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HomeMy WebLinkAboutContract 22327 CITY SECRETADv LEASE ®NTRACT NO STATE OF TEXAS COUNTY OF TARRANT ORIGINAL ,J This lease is made by and between Fort Worth Botanical ^�' 211 Society, Inc . , a Texas non-profit corporation, whose address is 3220 Botanic Garden, Blvd. , Fort Worth, Texas, 76107, hereinafter referred to as "Lessor" and Arif Fazal, hereinafter referred to as "Lessee" . WHEREAS Lessor has entered into a lease agreement with the City of Fort Worth with respect to certain property located within the Fort Worth Botanic Garden; and WHEREAS Lessor desires that a restaurant be maintained and operated within the Botanic Garden; and WHEREAS Lessee wishes to enter into a sublease with Lessor for the purpose of maintaining and operating a restaurant within the Botanic Garden; and WHEREAS the City of Fort Worth has consented to said sublease under the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee agree as follows : ARTICLE I. 1. 01 Premises . Lessor hereby leases to Lessee and Lessee hereby rents from Lessor upon the terms and subject to the conditions set forth in this lease, the property described in Exhibit "A" hereto, together with all fixtures thereto, (the "Leased Premises" ) , for the purpose of the operation of a restaurant upon the leased premises . For the same consideration stated herein Lessor also leases to Lessee all of the personal property listed on the attached inventory labeled Exhibit B, and incorporated herein by reference for all purposes . 1. 02 Quiet Enjoyment. Lessor warrants that, during the term of this lease, so long as Lessee is not in default hereunder, Lessee will have the quiet enjoyment of the leased premises and the uninterrupted right of use and possession thereof in accordance with the terms of this lease and the Master Lease with the City of Fort Worth. OFFICIAL RECORD i CITV SE M c:\wpwin\Botanic FT. WORTH, W.--i ARTICLE II TERM 2 . 01 Initial Term. The initial term of this lease shall be for a period of six (6) months commencing on September 1, 1995 . 2 .02 Renewal Term. Upon the expiration of the initial term, and unless terminated by either party as set forth below, this lease shall be renewed for an additional term of two (2) years (the "Renewal Term" ) . Such renewal shall be automatic, unless either party has given notice at least thirty (30) days prior to the expiration of the initial term of that party' s intent to terminate the lease upon the expiration of the initial term. Upon the expiration of the renewal term, this lease shall terminate unless extended in writing by mutual agreement of the parties . The initial term, the renewal term and any negotiated extensions are hereinafter collectively referred to as the "Term" of this lease . 2 . 03 Early Termination. During the initial term of this lease, either party may terminate this lease upon thirty (30) days written notice to the other party. During the renewal term of this lease, either party may terminate this lease upon sixty (60) days written notice to the other party. 2 . 04 Termination Upon Loss of Leasehold. Notwithstanding anything else herein to the contrary, in the event that Lessor' s lease with the City of Fort Worth is terminated or not renewed, for whatever reason, during the term of this lease, this lease shall terminate immediately upon the termination or expiration of the lease between Lessor and the City of Fort Worth. ARTICLE III. RENTAL 3 .01 Rentals Payable. Lessee covenants and agrees to pay to Lessor each month as rental for the leased premises the greater of the following: (a) A monthly base rental of three hundred dollars ($300 . 00) (the "Base Rent") ; or (b) A monthly percentage rental of five percent (5%) of gross sales for the preceding month (the "Percentage Rent" ) . 3 . 02 Gross Sales Defined. The term "gross sales" as used in this lease means the actual total sales of Lessee, for cash, check, or on credit terms, from all sales of food, alcoholic and non-alcoholic beverages, merchandise, services and entertainment, including, without limitation: 2 (a) Sales from all sources derived from business conducted on the leased premises or from catering within the Botanic Gardens; (b) All sales charged with Lessee on credit cards or otherwise, regardless of the collection or collectability thereof and without reduction for bad debts, collectable accounts, refunds, or cost of collection; (c) Orders received at the leased premises but filled elsewhere, if allowed by Lessor, except where Lessee has to pay 100 or more for a facility where catering is done; and (d) All other receipts from all business conducted by Lessee in, at, from or arising out of the use of the leased premises . All sales originally made in, at, from or arising out of the use of the leased premises shall be considered as made and completed from the leased premises even though the payment of the account may be transferred to some off premises office of Lessee for collection. Each sale upon installment or credit shall be treated as a sale for the full price in the month in which such sale is made irrespective of the time when Lessee received payment . 3 . 03 Exclusions from Gross Sales. Gross sales shall not include : (a) Any sums collected and paid out for any excise, sales or use tax required by law, based upon the sale or sales of goods or services, whether now or hereafter enforced to be paid by Lessee or collected from its customers; (b) The amount of gratuities actually paid to employees. 3 . 04 Payment. Lessee agrees to make all payments of Base rent and additional rent for each month of the lease term to Lessor, at Lessor' s address, on or before the first day of the month. The initial monthly payment due hereunder shall be due and payable at the time of execution of this lease. If this lease commences on a date that is not the first day of a month, or terminates on a date that is not the last day of a month, then the first or last month' s base rent payment, as applicable, shall be pro-rated. Payment of any and all monthly percentage rent due under this lease shall be made, with respect to each month' s gross receipts, on or before the 15th day of the following month, and shall be accompanied by the monthly statement required in Section 4 . 01 below. 3 3 .05 utilities. In accordance with Article XI, Lessee shall pay the sum of $750 . 00 per month as additional rent beginning September 1, 1995, for utilities at the leased premises . 3 .06 Meeting Rooms. Rental of the restaurant and/or the board room for private parties shall be on the following basis : if rented by the Fort Worth Garden Club, Council of Fort Worth Garden Clubs, or Fort Worth Botanical Society, Inc . , there shall be no charge for the meeting rooms if the same are available . All other horticultural related clubs and garden clubs shall pay $25 . 00 for lunch time private parties and $50 . 00 for night time private parties . All other persons or groups that rent the restaurant and/or board room for private parties shall pay $250 . 00 for the restaurant and board room, for the board room only at night $100 . 00, for the board room only at lunch $50 . 00 . Payment of all of said meeting room rentals shall be direct to the Fort Worth Botanical Society, Inc . , with 10% of said payments being returned monthly to Lessee by the Fort Worth Botanical Society, Inc . Meeting rooms may not be rented out unless food service in such meeting room is provided by Lessee . No meeting room may be rented out where food service is not provided by Lessee . All night time use of the meeting rooms must include the Lessee providing gate guard security persons at the main gate at Lessee' s sole expense. All renting of meeting rooms by Lessee shall be without regard to the race, color, religion, sex, handicap status, national origin or familial status of the persons renting the same . 3 . 07 Dail Receipts. Lessee shall furnish direct to Lessor' s business manager each day, copies of the daily cash register tapes and copies of all catering contracts when the same are booked. 3 . 08 Late Charge. In the event Lessee pays any Base Rent, additional rent, or other monetary amount required under this lease more than fifteen (15) days after due date then Lessee agrees to pay 10% of said payment, in addition to said payment, as a late charge . This late charge shall not be construed as interest but is paid by Lessee to compensate Lessor for the expense of accounting for late payments and other collection efforts . ARTICLE IV. ACCOUNTING 4 . 01 Recordkeeping. Lessee covenants and agrees that Lessee shall keep and maintain a full, permanent and accurate set of books and records, kept in accordance with generally accepted accounting principles, of all sales of food, alcoholic and non- alcoholic beverages and merchandise and all revenue derived from the conduct of business in, at or from the leased premises from which gross sales can be fully and accurately determined, together with all supporting records, including all federal, state and local tax returns . For the purpose of permitting 4 verification by Lessor of any amounts due as rental, Lessee shall keep, retain and preserve for at least three (3) years after the termination of this lease, a general ledger, all sales slips, cash register tape readings, sales books, bank books or duplicate deposit books, and other evidence of gross sales pertaining to the leased premises . 4 . 02 Monthly Statement. Each month, on or before the 15th day of the month, Lessee shall furnish to Lessor a statement setting forth the amount of gross sales by Lessee for the preceding month. Such statements shall contain such itemization as Lessor shall reasonably require . 4 .03 Periodic Audits. Lessor may, upon reasonable notice to Lessee, request periodic audits throughout the term of the lease . Upon receipt of such notice, Lessee agrees to make its books and other records available to Lessor for purposes of such audit . If such audit shall disclose an error in actual Gross Sales to the extent of 20 or more when compared to the Gross Sales previously reported by Lessee for such period, then Lessee shall promptly pay to Lessor the cost of said audit in addition to the deficiency in rentals owing by Lessee as a result of such error. ARTICLE V. USE OF PREMISES AND OPERATIONAL COVENANTS 5. 01 Nature of Business and Services Provided by Lessee. Throughout the term of this lease, Lessee agrees to continuously occupy the leased premises for the purposes of operating a restaurant thereon (the "Restaurant" ) . Lessee also affirmatively covenants and agrees to provide the herein specified operations in a highly professional manner, and agrees that its failure to do so shall constitute a breach of and default under this lease . 5 . 02 Lessee shall Operate. At a minimum, Lessee shall provide restaurant food service continuously during the hours of 11 : 00 a.m. to 3 : 00 p.m. , Tuesday through Saturday, and 12 : 00 noon to 3 : 00 p.m. on Sunday, including holidays, except for Thanksgiving Day, Christmas Day, and New Year' s Day. Lessee may in its discretion provide extended hours of food service to the general public in excess of these minimums, provided, however, that said hours of operation shall not conflict with the hours of operation of the Botanic Garden, as established by the City of Fort Worth from time to time. Lessee covenants and agrees to provide alcoholic beverage service, limited to beer and wine, continuously during all hours of food service except as prohibited by state and local law. The restaurant may be used after established hours for private events; however, the individual or organization will be subject to additional rental fees as stated in Paragraph 3 . 06 above . 5 . 03 Alcoholic Beverage Service. Lessee shall obtain, at its sole cost, all necessary permits and licenses required for the sale of alcoholic beverages on the leased premises and Lessee 5 covenants and agrees that said permits and licenses will remain current and in effect throughout the term of this lease . Lessee and Lessor hereby mutually agree that they shall not at any time during the term of this lease take or permit to be taken or suffer any actions which are prohibited by the Alcoholic Beverage Control Authorities of the State of Texas, Tarrant County, or the City of Fort Worth, Texas, including, but not limited to advertising which violated any such laws, rules or regulations . Further, Lessee agrees that during all hours that the restaurant is open for business a manager who has successfully completed an alcohol awareness training program shall be on the premises to supervise employees who serve alcohol . Lessee shall maintain documentation verifying completion of such a course by each manager. 5 . 04 Menus, Food and Beverage. Lessee shall provide food and beverage service in accordance with such menus and other food and beverage requirements as shall be acceptable to Lessor and Lessee . Lessee may change menu prices at its sole discretion. Lessor and Lessee must mutually agree to all other changes to the overall menu concept and food and beverage requirement and presentation; provided Lessor' s approval shall not be required for daily specials or regular menu items which fall within a previously approved concept for menu and presentation. 5. 05 Special Event Catering. Upon request by Lessor, Lessee agrees to provide catering for special events on the leased premises, or elsewhere within the Botanic Garden, within the normal operating hours of the Botanic Garden, upon ten (10) days notice, and subject to such assured minimum sales volume as Lessee may reasonably require. 5 . 06 Equipment and Furnishings. Lessor shall supply the following food service equipment and furnishings required to operate the restaurant : furniture; refrigerator; food service equipment; decorations; ice machine; and eating utensils, glasses, and dishes . Lessee shall provide a dishwasher, cooking and kitchen utensils, and all other supplies and equipment required to operate the restaurant or for catering, including but not limited to all disposals, condiments and food, which items are specifically designated on the inventory attached hereto as Exhibit C. Lessee shall replace or replenish such items listed in the inventory with items of the same kind if reasonably available (or with items of like kind and quality if not) on an annual basis, beginning with the first anniversary of this lease, and upon termination of this lease, or sooner if needed for the proper operation of Lessee' s restaurant business . Lessee shall deposit on September 1, 1995, with Lessor the sum of Five Hundred Dollars ($500 . 00) to guarantee the replacement of the inventory as provided above and shall immediately restore said deposit to its original balance upon receipt of notice from Lessor that funds have been spent to meet Lessee' s obligations herein. 6 5. 07 Promotion. Lessee shall have the right to promote the restaurant through such media and in such formats as Lessor may approve. Lessor shall have the right to promote the restaurant in any manner it deems appropriate, but shall have no specific obligation to do so. 5.08 Restrictive Covenants . Lessee hereby agrees and covenants to refrain from the following: (a) no deep frying permitted on the leased premises; (b) The use of any styrofoam products in food service or storage; (c) Catering of event within the Botanic Garden without the express approval or authorization of Lessor. 5 . 09 Rights Not Exclusive. Lessee understands and agrees that it shall not have the exclusive right to provide food service within the Botanic Garden, except within the confines of the leased premises . 5.10 Compliance with Law. Lessee shall not use, suffer or permit the restaurant or any part of the leased premises to be used in violation of any law, ordinance or regulation of any governmental authority or in any manner that will constitute a nuisance or an unreasonable annoyance, or that might injure the reputation of Lessor or of the Fort Worth Botanic Garden, or that might in any way conflict with any of the terms and conditions set forth in the Concessionaire Agreement between Lessor and the City of Fort Worth, or for any extra hazardous purpose, or in any manner that might violate any law or render inoperative or increase the rate of any fire, rental or other insurance on the leased premises or its contents. Lessee shall promptly upon demand reimburse Lessor for any additional insurance premium charges for any such policy or policies caused by reason of Lessee' s failure to comply with the provisions of this section. The leased premises and every part thereof, and all areas to be maintained by Lessee hereunder, shall be kept by Lessee in a clean, sanitary and wholesome condition, free from any objectionable noise, odors or nuisances, public or private, including, without limitation, infestations of insects or rodents . Lessee, at its own expense, shall conform in every respect to all laws, ordinances and regulations now in force or that are enacted or adopted hereafter which affect its use or occupancy of the leased premises, and shall comply with all rules, orders, regulations, and requirements of the local Fire Rating Bureau, Health Department, Alcoholic Beverage Control Board and any other organization or governmental entities having jurisdiction over Lessee' s operations, including, but not limited to the Americans with Disabilities Act, Occupational Health and Safety Standards Act, and Comprehensive Environmental Response and Liability Act . 5 . 11 Staff. Lessee at all times shall keep and maintain an adequate staff of employees and an adequate stock of food, 7 beverages, condiments, merchandise and supplies in order to provide its services as required hereunder and to fully service the demands and requirements of customers of the restaurant . Lessee shall use as much of the leased premises as is possible and consistent with efficient, cost effective management of the restaurant to provide food and beverage services; Lessee shall use only so much of the leased premises as is reasonable and necessary in the ordinary course of business for storage and office purposes . Lessee shall use its best judgment, efforts and abilities to produce the maximum profit and volume of sales and to enhance the reputation and attractiveness of the restaurant . 5 .12 Operating Costs. Lessee shall pay all operating costs of the restaurant, including, without limitation, all employee payroll expenses, payroll taxes, social security payments, cost of goods, sales tax, license and permit fees, garbage and trash removal costs, utility costs and insurance premiums . 5 .13 Signs . Lessee shall not paint or place any sign, light, advertisement or awning in the Botanic Garden or on the leased premises without prior written consent of Lessor. 5 .14 Pick-Up of Refuse and Restaurant Equipment. Lessee shall not allow refuse, garbage or trash to accumulate in any area serviced by Lessee pursuant to this lease, except in receptacles designated by Lessor. All areas serviced by Lessee hereunder shall be cleaned by Lessee in a timely manner. If Lessee fails to do so, Lessor, after notifying Lessee of such conditions, and giving Lessee a reasonable opportunity to correct such conditions, shall have the right, but not the obligation, to clean such areas and to remove from such areas all refuse, garbage and trash and in such event Lessee agrees to pay Lessor' s actual cost of such cleaning and removal . Lessor may at all times and from time to time review Lessee' s cleaning schedule in order to assure Lessee' s proper maintenance and cleaning of the area serviced by Lessee . Lessee agrees to cooperate with Lessor in revising such schedule in a mutually agreeable manner if such objective is not being met . 5 .15 Deliveries . Lessor and Lessee shall use their best efforts to have all deliveries to and servicing of the leased premises done at times and in a manner so as not to disturb or inconvenience the operation of the restaurant or Botanic Gardens patrons or operations . All delivery trucks and other vehicles servicing the leased premises shall park or stand only near service entrances . ARTICLE VI . RIGHTS OF LESSOR 6 . 01 Access . Lessor and its agents and the City of Fort Worth staff shall have the right to enter the leased premises at reasonable hours during the hours that the restaurant is open for business for purposes of examining or inspecting the leased 8 premises, showing the leased premises to prospective tenants, emergency entry, or making such alterations, repairs, improvements or additions to the leased premises as Lessor may deem necessary or desirable; however, to the extent possible, Lessor will make additions at time when Lessee is not open to the public for business . In the event of an emergency endangering persons or property in the leased premises, Lessor may, if necessary under the circumstances, forcibly enter the leased premises, without liability to Lessee for such forcible entry and without affecting this lease. ARTICLE VII. FIXTURES, EQUIPMENT AND FURNITURE 7 . 01 Title to Property. All fixtures, equipment and furniture supplied by Lessor as stated on Exhibit B and all replacements and refurbishments thereof shall be and remain the sole property of Lessor, and Lessee shall not be entitled to any payment therefor upon the expiration or sooner termination of the term thereof . Lessee agrees to cooperate fully in the execution of all statements, including, without limitation, a UCC-1 informational statement filing, to acknowledge ownership of the fixtures, equipment and furniture by Lessor, if required. 7 . 02 Surrender. Upon expiration or sooner termination of this lease, Lessee shall surrender the leased premises including without limitation, all fixtures, alterations, changes, additions and improvements which have been made or installed from time to time either by Lessor or Lessee in or about the leased premises in as good condition as when received or installed, except for reasonable wear and tear. Upon such surrender, Lessee agrees to turn over to Lessor all personal property items listed on the attached Exhibit B. ARTICLE VIII. TRADE NAME The Lessee shall operate the restaurant on the leased premises during the term of this lease only under the trade name of "The Garden Restaurant and Catering" or such other trade name as shall be agreed to by Lessor and Lessee . Lessee shall not use or occupy the restaurant under any other trade name without Lessor' s prior written consent . Lessee shall not use the trade name "The Garden Restaurant and Catering" for any purpose or at any location not specified in this lease . Upon the expiration or earlier termination of this lease, Lessee agrees that the trade name "The Garden Restaurant and Catering" shall remain the sole property of Lessor. 9 ARTICLE IX. PERMITS AND LICENSES Lessee, at its sole cost and expense and in its name, shall obtain and maintain all necessary alcoholic beverage licenses and governmental permits required by law, ordinance or regulation of any governmental authority with jurisdiction over the operations of Lessee, pursuant to this lease . Prior to the commencement of the term of hereof and annually thereafter, Lessee shall provide to Lessor evidence of the receipt and renewal of each such license or permit . Lessee shall not transfer, assign, pledge, hypothecate, sublease or agree to transfer any such permit or license during the term of this lease. ARTICLE X. TAXES 10 . 01 Personal Property Taxes. In each tax year during the term, as additional rental, Lessee shall pay directly or reimburse Lessor for the full amount of any and all taxes, assessments, fees and other governmental charges, general and special, ordinary and extraordinary, of every kind and nature whatsoever, levied, assessed, imposed or otherwise payable with respect to the ownership or use of all personal property and equipment located in or about the leased premises . 10 . 02 Real Property Taxes. Lessor shall pay, before delinquency, all real property taxes, assessments, fees and other governmental charges, general and special, ordinary and extraordinary, of every kind and nature whatsoever, payable as and for real property taxes, which shall, during the term hereof, be levied, assessed, imposed upon or become due and payable with respect to the leased premises . 10 . 03 Lessee' s License Fees and Taxes . All separate license or permit fees and business taxes, including sales taxes, imposed or payable with respect to Lessee' s interest and operations hereunder shall at all times be kept current and in full force and effect and shall be paid by Lessee when due . ARTICLE XI. UTILITIES For each month during the term, as additional rental, Lessee shall pay directly or reimburse Lessor for the full amount of any and all utilities used upon the leased premises, including, but not limited to electricity, water, telephone and natural gas . The cost of said utilities attributable to the leased premises shall be as follows : Beginning with September 1, 1995, Lessee will pay an estimated $750 . 00 per month for electricity, gas, and water, for the initial six month term. For each successive six 10 month period, the monthly payment for electricity, gas, and water will be equal to the monthly payment for the previous six months plus an adjustment . The adjustment will be computed by subtracting 32, 335 kwh from the total kwh billed for each month of the previous six months in the period September through March and 63 , 475 kwh from the total kwh billed for each month of the previous six months in the period April through October. The remainders will be multiplied by the average cost per kwh for each month and totaled. The adjustment will be the total divided by six. It may be a positive or a negative number depending on actual electricity, gas and water consumption at the Rock Springs Building. ARTICLE XII. INSURANCE 12 . 01 General Liability Insurance. Lessee shall maintain at all times during the term of this lease a commercial general liability insurance policy written by an insurer approved by Lessor providing public liability (including both personal injury an death) and property damage insurance, insuring against any and all liability of the insured with respect to the leased premises or arising out of the maintenance, use or occupancy thereof for the other services to be provided by Lessee hereunder, with a minimum primary coverage of $500, 000 per occurrence and with a general aggregate and products aggregate of $1, 000, 000 each. Lessor and the City of Fort Worth shall be named as additional insureds in each such policy. The policy shall include Fire Legal Liability coverage at the $300, 000 limit . The City shall be the beneficiary of such coverage up to the deductible limit (currently $100, 000) on its Fire and Extended Coverage insurance policy. The Deductible per occurrence shall not exceed $1 , 000 . 12 . 02 Liquor Liability Insurance. Lessee shall maintain liquor liability insurance written by an insurer approved by Lessor, naming Lessor and the City of Fort Worth as additional insureds, with minimum coverage of $500, 000 per occurrence and a minimum aggregate of $500, 000 each. 12 . 03 Workers' Compensation Insurance. Lessee shall maintain Employer' s Liability Insurance and statutory Workers' Compensation insurance . 12 . 04 Notice of Cancellation. The failure of Lessee to keep in full force and effect any insurance required by this lease shall be deemed a breach of this lease . Each policy shall contain a provision that coverage may not be cancelled or reduced until at least thirty (30) days prior written notice has been given to Lessor and the City of Fort Worth. Lessee shall provide certificates of insurance to Lessor upon execution of this lease and upon demand at any time during the term of this lease but not 11 less frequently than every 6 months showing Lessor and the City of Fort Worth as named additional insureds on all of the insurance described in this Article XII . ARTICLE XIII. IMPROVEMENTS AND ALTERATIONS 13 .01 Lessor' s Improvements . Lessee accepts the premises and improvements made by Lessor in their current condition, as is, and acknowledges that they are suitable for its restaurant operations as contemplated in this lease . 13 .02 Lessee' s Improvements. Lessee shall make no alterations , additions, changes or improvements to the leased premises or any part thereof without the prior written consent of Lessor and the City of Fort Worth. Further, necessary and appropriate performance and payment bonds will need to be provided by Lessee and submitted to the City of Fort Worth for approval prior to the commencement of any such alterations, additions, changes or improvements . Any alterations, additions or improvements installed by Lessee shall be in conformity with a valid building permit and other permits or licenses as required by law, which shall obtained by Lessee at Lessee' s sole cost and expense . Copies of such permits or licenses shall be furnished to Lessor before the work is commenced. Lessor shall have no responsibility for alterations, additions or improvements installed by Lessee . Any alterations, additions or improvements installed by Lessee during the lease term shall become the property of the Lessor upon the expiration or earlier termination of this lease. 13 .03 Liens. Lessee shall promptly pay all costs and charges for all labor done or materials furnished for any work, repair, maintenance, improvements, alteration or addition provided by or on behalf of Lessee, and Lessee shall indemnify and hold Lessor and the City of Fort Worth free, clear and harmless of and from all liens and claims of liens and all other liability, claims, demands and causes of action that arise by reason of any work, repair, maintenance, improvement, alteration or addition provided by or on behalf of Lessee . ARTICLE XIV. MAINTENANCE AND REPAIRS 14 . 01 Lessee' s Obligation. Lessee, at its sole cost and expense, shall at all times keep, clean, maintain, repair, replace, renew and restore the leased premises including, without limitation, floor coverings, interior walls, furniture and furnishings, food preparation areas, restrooms, appliances, ceiling, doors, door frames, windows, entrances, signs, locks and closing devices . Necessary repairs and maintenance shall be done by Lessee within ten (10) days unless the nature of the repair 12 requires a period of longer than ten (10) days, whereupon a reasonable extension of time shall be given provided Lessee diligently pursues and completes the repair. 14 . 02 Lessor' s Obligations. Lessor, at its own cost and expense, shall keep, maintain, repair, replace, renew and restore all utility systems, meters, pipes, ventilation and exhaust systems, conduits, fire sprinkler systems, air conditioning systems, and heating equipment servicing the leased premises . Lessor shall also maintain the foundation, exterior walls, down spouts, gutters and roof of the leased premises . Lessor shall not be obligated to make any such repairs until after the expiration of ten (10) days written notice from Lessee to Lessor stating the need for such repairs or maintenance, except for those repairs of an emergency nature or creating a health hazard. If, Lessee reasonably believes an imminent danger exists to public health or safety, Lessee may make the necessary repairs to correct the dangerous condition. In such case, Lessor shall promptly, upon Lessee' s demand, reimburse Lessee for any reasonable sum expended in making such repairs . Lessor shall not be obligated to repair any damage caused by the willful or negligent acts or omissions of Lessee or Lessee' s agents and employees, and Lessee shall be responsible for repair of such damage . ARTICLE XV. DAMAGES AND DESTRUCTION 15 .01 Casualty. If the leased premises are damaged by fire or other insured casualty and insurance proceeds have been made available therefor to lessor, the damage shall be repaired by and at the expense of Lessor to the extent of the insurance proceeds within one hundred eighty (180) days after the amount of insurance proceeds payable with respect to such casualty have been made available to Lessor, subject to force majeure, to substantially the condition existing immediately prior to such casualty. Lessor shall have no obligation or liability to Lessee or otherwise to repair or replace any portion of the leased premises in the event of an uninsured casualty loss, damage or destruction. 15 . 02 Right of Lessor to Terminate. Notwithstanding any other provision of this lease, if in the sole judgment of Lessor, any major component of the leased premises is damaged or destroyed to an extent exceeding 25% or more of its then monetary value, whether such damage or destruction is insured against or not, then Lessor shall within a period not to exceed one hundred twenty (120) days after the insurance proceeds payable with respect to such occurrence of such damage or destruction have been made available to Lessor, notify Lessee of Lessor' s election either to terminate this lease, or at Lessor' s sole discretion, to repair or rebuild the leased premises to the extent provided in Section 15 . 01 above; provided, however, that if Lessor elects to repair or rebuild and has not substantially completed such repairs or rebuilding within one hundred and eighty (180) days 13 after the casualty, Lessee shall have the right to terminate this lease upon thirty (30) days notice to Lessor. In the event that Lessor elects to terminate this lease pursuant to the foregoing, such termination shall be made without liability of any kind on the part of Lessor to Lessee and Lessee shall pay all required rent and other charges and payments through the effective date of termination. ARTICLE XVI. DEFAULT BY LESSEE 16 . 01 Events of Default. Any one or more of the following events shall constitute an event of default : (a) Failure by Lessee to make any payment to Lessor or any third party as required by the terms of this lease; (b) Default by Lessee in the due, prompt and complete performance and observation of any covenant, agreement, or obligation of Lessee contained in this lease; (c) Failure by Lessee to occupy and provide full service from the restaurant on or after the commencement date or failure of Lessee to continuously operate in the manner required in this lease; (d) To the extent permitted by law: (1) the making by Lessee of any general assignment for the benefit of creditors; (2) the filing by or against Lessee of a petition to have Lessee adjudged insolvent or bankrupt; (3) the appointment of a trustee or receiver to take possession of any Lessee' s assets; (4) the attachment, execution or other judicial seizure of substantially all of the Lessee' s assets; or (5) the admission in writing by Lessee of its inability to pay its debts when due . (e) Lessee' s failure to obtain, maintain or operate under all permits or licenses required hereunder; (f) Lessor' s discovery of the material falsity of any financial statement of Lessee given to Lessor to induce it to enter into this lease; 14 (g) Lessor' s discovery of the material falsity of any audit or monthly sworn statement given to Lessor by Lessee under the terms of this lease; (h) Lessee' s vacation or abandonment of the restaurant at any time during the term of this lease . 16 .02 Remedies . In the event of a default by Lessee, Lessor shall give written notice of said default to Lessee by personal delivery or by certified mail to the leased premises, with the opportunity for Lessee to cure said default within five (5) days from date of mailing or personal delivery of said notice. In the event default continues after said five (5) days written notice, then Lessor shall be entitled to exercise any rights and remedies available to it under the laws of the State of Texas, including terminating this lease and the tenancy created hereby. In the event of termination of this lease by Lessor, Lessee shall remain liable for any rentals and damages which may be due or sustained by Lessor and all reasonable costs, fees and expenses including, but not limited to attorneys fees, costs and expenses incurred by Lessor in pursuance of its remedies hereunder, or in renting the leased premises to others from time to time. ARTICLE XVII . DEFAULT BY LESSOR 17 . 01 Opportunity to Cure. Lessor shall not be deemed to be in default in the performance of any obligation required to be performed by it hereunder unless and until it has failed to perform such obligation within thirty (30) days after receipt of written notice by Lessee to Lessor specifying wherein Lessor has failed to perform such obligation; provided, however, that if the nature of Lessor' s obligation is such that more than thirty (30) days are required for its performance then Lessor shall not be deemed to be in default if it commences such performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. 17 . 02 Extended Closure. If at any time during the term hereof, the Botanic Garden is not open to the public for any consecutive thirty (30) day period, Lessee may, at its option, terminate this lease by giving Lessor written notice of its intention to do so within thirty (30) days after the expiration of said thirty (30) day period. In that event, this lease will terminate on the date stated in the notice . ARTICLE XVIII . NATURE OF RELATIONSHIP Lessor and Lessee agree that the nature of the relationship between them is one of landlord and tenant, and no other. Nothing contained in this lease shall be deemed or construed to create the relationship of principal and agent or that of 15 partnership or of joint venture or of any association between Lessor and Lessee, and any intention to create a joint venture or partnership relationship between the parties hereto is hereby expressly disclaimed. Neither the method of computation of rental , nor any other provisions contained in this lease, nor any acts of the parties hereto shall be deemed to create any relationship other than that of landlord and tenant . Lessee shall maintain exclusive control, direction and management of its employees, and Lessor shall have no rights with respect thereto, except for Lessor' s right to enforce covenants of the Lessee as set forth in this lease . ARTICLE XIX. ASSIGNMENT Lessee may not assign or sublet the leased premises or any portion thereof, nor may Lessee assign, transfer or delegate to any person Lessee' s rights or duties with respect to the leased premises or the operation of the restaurant . ARTICLE XX. INDEMNIFICATION 20 . 01 Lessee' s Oblicrations. Lessee shall indemnify Lessor and the City of Fort Worth and their respective officers, directors, employees, agents, successors and assigns, against and hold them harmless from, and promptly reimburse them for, all payments of money (including fines, damages, legal fees, expenses, etc . ) occurring, suffered or incurred in connection with: (a) Any and all claims of damage or injury arising from Lessee' s use of the leased premises or operation of the restaurant thereon or from the conduct of Lessee' s business or from any activity, work, construction or thing done, permitted or suffered by Lessee in or about the leased premises or within the Botanic Garden, even where negligence of the Lessor and/or the City of Fort Worth is alleged; (b) Any and all claims arising from any claim, demand, tax, penalty or judicial or administrative investigation or proceeding for alleged breach or default in the performance of any obligation of Lessee hereunder including, without limitation, Lessee' s obligation to produce certain insurance as hereinafter provided; (c) Any and all litigation related to activities of Lessee in the leased premises or in the Botanic Garden where Lessee and/or the City of Fort Worth has been joined as a party therein; or 16 (d) Any other act or omission of Lessee or any of Lessee' s agents, employees, contractors, invitees or licensees . Lessee' s indemnification of Lessor and the City of Fort Worth hereunder shall in all respects survive the expiration or termination of this lease . ARTICLE XXI. GENERAL PROVISIONS 21 . 01 Notices. All rent shall be paid or mailed to Lessor at the address set forth at the first of this document, and all notices required herein shall be sent to the respective parties by certified mail, return receipt requested, if to the Lessor at said address or if to the Lessee at the address of the leased premises . 21. 02 Binding Effect. The provisions of this lease shall be binding upon and enure to the benefit of the parties hereto and their respective heirs, successors and assigns . 21 . 03 Interpretation and Place of Performance. This lease shall be construed under the laws of the State of Texas and is deemed by the parties to be performable in Tarrant County, Texas . 21 . 04 Partial Invalidity. If any one or more of the provisions contained in this lease shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision herein, and this lease shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 21. 05 Attorneys Fees . If either party engages an attorney to file suit in order to enforce any rights under this lease, the party against whom such action is taken agrees to pay the filing party the reasonable costs of necessary attorneys fees incurred therewith, provided the filing party prevails in such judicial action. 21. 06 Amendment. This lease may not be altered, waived, or otherwise modified, except where done in writing, and signed by Lessor and Lessee . 21. 07 Entire Contract. This instrument contains the entire agreement between the parties relating to the subject matter herein. There are no other verbal or written understandings, promises, agreements, or representations relating to the subject matter of this lease which have not been included herein, and this lease supersedes any and all other agreements, either oral , or in writing, between the parties hereto with respect to the subject matter herein. 17 sr EXECUTED this the day of September, 1995 . LESSOR: Fort Worth Botanical Society, Inc . �v � � � Mrs . Van Cox, President LESSEE: Arif Fazal "The City consents to this subcontract pursuant to Sec . 20 of City Secretary Contract No. 'f" - . .213.34) CITY YOFFOWORTH By: a son Assistant City Manager Date : /Y�9�9� APPROVED AS TO FORM AND LEGALITY: 1 f. Assistant City At rney Date : x ATTEST®BY jzs p �Etraot Authorization 1 8 Aa+A EXHIBIT ' A' u IL 17-4 IL IL v_ t L J � J 0 v b Z .AHC ",,"\ Y:'� ��• ~� of �,� Z.a t': •�.�i��•?tom-` pq OL im ILJ IF r ••�Dy , . z, � � N J J .:+•.,v~ ;�f':.~.:>•t°�Q"�?-�k4'{'�,,� "fit JT I Z W Z � ,tR:rryy,.� Q �• W cr 0 z Z Bxhi_b_i-t B FWBS RESTAURANT INVENTORY page 1 of 2 1 Ice Machine 1 Vent A Hood SS 1 Gas Range 1 3 Door Freezer SS 1 2 Door Refrigerator 1 2 Door Refrigerator SS 1 Work Table SS 1 Work Table SS on rollers 1 Dressing Table w/Glass Top 1 Mirror - Wrought Iron Frame 2 Upholstered Chairs 19 Chinese Flower Pots 81 Black Padded Chairs (dining) 13 Square Tables -36 X 36# plastic tops Shafer Grey Nebula 2 Round Tables 48" plastic tops Shafer #90 Nebula 2 Round Tables 36" no plastic tops 8 Square Tablecloths - 1 Round Tablecloths - 48" 7 Rattan Arm Chairs 1 Rattan Sofa 13 Leather Arm Chairs 4 Windsor Arm Chairs 1 Large Sideboard 1 Small Server 1 Refinished dining table 1 Chandelier 1 Set - Gas Logs and Andirons 1 Guest Book Stand 2 Garden Restaurant Sign_- Boards 1 Crowd Control Stations 2 Wooden High Chairs 4 Booster Chairs 1 CD Player - Sony 13 CDs 3 Large Round Folding Tables 1 Movie Screen 1 Oven Rack 2 Wooden Blinds - Board Room Exhibit B FWBS RESTAURANT INVENTORY page 2 of 2 Libbey Glasses - Duratuff 24 12 oz . 109 16 oz . 29 Beer Glasses 36 Red Wine Stainless Flatware 25 Plain Knives 125 Serrated Knives 124 Dinner Forks 124 Salad Forks 46 Soup Spoons 80 Teaspoons 1 Cheese Knife 13 Salt/Pepper Sets Lyric Table Service 48 Dinner Plates 126 Salad Plates 34 Soup Cups 14 Sauce Dishes 79 Saucers 47 Flat Soup Bowls 38 Small Oblong Plates 11 Large Oblong Plates 69 62 oz Cups 45 Glass salad Plates 6 Mugs 12 Ice Tea Glasses 66 Fluted Glasses 25 712 oz . Rock Glasses 20 Brown Trays 38 Grey Trays Miscellaneous teapots , sugar/creamers , vases , and mixing bowls Exhibit C (inventory of personal property belonging to Lessee) 1- 4 Compartment Shelf(metal) 1- 3 Compartment Shelf(metal) 1- Plate Holder(12 hole) 1- Comercial Dishwasher(rental) 1-Bus Cart Sm. 3 Compartment (metal) 6- Tables (round) 1-Fax Machine 1- Cash Register 2- Office Desk W/ 1 Chair 1 - Coke Machine 1-Bus Cart 2 Cmpartment(brown) 1- Soup Warmer 1- Wine Rack (ceiling mount) I- Wine Rack (48 bottle) 1- Coffee Maker 1- Trash Can (ss) 2- Flower Vases 1- Cart 3 Compartment (metal) 2- Shafing Dishes (round/silver) 7- Shafing Dishes (long) 2- Shafing Dishes (round/brown) 3- Silver Trays (large) 1- Shafing Dish (2 Qt) 1- Coffee Urn (sm./silver) l- Food Warmer (oblong/silver) 1-Flower Vase (silver) 1- Shelf 3 Compartment (large) 8- Food Crambels (thertnics) 2- Ice Chests (white)