion Grants Based on Construction Progress. Within ten (10) business days following the City's receipt from Omni of the monthly construction spending reports required by Section 4.11.2 of this Agreement, the City will pay Omni a Completion Grant equal to fifty percent (50%)of the Incremental Construction Expenditures reported for that month until such time as the City has paid Omni aggregate Completion Grants equal to $6,300,000. 7.2. Completion Grant Based on Substantial Completion of Project. Within thirty (30) calendar days following the Completion Date, the City will pay Omni a Completion Grant of$2,300,000. 8. HOTEL PROPERTY SALE-BASED GRANT. Subject to all other terms and conditions of this Agreement, it pursuant to Article IX of the Ground Lease, Omni exercises its option to purchase the Hotel Property from the City or the City exercises its option to put the Hotel Property to Omni, the City will pay Omni a Program Grant in an amount equal to the purchase price of the Hotel Property received by the City less One Million Dollars ($1,000,000) (the "Hotel Property Sale-Based Grant"). The Hotel Property Sale-Based Grant will be paid by the City to Omni within five (5) business days following receipt by the City of all proceeds from the sale of the Hotel Property. It is understood and agreed that each Completion Grant shall come from currently available general revenues of the City and not directly from any specific taxes or tax revenues of the City. 9. STATE SUBSTITUTE GRANTS. 9.1. Calculation of State Substitute Grants. If at any time between the Completion Date and the tenth anniversary Page 26 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. thereof the City fails to receive State Hotel Occupancy Tax Revenue based on a rate of six percent (6%) and/or State Hotel Sales Tax Revenue based on a rate of six and one-quarter percent (6.25%), thereby causing a deficiency in the amount of any quarterly Performance-Based Grant payable by the City, the City agrees that, subject to Section 9.5, an amount equal to twenty-five percent (25%) of the difference between(i) the full amount of the State Hotel Occupancy Tax Revenue and the State Hotel Sales Tax Revenue that would have been received in the previous quarter by operation of Section 351.102 of the Texas Tax Code and (ii) the amount, if any, of the State Hotel Occupancy Tax Revenue and the State Hotel Sales Tax Revenue that the City actually received in that quarter by operation of Section 351.102 of the Texas Tax Code will be carried forward as a continuing obligation of the City for payment following payment of the fortieth (40th) quarterly Performance-Based Grant. The aggregate amount of such sums, plus any interest earned and accrued thereon in accordance with Section 9.3, shall be defined as the "Guaranteed State Amount". Upon payment of any Performance-Based Grant, the City will notify Omni in writing of the then-current balance, if any, of the Guaranteed State Amount. Beginning in the calendar quarter following payment of the fortieth (40th) quarterly Performance-Based Grant and in accordance with this Section 9, the City will pay Omni a Program Grant or quarterly Program Grants, as necessary, until Omni has received the Guaranteed State Amount (the "State Substitute Grants"). The amount of each State Substitute Grant payable by the City will be based on an available universe of funds for the year in which a State Substitute Grant is due, as provided in Section 9.2. 9.2. Basis of Calculation. The amount of funds available each quarter for any State Substitute Grant shall equal the sum of the following revenues received by the City in the previous calendar quarter: (i) 100% of the City_ Hotel Sales Tax Revenue,plus (ii) for any State Substitute Grants payable in a calendar quarter following payment of the sixtieth (60th) quarterly Performance-Based Grant, 100% of the City Hotel Property Tax Revenue, plus (iii) for any State Substitute Grants payable in a calendar quarter following payment of the seventy-second (72nd) quarterly Performance-Based Grant, 100%of the City Hotel Occupancy Tax Revenue. The City Sources Capped Amount does not apply to, and shall not serve to limit the amount of State Substitute Grants. Notwithstanding anything to the contrary, the City may elect to pay any portion or all of the then-current balance Guaranteed State Amount prior to the date of payment of the fortieth (40th) quarterly Performance-Based Grant from any sources of funds legally available to the City. 9.3. Interest on Guaranteed State Amount. Subject to Section 12.4.4.1, beginning on the date that the first Performance-Based Grant is paid to Omni, the then-current balance of the Guaranteed State Amount, if any, shall bear interest calculated at a fixed rate Page 27 Amended and Restated Economic Development Program Agreement 7 �„ between City of Fort Worth and Omni Fort Worth Partnership,LP. v ice., ✓ :hath . . equal to fourteen percent (14%) per annum, compounded annually as of December 31, which rate has been negotiated and agreed to by the parties after giving consideration to Omni's investment analysis with regard to the Project. 9.4. Deadline for Payment of State Substitute Grants: Nature of Funds. Each State Substitute Grant will be paid by the City to Omni on or before the forty-fifth (45th) calendar day following the end of the previous calendar quarter. It is understood and agreed that all State Substitute Grants paid pursuant to this Agreement shall come from currently available general revenues of the City and not directly from any specific taxes or tax revenues of the City, including, but not limited to, City Hotel Occupancy Tax Revenue, City Hotel Sales Tax Revenue, City Hotel Property Tax Revenue or Omni Residential Unit Property Tax Revenue. 9.5. Credit Asainst Guaranteed State Amount. Notwithstanding anything to the contrary contained elsewhere in this Section 9, if any calendar quarter during or between the quarter in which the Completion Date occurs and payment by the City of the fortieth (40th) quarterly Performance-Based Grant there is a change in the Texas Tax Code or other applicable statute so that (i) the rate upon which the State Hotel Occupancy Tax Revenue is based is greater than six percent (6%) and/or the rate upon which the State Hotel Sales Tax Revenue is based is greater than six and one-quarter percent (6.250/o), and/or (ii) the rate upon which the City Hotel Occupancy Tax Revenue is based is greater than nine percent (9%) and/or the rate upon which the City Hotel Sales Tax Revenue is based is greater than one percent (I%), then any such increased amount shall be credited against the Guaranteed State Amount, if any, on a dollar-for-dollar basis, and the Guaranteed State Amount shall be recalculated in accordance therewith. This credit shall be applied on the date as of which a Program Grant including such increased amounts is paid to Omni, subject to any reduction or suspension imposed in accordance with this Agreement. 10. CITY SUBSTITUTE GRANTS. 10.1. Calculation of City Substitute Grants. If at any time between the Completion Date and the eighteenth (18th) anniversary thereof a change in applicable law after the Effective Date causes the City Hotel Occupancy Tax Revenue to be based on a rate that is less than nine percent (9%)of the taxable Hotel room revenue and/or if at any time between the Completion Date and the tenth (10th) anniversary thereof the City Hotel Sales Tax Revenue to be based on a rate that is less than one percent (1%), thereby causing a deficiency in the amount of any quarterly Performance-Based Grant that Page 28 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. would otherwise have been payable by the City absent such a change in law, the City agrees that, subject to Section 10.5, an amount equal to the difference between (i) the full amount of the City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue that would have been received in the previous quarter by operation of Section 351.102 of the Texas Tax Code and Sections 321.101(a) and 321.103 of the Texas Tax Code, respectively, but for a change in applicable law after the Effective Date and (ii) the amount of the City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue that the City actually received in that calendar year by operation of Section 351.102 of the Texas Tax Code and Sections 321.101(a) and 321.103 of the Texas Tax Code, respectively, will be carried forward as a continuing obligation of the City for payment following payment of the fortieth (40th) quarterly Performance-Based Grant (provided, however, that such obligation shall not apply once the City Sources Capped Amount has been reached). The aggregate amount of such sums, plus any interest earned and accrued thereon in accordance with Section 10.3, shall be defined as the "Guaranteed City Amount". Upon payment of any Performance-Based Grant, the City will notify Omni in writing of the then-current balance, if any, of the Guaranteed City Amount. Beginning in the later of the calendar quarter following payment of the fortieth (40th) quarterly Performance- Based Grant or, if applicable, the calendar quarter following receipt by Omni of the Guaranteed State Amount through the payment of State Substitute Grants, and otherwise and in accordance with this Section 10, the City will pay Omni a Program Grant or quarterly Program Grants, as necessary, until Omni has received the Guaranteed City Amount (the "City Substitute Grants"). The amount of each City Substitute Grant payable by the City will be based on an available universe of funds for the year in which a City Substitute Grant is due, as provided in Section 10.2. 10.2. Basis of Calculation. The amount of funds available each quarter for any City Substitute Grant shall equal the sum of the following revenues received by the City in the previous calendar quarter: (i) 100% of the City Hotel Sales Tax Revenue plus (ii)for any City Substitute Grants payable in a calendar quarter following payment of the sixtieth (60th) quarterly Performance-Based Grant, 100% of the City Hotel Property Tax Revenue, plus (iii) for any City Substitute Grants payable in a calendar quarter following payment of the seventy-second (72nd) quarterly Performance-Based Grant, 100%of the City Hotel Occupancy Tax Revenue. The City may elect to pay any portion or all of the then-current balance Guaranteed City Amount prior to the date of payment of the fortieth (40th) quarterly Performance-Based Grant from any sources of funds legally available to the City. Notwithstanding anything to the contrary, once the City Sources Capped Amount has been reached, the City shall no longer be obligated to pay any City Substitute Grants (although the City's obligation to pay interest on the unpaid Guaranteed City Amount accrued up to the date that the City Sources Capped Amount is reached, as provided by Section 10.3, will continue in effect, with the Page 29 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. understanding that the City shall only pay such interest from the same universe of funds in which the City Substitute Grants were payable). 10.3. Interest on Guaranteed City Amount. Subject to Section 12.4.4.1, beginning on the date that the first Performance-Based Grant is paid to Omni, the then-current balance of the Guaranteed City Amount, if any, shall bear interest calculated at a fixed rate equal to fourteen percent (14%) per annum, compounded annually as of December 31, which rate has been negotiated and agreed to by the parties after giving consideration to Omni's investment analysis with regard to the Project. 10.4. Deadline for Payment of City Substitute Grants; Nature of Funds. Each City Substitute Grant will be paid by the City to Omni on or before the forty-fifth (45th) calendar day following the end of the previous calendar quarter. It is understood and agreed that all City Substitute Grants paid pursuant to this Agreement shall come from currently available general revenues of the City and not directly from any specific taxes or tax revenues of the City, including, but not limited to, City Hotel Occupancy Tax Revenue, City Hotel Sales Tax Revenue or any personal property tax revenues of the City. 10.5. Credit Azainst Guaranteed City Amount. Notwithstanding anything to the contrary contained elsewhere in this Section 10, if any calendar quarter during or between the quarter in which the Completion Date occurs and payment by the City of the fortieth (40th) quarterly Performance-Based Grant there is a change in the Texas Tax Code or other applicable statute so that (i) the rate upon which the City Hotel Occupancy Tax Revenue is based is greater than nine percent (9%) and/or the rate upon which the City Hotel Sales Tax Revenue is based is greater than one percent (M), and/or (ii) the rate upon which the State Hotel Occupancy Tax Revenue is based is greater than six percent (6%) and/or the rate upon which the State Hotel Sales Tax Revenue is based is greater than six and one-quarter percent (6.25%), then any such increased amount shall be credited against the Guaranteed City Amount, if any, on a dollar-for-dollar basis, and the Guaranteed City Amount shall be recalculated in accordance therewith; provided, however, that if at that time there is a positive balance on both the Guaranteed State Amount and the Guaranteed City Amount, the credit shall first be applied to the Guaranteed State Amount and the remainder, if any, shall then be applied to the Guaranteed City Amount. This credit shall be applied on the date as of which a Program Grant including such increased amounts is paid to Omni, subject to any reduction or suspension imposed in accordance with this Agreement. Page 30 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. 11. RETENTION BY THE CITY OF EXCLUDED HOTEL REVENUE. Omni understands and agrees that any Excluded Hotel Revenue received by the City and retained in accordance with this Agreement may be used by the City for any lawful purpose that the City deems necessary in the carrying out of its business as a home rule municipality and will not serve as the basis for calculating the amount of any future Program Grant to Omni. 12. DEFAULT, TERMINATION. SUSPENSION OF OBLIGATIONS AND FAILURE BY OMNI TO MEET VARIOUS COMMITMENTS. 12.1. Failure to Complete Hotel and Hotel Garage. Subject to Section 4.4, Omni shall be in default under this Agreement if by the Completion Deadline(i) at least $100,000,000 in Hard Construction Costs for the Project have not been expended or incurred or (ii) the Project is not Substantially Complete. In such an event,the City shall notify Omni in writing of the existence of such default. If Omni has not cured such default within ninety (90) calendar days following receipt of such notice,the City shall have the right to terminate this Agreement by notifying Omni in writing. 12.2. Termination of Tax Abatement Agreement and Room Block Amement. Upon any lawful termination of the Tax Abatement Agreement or the Room Block Agreement on account of an uncured breach or default by Omni in accordance with the respective terms and conditions of those agreements, the City shall have the right to terminate this Agreement by providing Omni at least ninety (90) calendar days' advance written notice. 12.3. Failure to Pay City Taxes. 12.3.1. After payment of the twentieth (20th) quarterly Performance-Based Grant, an event of default shall occur under this Agreement if any real property taxes owed to the City pursuant to Section 302.001(c) of the Texas Tax Code and attributable to any Residential Units owned by Omni or an Omni Affiliate remain unpaid or the proper legal procedures for protest and/or contest of any such taxes are not followed. 12.3.2. In addition to Section 12.3.1, after payment of the fortieth (40th) quarterly Performance-Based Grant, an event of default shall occur under this Agreement if any municipal sales taxes attributable to the Hotel or the Hotel Garage and owed by Omni to the City pursuant to Sections 321.101(a) and 321.103 of the Texas Tax Code become delinquent and- Page ndPage 31 s Amended and Restated Economic Development Program Agreement - ? between City of Fort Worth and Omni Fort Worth Partnership,LP. ? Omni does not either pay such taxes or properly follow the legal procedures for protest and/or contest of any such taxes. 12.3.3. In addition to Sections 12.3.1 and 12.3.2, after payment of the sixtieth (60th) quarterly Performance-Based Grant, an event of default shall occur under this Agreement if any (i) real property taxes attributable to the Hotel or the Hotel Garage or (ii) any personal property taxes attributable to Tangible Personal Property owned or leased by Omni and located in the Hotel or the Hotel Garage become delinquent and Omni does not either pay such taxes or properly follow the legal procedures for protest and/or contest of any such taxes. 12.3.4. In addition to Sections 12.3.1, 12.3.2 and 12.3.3, after payment of the seventy-second (72nd) quarterly Performance-Based Grant, an event of default shall occur under this Agreement if any hotel occupancy taxes attributable to the Hotel and owed to the City pursuant to Chapter 351 of the Texas Tax Code and Chapter 32 of the City Code become delinquent and Omni does not either pay such taxes or properly follow the legal procedures for protest and/or contest of any such taxes. 12.3.5. Upon the occurrence of any default outlined in this Section 12.3, the City shall notify Omni in writing and Omni shall have (i) thirty (30) calendar days to cure such default or (ii) if Omni has diligently pursued cure of the default but such default is not reasonably curable within such time, then such amount of time that the City reasonably agrees is necessary to cure such default. If the default has not been fully cured by such time, the City, as its sole and exclusive remedy, shall have the right to terminate this Agreement immediately by providing written notice to Omni and shall have all other rights and remedies that may be available to it under the law with respect to the collection of any such delinquent taxes. 12.4. Failure to Comply with Minimum Hotel Operating Standards. 12.4.1. Initial Notification by City. If at any time during the Term of this Agreement the City believes that the Hotel has ceased to be operated in accordance with all Minimum Hotel Operating Standards, as required by Section 4.8, the City shall provide written notice to Omni that specifically sets forth the basis of the City's opinion. If Omni agrees with the City's opinion, Omni shall have one (1) calendar year from the date of the City's notice to bring the Hotel into operating compliance with all Minimum Hotel Operating Standards, during which time the City will continue to pay all Program Grants in accordance with this Agreement. If Omni disagrees with the City's opinion or fails within ten (10) business days of receipt to respond to the City's notice, the City may submit the matter to arbitration for resolution in accordance with Section 12.4.3. Page 32 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. 12.4.2. Resumption of Minimum Hotel Operating Standards. Once Omni determines that the Hotel has resumed operating in accordance with all Minimum Hotel Operating Standards, Omni will notify the City in writing. If the City notifies Omni in writing of its agreement with Omni's determination within ten (10) business days, the matter will be resolved and the City will continue to pay all Program Grants in accordance with this Agreement. If the City disagrees with Omni's determination or fails to respond to Omni's determination within ten (10) business days following receipt of Omni's notice, Omni may submit the matter to arbitration for resolution in accordance with Section 12.4.3. If the arbitrator finds that the Hotel has resumed operating in accordance with all Minimum Hotel Operating Standards, the matter will be resolved and the City will continue to pay all Program Grants in accordance with this Agreement. If(i) the arbitrator finds that the Hotel has not resumed operating in accordance with all Minimum Hotel Operating Standards or (ii) Omni fails within one (1) calendar year following the City's initial notice to notify the City in writing that Omni believes that the Hotel has resumed operating in accordance with all Minimum Hotel Operating Standards, the City's obligation to pay any Program Grants to Omni shall cease in accordance with Section 12.4.4. 12.4.3.Arbitration. Any dispute between the City and Omni as to whether the Hotel is operating in accordance with all Minimum Hotel Operating Standards shall be submitted to binding arbitration in accordance with Section 12.9 hereof. 12.4.4. Cessation or Pro-rated Payment of Pro-aram Grants. 12.4.4.1. Failure to Comply with Minimum Hotel Operating Standards for Full Ouarter. If the Hotel is not operated in accordance with all Minimum Hotel Operating Standards, as determined by the arbitrator in accordance with Section 12.4.3, for any full calendar quarter,then Omni shall waive, and the City will not be required to pay, any Program Grant that would otherwise be payable in the following quarter. In such an event, (i) for any quarter in which a Performance-Based Grant is waived, the City shall nevertheless be deemed to have made a Performance-Based Grant in that quarter and such quarter shall count toward calculating the remaining number of quarters in which a Performance-Based Grant is owed; (ii) no sums shall be added to the balance of the Guaranteed State Amount and/or the Guaranteed City Amount that are attributable to Page 33 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. the calendar quarter in which the Hotel was not operated in accordance with all Minimum Hotel Operating Standards; (iii) that portion of any Program Grant attributable to the City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue and that would otherwise have been payable to Omni will be added for purposes of calculating the City Sources Capped Amount; (iv) for any quarter in which a State Substitute Grant and/or City Substitute Grant is waived, the amount of the State Substitute Grant that would otherwise have been owed shall be deducted from the Guaranteed State Amount for purposes of calculating the amount of fixture State Substitute Grants and the amount of the City Substitute Grant that would otherwise have been owed shall be deducted from the Guaranteed City Amount for purposes of calculating the amount of future City Substitute Grants, if any; and (v) no interest on the balance of any Guaranteed State Amount and/or Guaranteed City Amount shall be earned or accrued for the quarter in which the Hotel was not operated in accordance with all Minimum Hotel Operating Standards, in which case any interest earned for the calendar year in which such quarter occurred shall be prorated in accordance with the number of calendar days in that quarter. 12.4.4.2. Failure to C:Omnly with Minimum Hotel Oueratim Standards for Portion of a Ouarter. If the Hotel is not operated in accordance with all Minimum Hotel Operating Standards, as determined by the arbitrator in accordance with Section 12.4.3, for a portion of any calendar quarter, then any Program Grant that would be payable in the following calendar quarter and any sums that would otherwise be added to the Guaranteed State Amount and/or the Guaranteed City Amount, as well as any interest that would otherwise have been earned thereon, shall be reduced by multiplying such amount by a fraction, to be expressed as a percentage, where (i) the numerator is the number of days in that quarter in which the Hotel was not operated in accordance with all Minimum Hotel Operating Standards, and (ii) the denominator is the number of days in that quarter. In addition, an amount equal to that portion of any Program Grant attributable to the City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue and that would otherwise have been payable in full to Omni multiplied by a fraction where (i) the numerator is the number of days in that quarter in which the Hotel was operated in accordance with all Minimum Hotel Operating Standards and (ii) the denominator is the number of days in that quarter will be added for purposes of calculating the City Sources Capped Amount. Page 34 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. 12.5. Failure to Maintain Competitive Name Brand. 12.5.1. For Full Quarter. If the Hotel is not operated and marketed under a First Tier Flag brand name, as required by Section 4.9, for any full calendar quarter, then Omni shall waive, and the City will not be required to pay, any Program Grant that would otherwise be payable in the following quarter. In such an event, (i) for any quarter in which a Performance-Based Grant is waived, the City shall nevertheless be deemed to have made a Performance-Based Grant in that quarter and such quarter shall count toward calculating the remaining number of quarters in which a Performance-Based Grant is owed; (ii) no sums shall be added to the balance of the Guaranteed State Amount and/or the Guaranteed City Amount that are attributable to the calendar quarter in which the Hotel was not operated and marketed under a First Tier Flag brand name; (iii) that portion of any Program Grant attributable to the City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue and that would otherwise have been payable to Omni will be added for purposes of calculating the City Sources Capped Amount; (iv) for any quarter in which a State Substitute Grant and/or City Substitute Grant is waived, the amount of the State Substitute Grant that would otherwise have been owed shall be deducted from the Guaranteed State Amount for purposes of calculating the amount of future State Substitute Grants and the amount of the City Substitute Grant that would otherwise have been owed shall be deducted from the Guaranteed City Amount for purposes of calculating the amount of future City Substitute Grants, if any; and (v) no interest on the balance of any Guaranteed State Amount and/or Guaranteed City Amount shall be earned or accrued for the quarter in which the Hotel was not operated and marketed under a First Tier Flag brand name, in which case any interest earned for the calendar year in which such quarter occurred shall be prorated in accordance with the number of calendar days in that quarter. 12.5.2. For a Portion of a Quarter. If the Hotel is not operated and marketed under a First Tier Flag brand name, as required by Section 4.9, for a portion of any calendar quarter, then any Program Grant that would be payable in the following quarter and any sums that would otherwise be added to the Guaranteed State Amount and/or the Guaranteed City Amount, as well as any interest that would otherwise have been earned thereon, shall be reduced by multiplying such amount by a fraction, to be expressed as a percentage, where (i) the numerator is the number of days in that quarter in which the Hotel was not operated and marketed under a First Tier Flag brand name, Page 35 ' Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. and (ii)the denominator is the number of days in that quarter. In addition, an amount equal to that portion of any Program Grant attributable to the City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue and that would otherwise have been payable in full to Omni multiplied by a fraction where (i) the numerator is the number of days in that quarter in which the Hotel was operated and marketed under a First Tier Flag brand name and (ii) the denominator is the number of days in that quarter will be added for purposes of calculating the City Sources Capped Amount. 12.6. Failure to Meet Construction Cost Spendinz Employment and/or Supply and Service Spending Commitments. The failure to meet any Hard Construction Cost spending commitments, as specifically set forth in Sections 4.5.1 and 4.5.2, or to meet any employment and/or Supply and Service Expenditure commitments in any given year, as specifically set forth in Sections 4.6.1, 4.6.2, 4.6.3, 4.7.1 and 4.7.2, shall not constitute a default hereunder or provide the City with the right to terminate this Agreement,but,rather, shall only serve to reduce the amount of the Performance- Based Program Grants, State Substitute Grants and City Substitute Grants that the City is required to pay pursuant to and in accordance with this Agreement. 12.7. Failure to Submit Reports or Make Data Available to theCity. If Omni fails to submit all or any reports or make data available to the City, as the case may be and as required by Sections 4.11.3, 4.11.4, 4.11.5 and/or 4.11.6, the City will notify Omni in writing and the City's obligation to pay any future Performance-Based Grant shall be suspended until Omni has provided such report(s)or made such data available for review by the City. 12.8. Other Breaches. In the event that Omni breaches this Agreement and such breach is not covered by Sections 12.1, 12.3, 12.4, 12.5, 12.6 or 12.7, the City shall notify Omni in writing, which notice shall specify the nature of the breach, and Omni shall have thirty (30) calendar days to cure the breach, or if such breach is not reasonably curable within thirty (30) calendar days, such additional time as may be reasonably necessary to cure the breach provided that Omni is diligently pursuing cure. If the breach has not been fully cured within such time, the City shall have all rights and remedies available under the law or in equity other than termination of this Agreement, including, but not limited to, the right to demand specific performance to cure the breach and to collect damages plus reasonably attorneys' fees incurred in the enforcement of this Agreement. Page 36 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. 12.9. Arbitration. If the parties are in disagreement regarding any provision of this Agreement, the parties shall submit disputes to mandatory arbitration in accordance with the provisions of this Section 12.9. Each of the City and Omni waives the right to commence an action in connection with this Agreement in any court and expressly agrees to be bound by the decision of the arbitrator determined in this Section 12.9; provided, however, the waiver in this Section 12.9 will not prevent the City or Omni from commencing an action in any court for the sole purposes of enforcing the obligation of the other party to submit to binding arbitration or the enforcement of an award granted by arbitration herein. Any dispute between the City and Omni as to the interpretation of any provision of this Agreement or the rights and obligations of any party hereunder shall be resolved through binding arbitration as hereinafter provided in Fort Worth, Texas. Notwithstanding the foregoing, prior to submitting any dispute hereunder to arbitration, the City and Omni shall first attempt in good faith, for thirty (30) days after the first notice given under this Agreement regarding such dispute, to resolve any such dispute promptly by negotiation between executives of each party who have authority to settle the dispute, which shall include an in person meeting between such executives in Fort Worth, Texas. 12.9.1 Selection of Arbitrator. If arbitration is required to resolve a dispute between the City and Omni, the City and Omni shall agree upon one (1) arbitrator to resolve the dispute. The arbitrator must be a neutral party having at least five (5) years experience in commercial real estate in general and hotel buildings in particular in the Fort Worth, Texas area and must be mutually acceptable to both parties. 12.9.2 Rules of Arbitrator. The arbitrator selected pursuant to Section 12.9.1 above will establish the rules for proceeding with the arbitration of the dispute, which will be binding upon all parties to the arbitration proceeding. The arbitrator may use the rules of the American Arbitration Association for commercial arbitration but is encouraged to adopt the rules the arbitrator deems appropriate to accomplish the arbitration in the quickest and least expensive manner possible. Accordingly, the arbitrator may (1) dispense with any formal rules of evidence and allow hearsay testimony so as to limit the number of witnesses required, (2)minimize discovery procedures as the arbitrator deems appropriate, and (3) limit the time for presentation of any party's case as well as the amount of information or number of witnesses to be presented in connection with any hearing. In any event, the arbitrator (A) shall permit each side no more than two (2) depositions Page 37 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. (including any deposition of experts), which depositions may not exceed four (4) hours each, one set of 10 interrogatories (inclusive of sub-parts) and one set of five (5) document requests (inclusive of sub-parts), (B) shall not permit any requests for admissions, (C) shall limit the hearing, if any, to two (2) days, and (D) shall render his or her decision within sixty (60)days of the filing of the arbitration. 12.9.3 Arbitration Award. The arbitrator will have the exclusive authority to determine and award costs of arbitration and the costs incurred by any party for its attorneys, advisors and consultants. 12.9.4 Binding Nature. Any award made by the arbitrator shall be binding on the City, Omni and all parties to the arbitration and shall be enforceable to the fullest extent of the law. 12.9.5 Applicable Law. In reaching any determination or award, the arbitrator will apply the laws of the state in which the Hotel is located. Except as permitted under Section 12.9.3 above, the arbitrator's award will be limited to actual damages and will not include consequential, special, punitive or exemplary damages. Nothing contained in this Agreement will be deemed to give the arbitrator any authority, power or right to alter, change, amend, modify, add to or subtract from any of the provisions of this Agreement. All privileges under state and federal law, including, without limitation, attorney-client, work product and party communication privileges, shall be preserved and protected. All experts engaged by a party must be disclosed to the other party within fourteen (14) days after the date of notice and demand for arbitration is given 13. ENTERPRISE PROJECT DESIGNATION. The City has nominated the Project as an enterprise project subject and pursuant to and in accordance with the Texas Enterprise Zone Act, Chapter 2303, Subchapter F of the Texas Government Code. Omni understands and agrees that the City does not warrant and cannot guarantee such designation by the State of Texas. Page 38 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. 14. WAIVER OF CITY FEES. Omni will be required to apply for and receive all permits and other licenses and certificates required by the City with respect to the Project. However, unless otherwise provided herein or prohibited by applicable law, ordinance, rule or regulation, the City hereby agrees to waive the following fees related to the Project that would otherwise be charged by the City: (i) all building permit, plan review, inspection, and re-inspection fees related to any and all aspects of the Project that would otherwise by charged by the City, including fees for inspections by City personnel performed during or outside of normal business hours, whether for review of original plans, or changes, additions, or revisions thereto, and specifically including, but not limited to, fees associated with all electrical, mechanical, HVAC, and plumbing systems, building signage, and swimming pool or other systems; and (ii) temporary and permanent encroachment fees. Notwithstanding anything to the contrary herein, in no event will the City waive or reimburse Omni for (i) any water or sewer impact fees or(ii) fees of any nature assessed by third parties, such as third party inspection fees. Notwithstanding anything to the contrary set forth herein, the City and Omni agree that the specific fees to be waived under this Agreement shall subsequently be established conclusively in writing by both the City and Omni after plans and specifications for the Project have been agreed to and before Omni applies for a permit from the City to initiate construction. 15. COUNTY TAX ABATEMENT. The City will use its best efforts to facilitate communications with Tarrant County with regard to an ad valorem tax abatement from Tarrant County. Omni understands and agrees that the City does not warrant and cannot guarantee that any such tax abatement will be effectuated. 16. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Omni shall operate as an independent contractor in each and every respect hereunder and not as an agent, representative or employee of the City. Omni shall have the exclusive right to control all details and day- to-day operations relative to the Project and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Omni acknowledges that the doctrine of respondeat superior will not apply as between the City and Omni, its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Omni further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the City and Omni. Page 39 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. 17. INDEMNIFICATION. OMNI AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OMNIS BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCL UDING DEATH, THAT MAY RELATE TO, ARISE O UT OF OR BE OCCASIONED BY (i) OMNIS BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR (ii)ANY ACT OR OMISSION OF OMNI OR ANY OF ITS AFFILIATES, THEIR OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO THE PROJECT, ANY OPERATIONS OR ACTIVITIES ON THE HOTEL PROPERTY OR IN ANY IMPROVEMENTS THEREON, OR TO THE PERFORMANCE OF THIS AGREEMENT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH OMNI AND CITY, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 18. NOTICES. All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery: City: Omni: City of Fort Worth c/o Omni Hotels Corporation Attn: City Manager Attn: General Counsel 1000 Throckmorton 420 Decker Drive Fort Worth,TX 76102 Irving, TX 75062 Tel.No.: (817)392-6111 Tel.No.: (972) 871-5619 Fax No.: (817) 392-6134 Fax No.: (972) 871-5666 Page 40 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. with copies to: with a copy to: the City Attorney and Winstead, Sechrest &Minick, P.C. Economic/Community Development Attn: Andrew Dow Director at the same address 5400 Renaissance Tower Tel.No. (C.A.): (817) 392-7600 1201 Elm Street Fax No. (C.A.): (817) 392-8359 Dallas, TX 75270-2199 Tel. No. (ECD): (817) 392-6103 Tel. No.: (214) 745-5400 Fax No. (ECD): (817) 392-2431 Fax No.: (214) 745-5883 19. ASSIGNMENT AND SUCCESSORS. Prior to the Completion Date and for three (3) years thereafter, Omni may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement. Thereafter, provided that Omni is not in default of any of its obligations under this Agreement, the Tax Abatement Agreement, the Room Block Agreement or the Ground Lease, Omni may assign, transfer or otherwise convey any of its rights and obligations under this Agreement to another party upon receipt in advance of the written consent of the City, which consent shall not be unreasonably withheld or delayed, conditioned on (i) the prior approval of the assignee or successor and a finding by the City Council that the proposed assignee or successor will operate and market the Hotel under a First Tier Flag brand name and is financially capable of operating the Hotel in accordance with the Minimum Hotel Operating Standards and (ii)prior execution by the proposed assignee or successor of a written agreement with the City under which the proposed assignee or successor agrees to assume all covenants and obligations of Omni under this Agreement. Any lawful assignee or successor in interest of Omni under this Agreement shall be deemed "Omni" for all purposes under this Agreement. 20. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS, ALL GRANTS SUBJECT TO APPROPRIATION. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. Notwithstanding anything to the contrary herein, all obligations of the City to pay Program Grants to Omni hall be subject to annual appropriation by the City Council. The City's staff shall use its best efforts to include in each annual budget, for consideration and approval by the City Council (such approval, however, being solely within the discretion of the City Council), such amounts as would be sufficient to satisfy all of the City's obligations to Omni under this Agreement during the forthcoming City fiscal year. Page 41 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. 21. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers or immunities. 22. NO WAIVER. The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 23. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas—Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 24. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City and Omni, and any lawful assign or successor of Omni, and are not intended to create any rights, contractual or otherwise, in any other person or entity. 25. FORCE MAJEURE. In addition to those instances where Force Majeure is addressed elsewhere in this Agreement, it is expressly understood and agreed by Omni and the City that if the performance by either party of any obligation hereunder is delayed by reason of Force Majeure, the time period applicable to performance of such obligation shall be extended for a period of time equal to the period of the specific event of Force Majeure. 26. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. In the event of any direct conflict between the terms and conditions of this Agreement Page 42 Amended and Restated Economic Development Program Agreement between City of Fort Wortb and Omni Fort Worth Partnership,LP. with copies to: with a copy to: the City Attorney and Winstead, Sechrest&Minick, P.C. Economic/Community Development Attn: Andrew Dow Director at the same address 5400 Renaissance Tower Tel. No. (C.A.): (817) 392-7600 1201 Elm Street Fax No. (C.A.): (817) 392-8359 Dallas, TX 75270-2199 Tel. No. (ECD): (817) 392-6103 Tel. No.: (214) 745-5400 Fax No. (ECD): (817) 392-2431 Fax No.: (214) 745-5883 19. ASSIGNMENT AND SUCCESSORS. Prior to the Completion Date and for three (3) years thereafter, Omni may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement. Thereafter, provided that Omni is not in default of any of its obligations under this Agreement, the Tax Abatement Agreement, the Room Block Agreement or the Ground Lease, Omni may assign, transfer or otherwise convey any of its rights and obligations under this Agreement to another party upon receipt in advance of the written consent of the City, which consent shall not be unreasonably withheld or delayed, conditioned on (i) the prior approval of the assignee or successor and a finding by the City Council that the proposed assignee or successor will operate and market the Hotel under a First Tier Flag brand name and is financially capable of operating the Hotel in accordance with the Minimum Hotel Operating Standards and (ii)prior execution by the proposed assignee or successor of a written agreement with the City under which the proposed assignee or successor agrees to assume all covenants and obligations of Omni under this Agreement. Any lawful assignee or successor in interest of Omni under this Agreement shall be deemed "Omni" for all purposes under this Agreement. 20. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS: ALL GRANTS SUBJECT TO APPROPRIATION. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the City's Charter and ordinances, as amended. Notwithstanding anything to the contrary herein, all obligations of the City to pay Program Grants to Omni hall be subject to annual appropriation by the City Council. The City's staff shall use its best efforts to include in each annual budget, for consideration and approval by the City Council (such approval, however, being solely within the discretion of the City Council), such amounts as would be sufficient to satisfy all of the City's obligations to Omni under this Agreement during the forthcoming City fiscal year. Page 41 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. 21. GOVERNMENTAL POWERS. It is understood that by execution of this Agreement, the City does not waive or surrender any of it governmental powers or immunities. 22. NO WAIVER. The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 23. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 24. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the City and Omni, and any lawful assign or successor of Omni, and are not intended to create any rights, contractual or otherwise, in any other person or entity. 25. FORCE MAJEURE. In addition to those instances where Force Majeure is addressed elsewhere in this Agreement, it is expressly understood and agreed by Omni and the City that if the performance by either party of any obligation hereunder is delayed by reason of Force Majeure, the time period applicable to performance of such obligation shall be extended for a period of time equal to the period of the specific event of Force Majeure. 26. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. In the event of any direct conflict between the terms and conditions of this Agreement Page 42 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. and those of the Tax Abatement Agreement, the Room Block Agreement and/or the Ground Lease, this Agreement shall control. 27. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 28. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 29. ESTOPPEL CERTIFICATES. Omni shall have the right to request the City, from time to time, to issue an estoppel certificate so long as the certificate is requested in connection with a bona fide business purpose. Any estoppel certificate shall be delivered by the City within twenty (20) days (or such additional time as reasonably may be required under the circumstances), addressed to Omni or, at Omni's request, to another party and shall include, but not necessarily be limited to, statements by the City as to whether this Agreement is in full force and effect, whether the City is aware of any default hereunder by Omni or the City (and if so, the nature of that default and the curative action taken and/or necessary to effect cure), and the anticipated remaining tern of this Agreement. 30. ENTIRETY OF AGREEMENT; TERMINATION OF FIRST 380 AGREEMENT. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Omni, and any lawful assign and successor of Omni, as to the matters contained herein. Upon execution of this Agreement by both the City and Omni, the First 380 Agreement will automatically terminate and be replaced and superseded by this Agreement. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not be amended unless executed in writing by both parties and approved by the City Council of the City in an open meeting held in accordance with Chapter 551 of the Texas Government Code. Page 43 Amended and Restated Economic Development Program Agreement between City of Fort Worth and omni Fort Worth Partnership,L.P. 31. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be considered an original,but all of which shall constitute one instrument. EXECUTED to be effective April 27, 2005: CITY OF FORT WORTH: OMNI FORT WORTH PARTNERSHIP, L.P.: By: z By:Omni Fort Worth GP Corporation, Joe tZ aaDelaware corporation and its sole Asst City M g General Partner By: � - tvr /,/V(/ N me: S� 444 joy) Title: ve D,A-,dapr-vr- APPROVED AS TO FORM AND LEGALITY: -tl By: Attested By: Peter Vaky a Assistant City Attorney �� /0-1/ M&c: C-2/273 1-24-U City S crc City SCCCCctI!'y Page 44 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. EXHIBITS "A"—Map of Central City "B"—Completion Guaranty "C"—Diagram of Hotel Property "D"—Minimum Hotel Operating Standards (D-1 for Three Star Lodging Establishment, D-2 for Four Diamond) "E"—Project Construction Schedule Page 45 r i Amended and Restated Economic Development Program Agreement t between City of Fort Worth and Omni Fort Worth Partnership,LP. ; }} 7 — 7tt.c1 76118 76179 ..._` . TSt7l I r _ 76117 ?61 It` 76,06 f,, i � o i 694 n -761 1 Legtn4 6109 760,8 1MCx!.. _ = #ftwSI Grty MI .`, 7,;i 32 w ' e zm... W _ Wnj EXHIBIT "B" GUARANTY In consideration of entering into that certain Economic Development Program Agreement (as same may be amended from time to time, the "380 Agreement") effective as of April 27, 2005, between the City of Fort Worth, Texas, a Texas home-rule city ("Cit % and Omni Fort Worth Partnership, L.P., a Delaware limited partnership ("Omni"), relating to the development of a hotel, a parking garage and residential condominium units (collectively, the "Project") located in Fort Worth, Tarrant County, Texas and more specifically described in the 380 Agreement, TRT Holdings, Inc. (the "Guarantor") hereby unconditionally guarantees (i) that the Project will be Substantially Completed (as that term is defined in the 380 Agreement) at no cost to the City (the "Completion Obligation'), and (ii)the payment of any amounts determined to be an overpayment of any Program Grant (as that term is defined in the 380 Agreement) that are discovered by a reporting "true-up" or during an audit undertaken pursuant to the 380 Agreement that the City is not able to recover from Omni (the "380 Payment Obligation') (the Completion Obligation, and the 380 Payment Obligation are collectively referred to herein as the"Guaranteed Obligations"). Guarantor further promises to pay all of City's costs and expenses (including reasonable attorneys' fees) incurred in endeavoring to enforce the Guaranteed Obligations or incurred in enforcing this Guaranty, as well as all damages that the City may incur by operation of Section 2253.027 of the Texas Government Code. 1. If the City enforces the Completion Obligation against Guarantor and Guarantor is performing such obligation hereunder, then, notwithstanding any provision of the 380 Agreement or the Tax Abatement Agreement to the contrary, the City may not terminate the 380 Agreement or the Tax Abatement Agreement and may not reduce the amount of any Program Grant under the 380 Agreement or the value of any abatement under the Tax Abatement Agreement on account of Omni's failure to by the Completion Deadline(as defined in the 380 Agreement)to expend minimum Hard Construction Costs (as defined in the 380 Agreement) for the Project or to Substantially Complete the Project, nor may the City reduce the amount of any Program Grant or abatement. As used herein, the term "Tax Abatement Agreement" means that certain Tax Abatement Agreement entered into between Omni and the City and dated of even date with the 380 Agreement. 2. City may at any time and from time to time, without notice to or consent by Guarantor, take any or all of the following actions without affecting or impairing the liability and obligations of Guarantor on this Guaranty: (a) grant an extension or extensions of time for performance of any Guaranteed Obligation; Exhibit B—Page 1 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. (b) grant an indulgence or indulgences in the performance of any Guaranteed Obligation; (c) accept other guarantees or guarantors; and/or (d) release any person primarily or secondarily liable hereunder or under the 380 Agreement or under any other guaranty. The liability of Guarantor under this Guaranty will not be affected or impaired by any failure or delay by City in enforcing the Guaranteed Obligation or this Guaranty or any security therefor or in exercising any right or power in respect thereto, or by any compromise, waiver, settlement, change, subordination, modification or disposition of the Guaranteed Obligation or of any security therefor. In order to hold Guarantor liable hereunder, there will be no obligation on the part of City, at any time, to resort to Omni or to any other guaranty or to any security or other rights and remedies for performance, and City will have the right to enforce this Guaranty irrespective of whether or not other proceedings or actions are pending or being taken seeking resort to or realization upon or from any of the foregoing; provided, however, that the City shall first seek payment from Omni of any 380 Payment Obligation before enforcing this Guaranty against Guarantor for collection of such amount. 3. Guarantor waives all diligence in collection or in protection of any security, presentment, protest, demand, notice of dishonor or default, notice of acceleration or intent to accelerate, notice of acceptance of this Guaranty, notice of any extensions granted or other action taken in reliance hereon and all demands and notices of any kind in connection with this Guaranty or any Guaranteed Obligation. 4. Guarantor hereby acknowledges full and complete notice and knowledge of all the terms, conditions, covenants, obligations and agreements relating to the construction of the Project set forth in the 380 Agreement. 5. The payment by Guarantor of any amount pursuant to this Guaranty will not in any way entitle Guarantor to any right, title or interest (whether by subrogation or otherwise) of Omni under the 380 Agreement or to any security being held for any Guaranteed Obligation. 6. This Guaranty will be continuing, absolute and unconditional and will remain in full force and effect until the Guaranteed Obligations are performed and all obligations of Guarantor under this Guaranty are fulfilled. 7. This Guaranty will also bind the successors and assigns of Guarantor and will inure to the benefit of City and City's successors and assigns. 8. This Guaranty will be governed by and construed according to the laws of the State of Texas and will be performed in the county identified in the first paragraph of this Guaranty. The situs for the resolution (including any judicial proceedings) of any disputes arising under or relating to this Guaranty will be the county referenced in the Exhibit B—Page 2 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. first paragraph of this Guaranty. 9. If this Guaranty is executed by more than one person, all singular nouns and verbs herein relating to Guarantor will include the plural number, the obligations of the several guarantors will be joint and several and City may enforce this Guaranty against any one or more guarantors without joinder of any other guarantor (hereunder or otherwise). 10. City and Guarantor intend and believe that each provision of this Guaranty comports with all applicable law. However, if any provision of this Guaranty is found by a court to be invalid for any reason, the remainder of this Guaranty will continue in full force and effect and the invalid provision will be construed as if it were not contained herein, and if such a finding reduces or eliminates any benefit to City hereunder, the City and Guarantor will mutually work together in good faith to amend this Guaranty promptly so that the full intended benefit to the City provided hereunder is restored. 11. Guarantor will, from time to time, within ten (10) days after written request by City, execute and deliver to such persons as City may designate, an estoppel agreement certifying that this Guaranty is in full force and effect and further certifying such other matters as City may reasonably require. 12. This Guaranty and Guarantor's liability hereunder is only related to the Guaranteed Obligations and nothing set forth herein shall be deemed to impose on Guarantor any liability or obligation to guaranty the performance of any other obligations or covenants of Omni under the 380 Agreement or under any other agreement entered into between the City and Omni. 13. This Guaranty will terminate with respect to the Completion Obligation, and Guarantor will be released from all liability hereunder relating thereto, when the Project is Substantially Completed. This Guaranty will terminate with respect to the 380 Payment Obligation, and Guarantor will be released from all liability hereunder relating thereto, upon the expiration of the 380 Agreement and the satisfaction of Omni's obligations thereunder relating to the 380 Payment Obligation. Upon satisfaction of the Completion Obligation and upon expiration of the 380 Agreement, the City shall deliver a written instrument signed by the City acknowledging that the applicable Guaranteed Obligation has been satisfied, which instrument shall be delivered to Guarantor within fifteen (15) days after receipt of written request therefor from the Guarantor. The City's delivery of such instrument, however, is not a condition precedent to the termination of this Guaranty pursuant to this Paragraph 13. 14. It during the term of this Guaranty, Guarantor's net worth, as shown on Guarantor's annual audit prepared in accordance with generally accepted accounting principles, decreases to an amount equal to Two Hundred Million Dollars ($200,000,000.00) or less, the City may require Guarantor obtain payment and performance bonds in a form reasonably acceptable to the City to secure the Substantial Completion of the construction of and full payment for construction of the Project, by Exhibit B—Page 3 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. delivering written notice to Guarantor. Within thirty (30) days after receipt of such notice, Guarantor shall cause such bonds to be delivered to the City. If Guarantor has not delivered the such bonds to the City within such time period, City may obtain such bonds on Guarantor's behalf, the cost of which will be repaid to the City as an offset against the Lease-Based Grant under the 380 Agreement; provided, however, before obtaining such bonds, the City must first meet and consult with Guarantor to determine the status of Guarantor's efforts in obtaining the bonds. If Guarantor delivers the bonds as required by this Paragraph 14, Guarantor shall be released of all further liability under this Guaranty with respect to the Completion Obligation. The City shall have the right, no more often than once per calendar quarter, to verify the net worth of Guarantor by reviewing the financial information of Guarantor (including the compliance certificates prepared by Guarantor for review by its institutional lenders), which shall serve as conclusive evidence as to whether the net worth requirement is satisfied. The City's review must take place at the office of Guarantor and the City shall not be permitted to make copies of any documentation reviewed at Guarantor's office. The City shall give Guarantor at least fifteen (15) days written notice in order to set a meeting at Guarantor's office for such review. [Signature page follows.] Exhibit B—Page 4 Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty this ;7-711"day of J; n vn r 2006. GUARANTOR: TRT HOLDINGS, INC., a Delaware corporation By. Name: ie-liae✓gr-',M Title: -"Vowv //iYA *Yl ek- ADDRESS: TRT Holdings, Inc. 420 Decker Drive Irving, Texas 75062 Attn: President With a copy of notices to: Omni Hotels Corporation 420 Decker Drive Irving, Texas 75062 Attn: Michael G. Smith Page 5 TRT Holdings,Inc.Guaranty EXHIBIT "C" DIAGRAM OF HOTEL PROPERTY The Hotel Property consists of roughly the southern 2/3 of Blocks 7 and 8, Tarrant County Convention Center Addition, an addition to the City of Fort Worth, Tarrant County, Texas, as recorded in Volume 388-59, Page 14, Plat Records, Tarrant County Texas. A diagram of such property is attached hereto. Once the exact location of the Project has been determined and final plans and specifications for the Hotel and the Hotel Garage have been approved by the City in accordance with Section 4.3 of this Agreement, the Hotel Property will be replatted as agreed to by and between the City and OmnL Exhibit"C" Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. m '. C, A W 13TH ST � _W_ 1 STH_ S T W LANCASTER AVE -` " - ` ___=�' y�R,AVE -= -1 W LANCASTER AVE ,NCAS EXHIBIT"D" MINIMUM HOTEL OPERATING STANDARDS [The Minimum Hotel Operating Standards appear on Exhibit "D-1 and Exhibit 'D-2"] Exhibit D—Solo Page Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. EXHIBIT "D-1" THREE-STAR RATING-MOBIL TRAVEL GUIDE Lodging Criteria and Expectations 'kae;The tollowbV criteria,are suggested crtlwia of wrest a guest can generally expect at each star level They are not ind6viduafl y mandated nor are fhey limited to those Perm fisted below. These are merafy a representative sanrp!rng of the hundreds of points coveted during our inspe-6m process. Additionally,at each level the iodging establishment is required to meet or excaod the requivawra of the prevbus star rating.For example,a Two-Star hotel meets the criteria expectations of a Two-Star hotel as yeti as the One-Star hotel A Th.,*@- Star hotel meets the criteria expectations of a Thtse-Star hotel,a Two-Star hotel and One-Slaw trotel,and so fa.(h. * (ane-Star Lodaina Establishment is a clean, comfortable,and rekabte, limited service establishment. Courteous service and good housekeeping,including daily maid service, are standard. Characteristics of a One-Star Hotel or Motel irsclude: Services Detail Sia`f k$well-groomed nit`i professional,neat and well-maintained attire. PJl staff encountered are pleasant and professional in their demeanor -Coffee,hot tea and breakfast pastry are available on-rile(Gould be In-room). # Two-Star Ladalna Establishment provides dean,comfortable and rellataie accommodations along with expanded amenities and services,such as a full-sors.'ics restaurant on-site.Guests at a Two-Star Hotel,Resort or Inn can expect to find all of the qualifies for a Orle-Star Hotel,or Resor;plug the following chbradwlslics: Services Detail -Front desk staff are articulate,smile and make eye contact, Staff is attired in well•fitting,consistent uniforms. -Baggage assistance is available on request -The front desk is staffed twenty-four hours, •Restaurant on-site serving three meals daily. -If Inn,twenty-fact hour guest service available on-call * * Three-Star Lodaina Establishment is an establishment that is well-appointed,with `ull services and expanded amenities Guests at a Thn:+e-Star Hotel,Resort or Inn can expect to find all or the quafltes for a Two-Starr Hotel or Resort plus the fallowing characteristics: Sarvices Detail -Turndown service is available upon request. -Valet parking Is available. -Baggage assistance is automatic. -Same day foundry and dry cleaning av mlable five daystweek. -Complimentiuy newspapers are delivered to room autornatically. -Complete room service is avelable. -Workstation is avaiiawe where guest can access Internet. •Basic fitness equipment is provided,including weadmills and cycles. - If Inn,restaurant on-site winch serves full breakfast is available. If Resort,comptiznentary newspapers(or newsfaxes)are delivered to room autoninsticatty. Exhibit D-1—Solo Page Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. EXHIBIT "D-2" FOUR-DIAMOND RATING-AMERICAN AUTOMOBILE ASSOCIATION �"'• w--c E*t-i ,,a. .r_ .' t - rri."•'.'"�-, yi'�i*i�Yi�AG'�6�.U6.��Oc - v-cam/K.4• S. �u �A 'L^Stix t4. i� Axcpiad 24 hours,either sa pr0f euty a through ;fit•`r :> a ow*al rescan system j Ph"prarnpily era►agred wi-Olin three rima i ter; Worm and*oere greeting offered i Aec4 watjwW offers rate a nxn re,evar'table ` s rowns,'ac0i6es,and services r ri Reservatorft gives chak a of ernoldng or �- rrorr smaldng room,eacpiams N properly i*a T ..•`s.x smoke tree premise Reservalionist wNeVs regWratian inlanmatm faeservaUonlst dept and cancensti m ` N..'xy polid Fesarvafiodst enpfaors urw=W pay menl options Reservafionist reviews reservation ragU9sit Plesservafiomiat gives Cmfirrmalicn rAxWer or j;,..,;•7.. ,:,•" .. _�;y-'r�; Cgnled'S rYarrlB Reservalionislwarmly and sincerely ttmrlks guest fur celkQ • 1fl 4 RReservtsl+onist addressft guest by name during Unibemod attendant prcrnpdy opens huff qr door and provides a warm and sincere weMeome Attertdare e4ftft parld"l; AtWndaN promptly unloads luggage,e3oaBns handling procedure.and glues dimtoo►to ''�`c--•� Y r �,� ;agishation area. Allerdard otters a unarm and swxwo Closing k rc.rl9+q�;r, �.,' `• ._77 Attendant pnrvides a warm and slmc9rA gra�eting; f r 3- "K*gnisas guest apprW1014Y r ?�; Attandar%adrmowledges bests walling In rate wo a Warm and wefcorning gn2e. 9 P*g wered guesla are rKA asked for dtWAnato information Mendard conilmis rats and type of roan AUendarit deMrs nnassaVes&screedy Aitatdarrt ptovWOrn eS rorttrrk+er discreetly Attenders places all rog�Mbon materials Wo .Mt4, the gLw-va hand r y1 t;•,£ wi }'` �l>t S Atl6ndartf arranges es:W 01 guest and tielon"to room AlwAarg offers a warm and sincere ciriVng Atterdard aditnes guest by name drirq dcsft (..r.. Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. d T•i•y.i• Imon Provides a warm and rIg f '.'L •LYS C.4, Escott is aN IQ t IQt�lirati0n a�otA Escort oft to heng garment bag wd plow r - hrwge On tug,7age stand or in eppxOprt$f¢area 4 k .Mx icon mlalm iestLms and hAt.^.Dm of room Escort otfm 0 fib ice hudret E.sdDrl asks it there are any other v6-4y*to 6e Of Service Esanrt yrs a vfarm and sincere closing a" ~- Turndavn service avagalle on request{Service may ba ren N*&4"mond ort`bd Operator arVumm phone promptly within three k rings Operal x proy4es a warm and Sincere greet4r¢. u31ng guest's name r t Operator ofbrs a warm and dowing Avendant accommcdales rests tx fir'no of 6ervim +LLib7xz Folds bicK or wroves b9dsprsad s" Tums upplllows StraigMsns baAhrocrn,re-poirrls§=*--, wtpss'urfaces v'tPanseistthay Aaqusta drapes A4ue%ram tight �• s� �::; Aeptaces used glass= Ttrrrrs an-.a lisp" l oxr iC F Ga11s StrrviCe Is nvallaNe,24 twues a dw%seven days a`a a week SerVraa nu nber is aroaared wttt-(tree rings i s I'=– operator provides a warm and xioers gra oft using gussf s name vrhen cab to requestod : ,yltt{Y; I* "f'�•a"^asks aWgxt'ate""ons ar7d replies NLI Opembar orlers a warm and sincere Closing t A4rmrnatod,par".omI cal!received YA"in five minutes Of MgkJC%W lime(SWViaa maq he �'- autam led with d rfismord ONO Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. A 5e!lice twm;zer Is awn"swered within 1h�ea doge Opemw pmWdes a warm and stere greeting. trstrg Ousel`$name u Openetar asks apprapriste qnUanc and is M4 t, y or a prote$aionai mwvw }' Operaw repeats order to guest Opecator gtvee 1•ane estimate for deNvary ' -{within 30 h*,L*") Operator aMers a wbrrfr aid sieftoe edosieg Operator cart to advise Owd N order atia be tais or hams ordered are+rot available Spacial etrpresc 6wrAws are sMallaWe for bteaktaMt orders Defiv€and wiifsrt live mk%Aes of Urns prone&-el Myming newspepardeivered to door or wqh broak;ast Of daferered to Quest door,the Pallet Is premrsed wilt►baea3ldasO f Aaendard aHera assugcgretiwt as to lraylu le pest cr ` Ai6andettt reArAs.guest order AtDendant prepares faille ael-up and removes t rood covers with guest p4rrrilaelon ,� �"� Fa6d pie�rrteli8dl� of Ff6gra3tf]ErltS relicts an upscale erferice A I appsoprlate distnvare and fe,ens are of an. wo ale wow AN tmd Is 98 eW et to proper t9n ilte: (toot food hot and cold to d.c" M food is prepared as ordered Aifgrtdarit oti®is fo:patir bsveralge Attendant provides writtm or verbal watruebons for ifre 1aCleJirey ret:travaV � Altettdant ollets a warm acrd sfncere ctosrg Prompt removal of traysliatilee,UPOn reWeat i SaMeo nu+tftt is arawered wiMi n ft" Operator prayides a warm and sincere gree>ir a using gUes's rtarne i Operaror attars to relneve Car or arrange pow' i ^t..•r t y:; aansporttttlon . . t- • Operator oele:s a warm and sincere rinsing t Beikfian arrives pump,if nils%1"IT cue' 5U' mi%fte guest'ia.nofif*d a(daW M rbf *f- ' �'`r � s�• " +s Bridrnert provides a warm and elrrcere(trecN►ns. i Uft QtSftclam a a6almn"7*40auOx+say 7Wntfscorr4orsartWkh quest YM Yb pro{ridiry f Z�iix W i M asalwan9e ` �• S*ftt1 oftre.d warm sod sincere closing ' hd N a Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. F . Express check-out services we available 24 horaslseven days a week �.,• - Attendant provides a warm and aincm greeft3i r " re=Wfte guest apPmoPriattty Aftndant acknowledges guests wailing in dne wM a warm and wetoo M greeting ARendwt inquires about guest's slay Attendant provides a aVy of bM mr mvbew into thet�9uesfs haul Attendant Confirmz PAWA m ethod AttAent contirm payment melhod Aftendant ptam clregr•out idic into the guest's ' hard AttwKiant expresses a xalrm and sincere thank- ' frau kX Am ng at the Property Alt xlant oilers a mum cezd sktcore dosing Guest dost;not wait mDra V4ft True minutes for tnansportatian Attend&M provides a%harm and shera greeting.. { ' ' u*9 Vuesrs rtame Abendaftt Is conversant perlair*V to the Queers 1 stery Attendant apwa W dtNes door for guaslta3 Atlendant offers a warm and sktcere dosing -�i�.�" H AcCUrlle pre-prcgraneneC phanc. - Concierge servcoe rxmrber Is amwred*thin ! ' itrree rw% B by phare,apa►ator griovrdas a warm and - sincere graeft uWq gnarl's name AdendantloperaW is krim% dgeade of all area t * tt a*acthns and servlce9 17e Atha KkvWCpemtar asks 9#%w are any 04 ar ",s to be of service AtICximrltfCpBC21or U111z3 a W3im 8'Kt Sh1Ct(B - ; AnandarVopewtor addresses guest by rraw-e during cioskV R TOvernVit vatel and laundry available y. r it t; 1i Misceftneaus charges are bAd ed ci rectly to the V este room Food and beverage ouNts toned the characteristics of the properly -x A':I assoclat--p exhibit a pevfesszmal vocabulary s AN associates conWanty maintain or contact withgw0a S rpt z: AR assadates are approprialet Mod,name -yr " tap Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,L.P. EXHIBIT "E" PROJECT CONSTRUCTION SCHEDULE EVENT DEADLINE Engage Architect and Design Team 150 days from Effective Date Final Plans and Specifications in Place 510 days from Effective Date Commencement of Construction 600 days from Effective Date Substantial Completion of Project 1,320 days from Effective Date Amended and Restated Economic Development Program Agreement between City of Fort Worth and Omni Fort Worth Partnership,LP. Dallas 114346679\2 42379-14/6710086 L i LY1 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 1/24/2006 - Ordinance No. 16793-1-2006 & 16794-1-2006 DATE: Tuesday, January 24, 2006 LOG NAME: 170MNI EDPA REFERENCE NO.: C-21273 SUBJECT: Authorize Execution of Amended and Restated Economic Development Program Agreement with Omni Fort Worth Partnership, L.P. Pertaining to Development of Convention Center Headquarters Hotel; Adopt Supplemental Appropriation Ordinances; and Authorize Transfer of Funds RECOMMENDATION: It is recommended that the City Council: 1. Make the findings specifically set forth in the attached Amended and Restated Economic Development Program Agreement; 2. Authorize the City Manager to execute an Amended and Restated Economic Development Program Agreement with Omni Fort Worth Partnership, L.P, pertaining to the development of a Convention Center headquarters hotel; 3. Adopt the attached supplemental appropriation ordinance increasing appropriations in the Culture and Tourism Fund by $2,300,000 and decreasing the unreserved fund balance by the same amount; 4. Authorize the transfer of $2,300,000 from the Culture and Tourism Fund to the Specially Funded Capital Projects Fund; and 5. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Specially Funded Capital Projects Fund by $2,300,000 from available funds. DISCUSSION: On April 27, 2005 the City and Omni Fort Worth Partnership, L.P. (Omni) executed numerous documents relating to Omni's development of a headquarters hotel for the Fort Worth Convention Center (City Secretary Contract No. 31734, as amended by City Secretary Contract No. 32921). One of those documents was an Economic Development Program Agreement authorized by Chapter 380 of the Texas Local Government Code (the Original 380 Agreement). Pursuant to the Original 380 Agreement, the City agreed to pay Omni annual grants over a 10-year period based on City hotel occupancy and sales taxes and State hotel occupancy and sales taxes rebated by the State to the City in accordance with State law, with contingency grants paid after the 10th year in the event that a subsequent change in law caused a reduction in the anticipated grant amounts. These grants would be contingent on Omni's completing the hotel and complying with construction spending, employment and annual supply and service spending requirements. In addition, the City would pay Omni grants based on rent paid by Omni to the City for the land on which the hotel would be located and the purchase price of that property upon exercise of an option for Omni to buy the property from the City. Finally, the City would pay Omni a grant to help offset costs associated with construction of an underground parking garage and with making the land "pad ready." Due to construction costs for this project that will be higher than originally anticipated, it is recommended that the City and Omni enter into the attached Amended and Restated Economic Development Program http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/9/2006 Page 2 of 5 Agreement (the Amended 380 Agreement). The Amended 380 Agreement will supersede the Original 380 Agreement. Below is a detailed comparison of the Original 380 Agreement and the Amended 380 Agreement, outlining the project, the grants that the City will pay to Omni and the commitments that Omni must meet in order to receive the full amount of those grants. PROJECT OVERVIEW This project originated when Omni responded to a Request for Proposal issued by the City in 2003 with regard to the development of a headquarters hotel for the Fort Worth Convention Center. Omni still proposes to construct a full-service hotel on two tracts of land owned by the City and located directly to the west of the Convention Center. The hotel will still have approximately 600 rooms, two full-service restaurants, a lobby bar, approximately 48,000 square feet of dedicated meeting space and other supporting facilities commensurate with a full-service convention center hotel. Whereas under the Original 380 Agreement, Omni had an option to construct residential condominiums or apartments on top of the hotel, the Amended 380 Agreement will require that at least 125,000 square feet of residential condominiums be constructed on top of the hotel. The City has been involved in the design and specifications of the project, which will blend in with the Convention Center and downtown Fort Worth in general, in terms of exterior materials, yet stand out as a landmark in the southern end of downtown and serve as a catalyst for additional development along the Lancaster Corridor. Under the Original 380 Agreement, Omni committed to spend at least $59,360,000 in hard constuction costs for the hotel and hotel parking garage and for TRT Holdings, Inc., Omni's ultimate parent company, to provide the City, within 8 months of the effective date (subsequently extended to January 31, 2006), a guaranty that the hotel and hotel parking garage would be completed. Under the Amended 380 Agreement, Omni has committed to expend at least $100 million on the project and has agreed that by January 31, 2006 TRT Holdings, Inc. will provide the City a guaranty that the project will be completed. Omni will still have the right to lease retail space in a newly constructed parking garage owned by the City and located directly to the north of the Hotel property and, with certain exceptions, will have an exclusive right to provide catering services at the Convention Center. OMNI COMMITMENTS As part of this project, Omni has made the following commitments: - Construction Spending. Under the Original 380 Agreement, Omni committed to spend the lesser of $11,872,000 or 20% of hard construction costs for the hotel and hotel parking garage with Fort Worth companies and the lesser of $5,936,000 or 10% of hard construction costs with Fort Worth M/ BE companies. Under the Amended 380 Agreement, Omni has committed to spend a minimum of $20 million in hard construction costs for the project with Fort Worth companies and $15,000,000 with Fort Worth M/WBE companies. Expenditures with Fort Worth M/ BE companies will still count toward the commitment for spending with Fort Worth companies. If Omni fails to meet any of these commitments, the City will still receive a credit toward its obligation to pay certain economic development grants (as outlined below) equal to the number of dollars by which the commitments were not met. - Employment. Omni's employment commitments under the Original 380 Agreement will remain the same under the Amended 380 Agreement. Omni annually will provide at least 250 full-time equivalent jobs (FTEs) in the hotel and hotel garage, of which at least 125 must be residents of the City of Fort Worth and 62 must be residents of the Central City. Jobs provided to residents of the Central City will also count as jobs provided to residents of the City of Fort Worth. If Omni fails to meet any of these commitments, Omni will pay the City $4,500 for each FTE below the 250 overall commitment; $4,500 for each FTE below the 125 City of Fort Worth commitment; and $9,000 for each FTE below the 62 Central City commitment. All such payments will be used to fund a job-training program at the hotel. - Supply and Service Spending. Omni's annual supply and service commitments under the Original 380 Agreement will remain the same under the Amended 380 Agreement. Omni will spend at least $100,000 per year with Fort Worth companies and at least $50,000 per year with Fort Worth M/ BE companies in discretionary supplies and services for the hotel and hotel garage. Spending with Fort Worth M/ BE http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/9/2006 1"St.-, V1 -, companies shall also count toward the spending commitment for Fort Worth companies. If Omni fails to meet any of these commitments, the city may deduct three times the number of dollars by which Omni failed to meet the commitments from future payments of certain economic development grants (as outlined below). - Operating Standards Omni will still be required to operate the hotel in accordance with those operating standards attributable to a 3-star/4-diamond hotel. If Omni fails to continue operating the hotel at such standards after a 1-year notice and cure period, the City may suspend payment of certain economic development grants (as outlined below) until Omni has resumed operating the hotel at such standards. As explained below, the term of the Amended 380 Agreement is anticipated to be 18 years rather than 10 years, as was anticipated under the Original 380 Agreement. Accordingly, the City will have the right to enforce operating standards at the hotel for up to 8 additional years. CITY INCENTIVES In return for the economic benefits, increased employment and commercial stimulation that the City of Fort Worth is anticipated to receive from the hotel in the form of increased Convention Center bookings, additional tourism and private development around the hotel site, the City will pay Omni various economic development grants authorized by Chapter 380 of the Texas Local Government Code and in accordance with the City's Chapter 380 Economic Development Program previously approved by the City Council, as follows: - Completion Grants. Under the Original 380 Agreement, the City is required to pay Omni monthly grants equal to 50% of the hard construction costs expended by Omni in the previous month until Omni has received $6.3 million. The Amended 380 Agreement will retain this requirement and, additionally, require the City to pay Omni a grant of$2.3 million once the project has been completed. - Incentive Grants. Under the Original 380 Agreement, once the hotel opens and for 10 years thereafter, the City is required to pay Omni quarterly grants equal to the City hotel occupancy tax and 1% City sales tax received in the previous quarter (capped at $37 million over the course of the program), plus, without any cap or limitation, the state hotel occupancy tax and sales tax rebated to the City because, as provided by state law, the hotel is located within 1,000 feet of a convention center and is located on property owned by the City. In the event that the City tax rates are lowered, the City will pay Omni the difference between what Omni received and what Omni would have received without the change in rates. In the event that the City does not receive the anticipated state taxes because of a change in rates or the law, the City will pay Omni an amount equal to 25% of the difference. In both instances, the unpaid difference will carry interest at 14% per annum until fully paid. Under the Amended 380 Agreement, the City will pay all of the above incentive grants plus the following: - For the first 5 years after the project is completed, the City will also pay Omni annual grants equal to the real property tax revenue received by the City from condominium units that are owned by Omni and remain unsold, unleased or otherwise uninhabited. Any condominium unit that is sold or rented within the first 5 years will be fully taxable from the point of sale or lease. All of the condominium units, regardless of whether they are sold or rented, will be fully taxable after 5 years. - In years 11-15, the City will also pay Omni quarterly grants equal to the hotel occupancy taxes that the City receives from the hotel plus the real and personal property taxes that the City receives from the hotel and the hotel garage, but excluding hotel sales taxes. - In years 16-18, the City will also pay Omni quarterly grants equal to the hotel occupany taxes that the City receives from the hotel, but excluding real and personal property taxes from the hotel and hotel garage and also excluding hotel sales taxes. The Amended 380 Agreement provides for a cap of $89 million is gross dollars , which takes into account http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/9/2006 Yage 4 of S the fact that Omni will not be receiving the majority of the additional grants for at least 10 years after the project is completed (i.e. the time value of money). Once this cap is reached (and assuming Omni has received all grants based on state-rebated taxes for the first 10 years), the Amended 380 Agreement will expire, regardless of the year in which that cap is reached. Based on all information received by the City, the City has confirmed that the difference in the cost of the project between what Omni will have to pay to complete the project and what Omni would pay in the commercially reasonable course of its business to complete the project is approximately $49 million, net present value. The grants paid by the City to Omni under this Agreement are intended to fill that financial gap. Based on projections reviewed by the City's financial advisors, the City does not believe that aggregate grants paid under this Agreement will be as high as this capped amount. Rather, the purpose of the cap is to protect the City from paying higher-than- anticipated grants to Omni should the project's performance exceed anticipated projections. - Lease-Based Grants. The City will still pay Omni an annual grant equal to the amount of rent paid to the City on the hotel property, which will be owned by the City for at least 10 years following the hotel's completion, less $10,000. Thereafter, Omni will have an option to purchase the property at fair market value and the City will have a put option to require Omni to purchase the property at the same price. Omni will own the hotel and the hotel garage at all times. The condominiums will also be privately owned. - Sale-Based Grant. Upon Omni's exercise of its option to purchase the property on which the project is constructed or the City's exercise of its put option to require Omni to purchase the property, the City will still pay Omni a one-time grant equal to the purchase price, less $1 million. In addition, the City will still waive development-related fees for the project, as specified in the Amended 380 Agreement. The City Council previously nominated this project for designation as a state enterprise project. A Tax Abatement Agreement providing for a 10-year abatement on the hotel and hotel garage real and personal property, executed contemporaneously with the Original 380 Ageement, will be amended pursuant to a separate M&C in order to ensure that Omni's commitments under that Tax Abatement Agreement are consistent with those in the Amended 380 Agreement (e.g. commitments for overall construction spending and construction spending with Fort Worth companies and Fort Worth MI BE companies). The Room Block Agreement, Ground Lease, Catering Agreement and License Agreement, all of which were executed contemporaneously with the Original 380 Agreement, will remain in full force and effect. It is anticipated that construction on the project will begin in the summer of 2006 and that the project will be completed in the 4th quarter of 2008/1 st quarter of 2009. The Omni Convention Center Hotel will be located in COUNCIL DISTRICT 9, and will serve all Council Districts. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that upon approval of the above recommendations and adoption of the attached appropriation ordinances, funds will be available in the current capital budget, as appropriated, of the Specially Funded Capital Projects Fund. The unreserved designated fund balance of the Culture and Tourism Fund will be $14,305,306 after this appropriation. TO Fund/Account/Centers FROM Fund/Account/Centers 3) GG04 538070 0246000 $2.300,000.00 41 4 5) GG04 538070 0246000 $2.300.000.00 C291 472004 251050022480 $2.300.000.00 51 $2,300,000.00 C291 5391020 251050022480 http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/9/2006 rage:) of Submitted for City Manager's Office by: Joe Paniagua (6191) Originating Department Head: Tom Higgins (6192) Additional Information Contact: Peter Vaky (7601) http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/9/2006