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HomeMy WebLinkAboutContract 31738-EC1 CITY SECRETARYIN CONTRACT NO. C ESTOPPEL CERTIFICATE REGARDING ROOM BLOCK & MEETING SPACE AGREEMENT TO: The Prudential Insurance Company of America c/o Prudential Asset Resources, Inc. 2200 Ross Avenue, Suite 2500 Attn: Asset Management Department FROM: City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 Attn: City Manager RE: Loan No. 706108999; Room Block & Meeting Space Agreement by and between City of Fort Worth, Texas, a home rule municipality organized under the laws of the State of Texas (the "City"), and Omni Fort Worth Partnership, L.P. ("Omni"), effective April 27, 2005 (City Secretary Contract No. 31738) (the "Room Block Agreement") Pursuant to Section 8.16 of the Room Block Agreement, at the request of Omni the City is required to provide estoppel certificates when requested. Omni wishes to obtain certain financing from The Prudential Insurance Company of America ("Lender"). At Omni's request. the City is providing this Estoppel Certificate (the "Estoppel Certificate") to Lender and its successors and assigns. All capitalized terms in this Estoppel Certificate shall have the same meaning as set forth in the Room Block Agreement. The City hereby certifies and agrees as follows: 1. A true, correct and complete copy of the Room Block Agreement is attached hereto as Exhibit A. The Room Block Agreement is in full force and effect as of the date hereof, and has not been modified, changed, altered, amended or amended. 2. The Term commenced on April 27, 2005, and will expire on January 17, 2108 (the 99th anniversary of the Hotel's opening for business). 3. As of the date of this Estoppel Certificate, (i) neither the City nor, to the best of the City's knowledge, Omni has been or currently is in default under the Room Block Agreement. (ii) the City has not given Omni notice of any default under the Room Block Agreement, and (iii) to the best of the City's knowledge, no event has occurred and no condition exists which, with the giving of notice or the lapse of time or both, would constitute a default under the Room Block Agreement. 4. Omni has operated the Hotel in accordance with the Minimum Hotel Operating Standards and the requirements of Exhibit "A" to the Room Block Agreement, from the date such obligations arose through the date hereof. OFFICIAL RECORD 15207786v.1 CITY SECRETARY 02-22-13 P01 : 24 IN FT. WORTH, TX 5. To the extent permitted by law, this Estoppel Certificate shall be binding upon and shall inure to the benefit of the City. Omni and Lender and their respective successors and assigns. 6. The undersigned representative of the City is duly authorized and fully qualified to execute this instrument on behalf of the City, thereby binding the City, to the extent permitted by law, and no further authority, consent, action, resolution or other approval or documentation is necessary in connection with same (whether executive or legislative in nature or otherwise). ATTEST: CITY OF FORT WORTH / By: �/�.._.. )City Secretary ,� F�A�aa Name: Fernando Costa p�Q0000�000�► a� Title: Assistant City Manager Q. 070� Date: APPROVED AS TO FO �O00,0000" ICY T d a�`nan�n S -1164 By: Name: Peter Vaky Title: Deputy City Attorney M&C none required OFFICIAL RECORD 15207786v.1 CITY SECRETARY FT. WORTH, TX EXHIBIT A ROOM BLOCK AGREEMENT (Attached) 15207786v.1 CITY SECRETARY - CONTRACT No. I ROOM BLOCK& MEE T,NG SPACE AGREEMENT Between THE CITY OF FORT WORTH, TEXAS "CITY" and OMNI FORT WORTH PARTNERSHIP, L.P. "OWNER" DATED: April 27, 2005 ROOM BLOCK & MEETING SPACE AGREEMENT THIS ROOM BLOCK & MEETING SPACE AGREEMENT (the "Ageement") is made and entered into as of the 211A day of April, 2005 (the "Effective Date"), by and between THE CITY OF FORT WORTH, TEXAS, a municipal corporation organized and existing under the laws of the State of Texas (hereinafter called the "City") and OMNI FORT WORTH PARTNERSHIP, L.P., a Delaware limited partnership (hereinafter called the"Owner"). RECITALS WHEREAS, the City has recently redeveloped the community's convention assembly venue, known as the Fort Worth Convention Center (hereinafter called the "Convention Center"); and WHEREAS, to maximize the performance of the Convention Center and to encourage convention and tourism business in the City, the City desires to facilitate the development of first class, full service hotels in the vicinity of the Convention Center; and WHEREAS, Owner desires to develop a first class convention center hotel of approximately 600 rooms (the"Hotel") to be located next to the Convention Center; and WHEREAS, Owner has entered into a ground lease (the "Ground Lease") with the City for the Hotel Site; and WHEREAS, the City and Owner have entered into an Economic Development Agreement (the "Economic Development Agreement") under which the parties agreed to, among other things, enter into a Room Block Agreement pursuant to which specific percentages of the Hotel's standard guest rooms and suites will be reserved for specific periods of time for attendees, participants and planners of conventions and/or trade shows at the Convention Center, and WHEREAS, the City and Owner intend for this Agreement to satisfy the above-referenced obligation of the parties to the Economic Development Agreement; and WHEREAS, Owner shall grant to any successor and to any party which operates the Hotel on Owner's behalf (the "Qperator") the authority and responsibility to administer, on behalf of Owner and as the Owner's agent, this Agreement; and WHEREAS, the City and the Owner desire to enter into this Agreement for their mutual benefit; NOW,THEREFORE: AGREEMENT For and in consideration of the foregoing recitals and of the mutual promises, obligations, covenants and benefits herein contained, the City and the Owner contract and agree as follows: - I - ARTICLE I TERMS AND DEFINITIONS In addition to terms defined in the body of this Agreement, the following terms have the meaning set forth in this Article I. 1.01 Agreement. As defined in the preamble to this Agreement. 1.02 Amended Offer. As defined in Section 2.01(d) of Exhibit"A"to this Agreement. 1.03 Binding Contract. The contract between Potential Convention Center Customer and Owner and/or Operator that sets forth the terns and conditions under which the Owner/Operator will make an Event Room Block available to the attendees of a specific Citywide Event. I.04 Business Days. Each day other than a Saturday, Sunday, or any legal holiday recognized as such by the City. 1.05 City. As defined in the preamble to this Agreement (or its successor) acting by and through its City Manager or any Assistant City Manager. Unless provided otherwise in this Agreement, the interests of the City are represented by the Director in this Agreement. 1.06 City-Wide Event. A convention, trade show or other event held at the Convention Center during which a Potential Convention Center Customer, in anticipation of the event, requests that hotels in the City (including the Hotel) and the surrounding metropolitan areas provide, in the aggregate, a minimum of 700 guest rooms for one day or more while the event is being held. 1.07 Competing Convention Center Facilities. Competing State Convention Center Facilities and Competing National Convention Center Facilities, collectively. 1.08 Competing State Convention Center Facilities. Other convention centers providing convention center facilities in Texas that reasonably compete with the Convention Center from time to time. For purposes of this Agreement, Competing State Convention Center Facilities currently include the Dallas Convention Center, Austin Convention Center, San Antonio Convention Center, and Houston Convention Center. 1.09 Competing National Convention Center Facilities. Other convention centers outside of Texas that reasonably compete with the Convention Center from time to time. For purposes of this Agreement, Competing National Convention Center Facilities currently include the Charlotte Convention Center, Nashville Convention Center, Kansas City Convention Center, and Minneapolis Convention Center. 1.10 Convention Center. As defined in the preamble to this Agreement and better defined as the convention center facility located at 1201 Houston Street in downtown Fort Worth, Texas. 1.11 Convention Center Requirements. As defined in Section 4.02(A). - 2 - l.l 2 Current Offer. As defined in Section 2.01(e) of Exhibit "A"to this Agreement. 1.13 CVB. The Fort Worth Convention & Visitors Bureau or its successor. 1.14 Director. The senior executive of the Convention Center or that person's designee. 1.15 Economic Development Agreement. As defined in the Recitals of this Agreement. 1.16 Effective Date. The date set forth in the preamble of this Agreement. 1.17 Exhibit"A". Exhibit "A" is the first exhibit to this Agreement and specifies the functional procedures for administering the day-to-day requirements under the Agreement. 1.18 Event Niger A night during a City-Wide Event when the out-of-town participants of same would reasonably be staying overnight in the City. 1.19 Event Room Block. A block of guest rooms at the Hotel, offered to or reserved for the planners/attendees of City-Wide Events. 1.20 Exempt Inventory. The difference between (i) the actual number of guest rooms at the Hotel and (ii) the Maximum Event Room Block. 1.21 First Customer. As defined in Section 2.010) of Exhibit "A". 1.22 Ground Lease. As defined in the Recitals of this Agreement. 1.23 Hotel. As defined in the Recitals of this Agreement. 1.24 Hotel Site. The tract or parcel, whether one or more, of real property upon which the Hotel, or any part of it, is constructed. 1.25 Initial Offer. Initial Offer shall have the meaning ascribed to it in Section 2.01(b) of Exhibit "A". 1.26 Initial Offer Date. The date upon which the Operator is required to make an Initial Offer as described in Section 2.01(b) of Exhibit "A". 1.27 Managed Hotels. Full-service hotels that are generally comparable to the Hotel that are managed by the Operator or Owner or any entity affiliated with, controlled by, under common control with, or controlling Operator or Owner. 1.28 Management Agreement. The Agreement between Owner and Operator (if any) that sets forth, among other things, their respective responsibilities relating to the day-to-day operations of the Hotel and their respective responsibilities under this Agreement. 1.29 Maximum Event Room Block. The Maximum Event Room Block is as follows: (i) for a City-Wide Event whose first Event Night is scheduled to occur 36 calendar months or - 3 - more from the Initial Offer Date, the Maximum Event Room Block shall be 80% of the inventory of Suites plus 80% of the Standard Guest Rooms (rounded); and (ii) for a City-Wide Event whose first Event Night is scheduled to occur 24 months or more, but less than 36 months from the Initial Offer Date, the Maximum Event Room Block shall be 50% of the inventory of Suites plus 50 % of the Standard Guest Rooms (rounded). 1.30 Meeting Facilities. The rentable function space in the Hotel, together with all circulation and support space. 1.31 Minimum Hotel Operating Standard. The operating criteria (but not the facilities standards) necessary for a hotel property to receive either a Three Star rating by Mobil Travel Guide or the operating criteria (but not the facilities standards) necessary for a hotel property to receive a Four Diamond rating by the American Automobile Association, both of which are described and set forth in Exhibits "B-1" and "B-2", respectively, which Exhibits are attached hereto and made a part of this Agreement for all purposes. Owner shall at no time be required to demonstrate receipt or maintenance of such rating. 1.32 Nep-otiations Period. As defined in Section 2.01(8) of Exhibit "A" to this Agreement. 1.33 Notice or notice. Each and every communication, request, reply, or advice required or permitted to be given, made or accepted by any party to this Agreement to any other party to this Agreement, each of which shall be given in writing, and deemed received by the intended recipient, in accordance with Section 8.02 below. 1.34 Opening. The date upon which the Hotel opens to the public. 1.35 Qperator. As defined in the Recitals of this Agreement. In the event Owner enters into a Management Agreement, the Operator is the entity responsible for overseeing the day-to-day management of the Hotel and for administering the Owner's responsibilities under this Agreement. 1.36 Owner. Owner shall initially mean Owner as defined in the preamble to this Agreement and any successor entity. 1.37 Party. Either the City or the Owner, the parties to this Agreement. 1.38 Parties. Both the City and the Owner, the parties to this Agreement. 1.39 Potential Convention Center Customer. A person, entity, group or association (or any combination thereof) which is planning a City-Wide Event. 1.40 Rate Quote. Rate Quote shall have the meaning ascribed to it in Section 2.01(b) of Exhibit "A". 1.41 Room Block Request Notice. Room Block Request Notice shall have the meaning ascribed to it in Section 2.01(a) of Exhibit "A". - 4 - 1.42 Sales Representative. Sales Representative shall have the meaning ascribed to it in Section 2.01(a) of Exhibit "A". 1.43 Standard Guest Rooms. The Hotel's entire inventory of single-bay sleeping rooms. As of the Effective Date, Owner expects the Hotel to contain 581 Standard Guest Rooms. 1.44 Suite. Any guest room comprised of multiple guest room bays. As of the Effective Date, the Owner expects the Suite inventory to be comprised of 4 Hospitality Suites, 10 Executive Suites, 3 Luxury Suites and 2 Omni Suites (Presidential Quality). 1.45 Tax Abatement Agreement. That certain Tax Abatement Agreement dated concurrently herewith between Owner and the City. 1.46 Term. The Term of this Agreement shall be consistent with that set forth in Article V below. ARTICLE II REPRESENTATIONS 2.01 Representations of the City. The City hereby represents to the Owner that as of the Effective Date: (A) The City is a duly created and existing municipal corporation and authorized to carry on the governmental functions and operations as contemplated by this Agreement. (B) The City has the power, authority and legal right to enter into and perform this Agreement and the execution, delivery and performance hereof (i) have been duly authorized, will not, to the best of its knowledge, violate any applicable judgment, order, law or regulation, and (ii) do not, to the best of its knowledge, constitute a default under, or result in the creation of, any lien, charge, encumbrance or security interest upon any assets of the City under any agreement or instrument to which the City is a party or by which the City or its assets may be bound or affected. (C) This Agreement has been duly authorized, executed and delivered by the City and, constitutes a legal, valid and binding obligation of the City, enforceable in accordance with its terms except to the extent that (i) the enforceability of such instruments may be limited by bankruptcy, reorganization, insolvency, moratorium or other similar laws of general application in effect from time to time relating to or affecting the enforcement of creditors' rights and (ii) certain equitable remedies including specific performance may be unavailable. (D) The execution, delivery and performance of this Agreement by the City does not require the consent or approval of any person which has not been obtained. 2.02 Representations of the Owner. The Owner hereby represents to the City that as of the Eftective Date: - 5 - (A) The Owner is duly authorized and existing in good standing under the laws of the State of Texas, and is qualified to do business in Fort Worth. (B) The Owner has the power, authority and legal right to enter into and perform its obligations set forth in this Agreement, and the execution, delivery and performance hereof have been duly authorized, and will not, to the best of its knowledge, violate any judgment, order, law or regulation applicable to the Owner. (C) In the event Owner enters into a Management Agreement, Owner shall ensure that Operator has sufficient capital to perform its obligations under this Agreement at the time Operator needs to have sufficient capital. (D) This Agreement has been duly authorized, executed and delivered and constitutes a legal, valid and binding obligation of the Owner, enforceable in accordance with its terms. ARTICLE III SPECIAL OBLIGATIONS OF CITY 3.01 Convention Center Requirements. After the tenth (10`h) anniversary of the opening of the Hotel, the City shall own, operate and maintain the Convention Center in a manner consistent with the operation and condition of Competing Convention Center Facilities. If the City fails to maintain and operate the Convention Center in accordance with the foregoing requirement, the remedies set forth in Article VI will be available to Owner. City staff will request funding on an annual basis for the purpose of maintaining and improving the facility. Improvements to the Convention Center will include, but not be limited to, the purchase of new furnishings, fixtures and equipment as needed to keep the Convention Center in a marketable condition. In order to maintain consistency and accountability, City shall not assign this contract and the obligations listed herein to any other entity. The City agrees to price the Convention Center space competitively with Competing Convention Center Facilities and, in accordance with Section 8.09, the City further agrees to meet with the Owner from time-to-time upon Owner's request to consider bids that are competitive with convention center facilities in the non- public sector such as the Gaylord Texan Resort and Convention Center and the Adams Mark Hotel (Dallas). 3.02 Records. The City shall keep reasonable and accurate records relating to events held at the Convention Center. Upon request of Owner, Director must submit to Owner a summary of all applicable and actual potential bookings at the Convention Center in a manner that would enable a reasonable person to readily determine the future demand for rooms inventory at the Hotel. 3.03 Hotel Use of Convention Center Space. The parties acknowledge that the Hotel may book certain events which are outside the scope of this Agreement but nevertheless require the use of certain Convention Center space. In that regard, the City agrees to cooperate with the Hotel in providing Convention Center space to the Hotel, when space is available, following City's booking guidelines and at the established rates approved by the City Council. - 6 - ARTICLE IV SPECIAL OBLIGATIONS OF OWNER AND OPERATOR 4.01 Records. Owner shall keep reasonable and accurate records relating to the provision of services provided hereunder. Owner shall prepare and submit to the Director, with a copy to the CVB, on a monthly basis, a summary of all applicable actual and potential bookings at the Hotel under this Agreement in a manner that would enable a reasonable person to readily determine the future rooms inventory at the Hotel available to the City under this Agreement. 4.02 Hotel Standards. (A) To the extent Owner is operating the Hotel, Owner agrees to do so in accordance with the Minimum Hotel Operating Standard for a period of twenty-five (25) years from the date that Owner first opens the Hotel for business to the public. After such 25-year period, Owner's obligation to operate and maintain the Hotel in accordance with the Minimum Hotel Operating Standard shall continue only so long as the Convention Center is operated and maintained at a level sufficient to support a hotel operating in accordance with the Minimum Hotel Operating Standard and the City of Fort Worth continues to be a desirable convention and business destination that makes it economically feasible to operate the Hotel at the Minimum Hotel Operating Standard (collectively, the "Convention Center Requirements"). If the City determines in its reasonable judgment that the Hotel is not being operated in accordance with the Minimum Hotel Operating Standard as required by this Section 4.02(a), the City shall deliver written notice to Owner specifically setting forth the basis of the City's determination. If Owner disagrees with the City's determination or, after the expiration of the 25-year period, if Owner believes that the Convention Center Requirements have not been satisfied so as to obviate the requirement that the Hotel be operated at the Minimum Hotel Operating Standard, Owner shall submit the matter to arbitration for resolution in accordance with Section 6.04 hereof. If Owner fails to respond to the City's notice within ten (10) days after receipt, Owner will be deemed to have disagreed with the City's determination and the City shall submit the matter to arbitration for resolution in accordance with Section 6.04. Owner will have one (1) year after receipt of such notice (or after the arbitrator's final ruling, as applicable) to bring the Hotel up to the standards required to meet the Minimum Hotel Operating Standard. Owner shall deliver written notice to the City once Owner believes the Hotel has resumed operations in accordance with the Minimum Hotel Operating Standard. If the City does not agree with Owner's determination that Owner has resumed operating the Hotel in accordance with the Minimum Hotel Operating Standard, the City shall submit the matter to arbitration in accordance with Section 6.04 hereof within fifteen (15) days after receipt of such written notice from Owner. If Owner does not bring the Hotel to the Minimum Hotel Operating Standard within the required time period, then, as the City's sole and exclusive remedy, (i) if Owner's failure to resume operations in accordance with the Minimum Hotel Operating Standard occurs during the period the Economic Development Agreement and the Tax Abatement Agreement are in force, the City will have the rights available under the Economic Development Agreement and the Tax Abatement Agreement, or (ii) if Owner's failure to resume operations in accordance with the Minimum Hotel Operating Standard occurs after the Economic Development Agreement and Tax Abatement - 7 - Agreement have expired, the City will be entitled to actual damages as determined by an arbitrator appointed in accordance with Section 6.04 hereof, provided that the City must use its best efforts to mitigate any damages the City may suffer as a result of the Hotel not being operated in accordance with the Minimum Hotel Operating Standard. Notwithstanding anything to the contrary set forth in this Agreement, Owner will not have any obligation (express or implied) to continuously operate the Hotel during the Term. (B) The Hotel shall be branded as the Omni Fort Worth Hotel so long as Owner owns the Hotel. After Owner sells the Hotel as permitted under the Ground Lease, the Hotel may be branded as any other hotel so long as it is operated in accordance with the terms of this Agreement. 4.03 Designated Representative. At all times during the Term, Owner will ensure that there is a designated representative available and authorized by Owner to perform the obligations set forth in this Agreement. 4.04 Compliance with Obligations Set Forth in Exhibits. At all times during the Term, Owner shall comply with and (if applicable) shall cause Operator to comply with all obligations of Owner that are set forth in Exhibit "A" which is attached hereto and hereby made a part of this Agreement for all purposes. ARTICLE V TERM AND TERMINATION 5.01 Commencement of the Term of this Agreement. The Term of this Agreement shall commence on the Effective Date. 5.02 Termination of the Term of this Agreement. The Term shall continue until the 991h anniversary of the Hotel's opening for business. 5.03 Periodic Renovation/Restoration of Hotel and Convention Center. Upon at least 24 months' written notice from one Party to the other, Owner and City shall mutually determine a schedule by which Owner may close portions of the Hotel and City may close portions of the Convention Center for renovation and restoration. Except in the event of a casualty loss or a hazard to the public health, the Convention Center shall not be closed in its entirety and no more than three (3) floors of the Hotel shall be closed at one time. The Parties agree that during renovation or restoration of the Hotel, the number of rooms which are subject to this Agreement shall be proportionately reduced based on the number of rooms being renovated or restored. During such renovation or restoration, all reasonable efforts shall be made by each party to minimize disruption of events that are already booked at the Convention Center or recurring events at the Convention Center that the Parties anticipate are likely to be booked. ARTICLE VI EVENTS OF DEFAULT 6.01 Default. A default under the terms of this Agreement shall occur if any Party hereto shall materially breach any of the terms, conditions or covenants contained in this - 8 - Agreement to be performed or observed by it, and such Party does not remedy such default within thirty (30) days after Notice or, if the default is of such character as to require more than thirty (30) days to remedy, then if such Party fails to commence to cure and correct the default within said thirty (30) day period and thereafter prosecute such corrective action diligently and without interruption and complete the cure thereof within ninety (90) days unless extended by mutual consent following the original Notice of such default (an "Event of Default"). Any Notice of default shall be provided to Owner (and to Operator) and shall also be given to Owner's mortgagee (provided such mortgagee has provided Notice to the City and the Director of its name and address where Notices to it hereunder are to be sent). 6.02 Remedies. If an Event of Default is not cured as provided in Section 6.01 hereof, then the non-defaulting Party shall have the right, as its sole and exclusive remedies, to either (i)initiate and thereafter prosecute an action in equity for the specific performance of any covenants or obligations to be performed by the defaulting Party hereunder or (ii) recover from the defaulting party for actual (but not punitive, special or consequential) damages. As to a Party's right to obtain specific performance under this Agreement, each Party acknowledges and agrees that its covenants, obligations and representations as set forth in this Agreement are a material and fundamental inducement to the other Party's agreement to enter into this Agreement such that actual damages may not be an adequate remedy at law for the breach hereof and each Party recognizes and agrees that monetary damages could not be calculated to compensate the non-defaulting Party for any material breach by the defaulting Party of the covenants and agreements contained in this Agreement. Owner agrees to include in each Management Agreement a provision similar to the foregoing whereby the Operator makes such agreements to Owner with respect hereto and specifically agrees that the terms and conditions of this Agreement shall be incorporated as part of the terms and conditions of the Management Agreement; that the terms and conditions of this Agreement shall control in the event that there are any conflicting provisions in such Management Agreement; and that the City shall have the right to specifically enforce against the Operator the provisions of this Agreement. In addition, upon a finding by an arbitrator that Owner has committed a third Event of Default relating to Owner's willful failure to set aside rooms, and provided Owner did not cure the two prior Events of Default as provided in Section 6.01 above, then City will have the right to terminate this Agreement and the Economic Development Agreement, whereupon all further rights and obligations of the City and Owner under this Agreement and the Economic Development Agreement shall cease and be of no further force or effect. For purposes of this paragraph, each time Owner materially breaches any of the terms, conditions or covenants contained herein and fails to remedy same as set forth in Section 6.01 above shall be deemed a separate Event of Default. 6.03 Owner's Reservation of Rights. Notwithstanding anything to the contrary contained in this Agreement, this Agreement shall in no way limit Owner's or Operator's rights and remedies against a Potential Convention Center Customer resulting from such Potential Convention Center Customer's default under a Binding Contract with Owner or Operator. - 9 - 6.04 Arbitration. (A) 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 6.04. Each of the City and Owner 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 6.04; provided, however, the waiver in this Section 6.04 will not prevent the City or Owner 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 Owner 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 Owner 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. (B) if arbitration is required to resolve a dispute between the City and Owner, the City and Owner 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. (C) The arbitrator selected pursuant to Section 6.04(B) 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 (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. (D) 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. - 10 - (E) Any award made by the arbitrator shall be binding on the City, Owner and all parties to the arbitration and shall be enforceable to the fullest extent of the law. (F) 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 6.04(D) 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. 6.05 Injunctive/Ancillary/Emergency Relief. Notwithstanding any provision of Section 6.04 of this Agreement to the contrary, any party may seek injunctive relief or other form of ancillary relief at any time from any court of competent jurisdiction in Tarrant County, Texas. In the event that a dispute or controversy requires emergency relief before the matter may be resolved under the arbitration procedures of Section 6.04 above, notwithstanding the fact that any court of competent jurisdiction may enter an order providing for injunctive or other form of ancillary relief, the parties expressly agree that such arbitration procedures will still govern the ultimate resolution of that portion of the dispute or controversy not resolved pursuant to said court order. 6.06 Acknowledgment of Automatic Termination. The Parties acknowledge that Section 4.4 of the 380 Agreement provides that this Agreement and all other agreements entered into concurrently herewith by the City and Omni relating to the development of the Hotel will automatically terminate if the Completion Guaranty (as defined in the 380 Agreement) is not delivered to the City within the time period required under Section 4.4 of the 380 Agreement. ARTICLE VII NO LIABILITY FOR POTENTIAL CONVENTION CENTER CUSTOMER; OWNER RESPONSIBILITY TO CAUSE OPERATOR TO PERFORM 7.01 No Liability to City. In no event shall the City, CVB, or any other department or bureau of the City be in any way responsible or liable for the performance by any Potential Convention Center Customer of each customer's obligations under its Binding Contract with the Owner or Operator or for any charges, liabilities or other sums owed by, or liabilities of, such Potential Convention Center Customer (or for those for whom it blocks rooms) to either Owner or Operator. 7.02 Owner and Operator Responsibility. In the event Owner has entered into a Management Agreement, Owner shall cause Operator to perform all of the covenants and agreements of the Operator under this Agreement, and to cause the Operator to observe all of the covenants and agreements of Owner. Furthermore, Operator shall be directly responsible to the City for the performance of the Operator's obligations hereunder, and all actions, consents, decisions, elections, offers, and determinations made hereunder by the Operator shall be binding upon both Owner and Operator for purposes of this Agreement. - 11 - Owner may have delegated the performance of its obligations and rights hereunder to the Operator under the Management Agreement, but no such delegation shall release or relieve Owner from its obligation to perform, or cause to be performed, all of its covenants and agreements set forth herein. Furthermore, all consents, decisions and determinations to be made hereunder by the City shall be made by the Director (or the Director's designee) and no inference to the contrary shall be made because the word "City" is used in some places in this Agreement and the words "Director" is used in others. ARTICLE VIII MISCELLANEOUS 8.01 Severability. if any provision of this Agreement or any application thereof is held to be invalid or unenforceable by any court of competent jurisdiction for any reason, such provision shall be fully severable, and the remainder of this Agreement shall remain in full force and effect. This Agreement shall be construed and enforced as if such invalid or unenforceable provision had never comprised a part of this Agreement. 8.02 Notice. Any notice or other communication required or permitted to be given pursuant to this Agreement shall be given to the other Party at the following address: CITY: City of Fort Worth Attn: Director of Public Events 1201 Houston St. Fort Worth, TX 76102 with copies to: both the City Manager and the City Attorney, each at: City of Fort Worth 1000 Throckmorton Fort Worth, TX 76102 OWNER: Omni Hotels 420 Decker Drive, Suite 200 Irving, TX 75062-3952 Attn: General Counsel with copies to: Winstead Sechrest & Minick P.C. 1201 Elm Street, Suite 5400 Dallas, Texas 75270 Attn: T. Andrew Dow Any mortgagee, trustee or beneficiary under any mortgage or deed of trust on the Hotel may, by Notice to the parties set forth hereinabove, designate an address to which notices to it hereunder shall be sent. Any such party may from time to time by Notice as herein provided, designate a different address to which Notices to it shall be sent. Any such notice or communication shall be deemed given on the date so delivered or so deposited in the mail, unless otherwise provided herein. Either Party may change the above address by sending written notice of such change to the other Party in the manner provided - 12 - above. With the written consent of the receiving Party, notice may be given by facsimile transmission or electronic mail. 8.03 Amendments. This Agreement may not be amended or modified unless such amendment or modification is approved by the Fort Worth City Council and reflected in a written document that is signed by the Parties hereto. 8.04 Successors and Assigns. All covenants and agreements contained by or on behalf of the City in this Agreement shall bind its successors and assigns and shall inure to the benefit of the Owner and its successors and assigns. Owner may assign its rights, duties and obligations under this Agreement without the consent of the City so long as such assignee or successor to Owner assumes all the covenants and obligations of Owner under this Agreement in writing, as further provided in Section 8.11 of this Agreement. Upon any such assignment and assumption, Owner shall be relieved from all liability under this Agreement. 8.05 Exhibits, Titles of Articles, Sections and Subsections. The exhibits attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein, except that in the event of any conflict between any of the provisions of such exhibits and the provisions of this Agreement, the provisions of this Agreement shall prevail. All titles or headings are only for the convenience of the Parties and shall not be construed to have any effect or meaning as to the agreement between the Parties hereto. Any reference herein to a Section or Subsection shall be considered a reference to such Section or Subsection of this Agreement unless otherwise stated. Any reference herein to an exhibit shall be considered a reference to the applicable exhibit attached hereto unless otherwise stated. The headings in this Agreement are for purposes of reference only and shall not limit or define the meaning hereof. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall together constitute one and the same instrument. 8.06 Construction. This Agreement is a contract made under and shall be construed in accordance with and governed by the laws of the United States of America and the State of Texas. 8.07 Nature and Extent of Agreement. This Agreement contains the complete agreement of the Parties as to the matters contained herein. There are no oral or written conditions, terms, understandings or other agreements pertaining to the booking policy obligations of Owner, Operator and City that have not been incorporated herein. The laws of the State of Texas shall govern the validity, interpretation, performance and enforcement of this Agreement, without regard to conflicts of law principles. Tarrant County, Texas shall be the exclusive venue for all suits or other legal actions arising out of this Agreement. 8.08 Approval by the Parties. Whenever this Agreement requires or permits approval or consent to be hereafter given by any of the Parties, the Parties agree that such approval or consent shall not be unreasonably withheld or delayed. 8.09 Additional Actions. The Parties agree to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications as may be - 13 - necessary or appropriate, from time to time, to carry out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions and intent. In addition, the Parties acknowledge and agree that the successful operation of the Convention Center and the Hotel will be greatly affected by the future cooperation between the City and Owner. As an example, in the event the Super Bowl is awarded to the proposed Dallas Cowboys stadium in Arlington, City acknowledges the potential need by Owner to block rooms for the event, and that any events held in the Convention Center during that period would possibly need to be local in nature. The parties hereby agree to maintain a course of dealing with one another based on a high level of cooperation, integration and harmony between the Convention Center and the Hotel. In that regard, the Parties agree that representatives of the Hotel, the Convention Center and the CVB will meet on a not less than quarterly basis to share information with respect to the ongoing and future operation of the Convention Center and the Hotel in an effort to provide the level of cooperation that will lead to the success of both the Convention Center and Hotel. In addition, the parties acknowledge that the rights and the obligations of the Parties under this Agreement may need to be modified from time to time to conform to the then current industry standards. Each party agrees to be reasonable in connection with any request by the other to revisit provisions of this Agreement which may no longer comport with the then current industry standards, including pricing of both Hotel rooms and Convention Center meeting space. City and Owner agree to deliver to each other on at least an annual basis with their capital improvement plans for the Convention Center and Hotel, respectively, and allow the other party to review and comment on same. 8.10 Enforcement. The City Attorney or his or her designee may enforce all legal rights and obligations under this Agreement. The Owner shall provide to the City Attorney all documents and records that the City Attorney requests to assist in determining the Owner's compliance with this Agreement, with the exception of those documents made confidential by federal or state law or regulation. 8.11 Transfer of Owner's Interest. In the event of the sale, assignment or transfer by Owner of its fee interest in the Hotel or Hotel Site (if any) (other than a collateral assignment to secure a debt of Owner) to a successor in interest, any successor to Owner hereunder shall in all respects be obligated to honor any contract or agreement previously executed with a Potential Convention Center Customer and shall be bound by any outstanding Initial Offers or Amended Offers, each Room Block Request Notice and the Event Rate then in effect. 8.12 Termination of Operator. In the event that Owner shall terminate the Operator for any reason or should the rights of the Operator under the Management Agreement for the Hotel expire for any reason, Owner shall be obligated to secure the written consent and agreement of any replacement Operator to all of the terms, provisions and conditions set forth herein; provided, that, a failure by the Owner to do so shall in no way release or relieve Owner or any Operator from performing the obligations of the Owner and Operator hereunder. 8.13 Owner and Operator Responsibility under the Binding Contract. Nothing contained in this Agreement shall relieve the Owner and/or Operator (or their respective successors) from the contractual obligations to provide services to a Potential Convention Center Customer under a Binding Contract, irrespective of whether this Agreement has been terminated at the time services are to be rendered or whether this Agreement is terminated after the effective date of the Binding Contract but before the time services are to be rendered. - 14 - 8.14 Gender; Singular and Plural. As used herein, the neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the masculine and neuter, and each includes a corporation, partnership or other legal entity when the context so requires. The singular number includes the plural, and vice versa, whenever the context so requires. 8.15 Binding Effect. Subject to express provisions hereof to the contrary, this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, successors and assigns during the Term hereof and during any extensions or renewals of said Term. 8.16 Estoppel Certificate. Within twenty (20) days after receipt of written request therefor by another Party hereto, the other Party shall execute and deliver to the requesting Party (and to such other person as the requesting Party may designate) a statement reasonably satisfactory to the requesting Party certifying any facts that this Agreement is unmodified and is in full force and effect (or if there have been modifications, stating that this Agreement is in full force and effect as modified), that the requesting Party is not in default hereunder (or stating the nature of any alleged default), that there are no defenses or offsets to the Agreement claimed by the other Party, and further certifying any matters reasonably requested by the requesting Party. A failure by a Party to execute, acknowledge and deliver upon request the certified statement described above within twenty (20) days from receipt of such request shall constitute acknowledgment by the Party to whom the request is directed to all persons entitled to rely on the statement that this Agreement is unmodified and in full force and effect and that no default by the requesting Party exists hereunder. Notwithstanding anything to the contrary set forth in this Section 8.16, neither Party will be required to execute such an estoppel certificate more often than two (2) times in any twelve (12)-month period. 8.17 Superiority of Agreement. The provisions of this Agreement shall constitute a restrictive covenant running with the Hotel Site binding upon each owner thereof, and any and all Operators or managers of the improvements thereon, and each and every other person or entity claiming or holding any interest in the Hotel Site, shall inure to the benefit of the City, and shall apply to any hotel now or hereafter located on the Hotel Site, or any portion thereof, but only so long as this Agreement is in effect. 8.18 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 herein 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. 8.19 Casualty. In the event of a casualty loss to the Hotel which causes all or a portion of the Hotel to close pending repair or reconstruction, any failure by Owner to perform its obligations hereunder as a direct result thereof shall be waived until such time as the damage has been repaired, provided Owner agrees to use commercially reasonable and diligent efforts to effectuate such repair. 8.20 Memorandum of Agreement. Owner and City shall execute for recordation in the Real Property Records of Tarrant County, Texas a memorandum of this Agreement in substantially the form of Exhibit "C" attached hereto. At the request of either party, and - 15 - provided the Term of this Agreement has expired or this Agreement has otherwise terminated, the other party shall execute and deliver for recordation in the Real Property Records of Tarrant County, Texas a termination memorandum evidencing a release of the Hotel Site of any encumbrance under this Agreement. [EXECUTION PAGES FOLLOW] - 16 - EXECUTED as of the last date indicated below: CITY OF FORT WORTH: OMNI FORT WORTH PARTNERSHIP, L.P., a Delaware limited partnership By: Omni Fort Worth GP Corporation, By. Z69 a Delaware corporation, J"siant is Its general partner A Cit anager Date: April 27, 2005 By: , /;j Name• Scott Johnson APPROVED AS TO FORM AND Title: Vice President LEGALITY: Date: April 27, 2005 By: Peter Vaky Assistant City Attorney M&C: 0-20 6 2 0 3-2 9-OS Attested By: Marty Hendrix City Secretary - 17 - STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Scott Johnson, Vice President of Omni Fort Worth GP Corporation, the sole general partner of Omni Fort Worth Partnership, L.P., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of Omni Fort Worth Partnership, L.P. and that he executed the same as the act of Omni Fort Worth Partnership, L.P. for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFF CE this filay of April, 2005. BETTY J.TANNER SAY COMMISSION EXPIRES otary P 017n and for the State of Texas =,. March 31,2006 Pl STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Joe Paniagua, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he executed the same as the act of the City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of April, 2005. BETTY J.TANNER otary P lic for the State of Texas o' My COMMI8SION EXPIRES Match 31,2006 - 18 - EXHIBIT"A" SECTION 1 SERVICES 1.01 Services. The Owner, shall provide convention room block services in accordance with this Exhibit "A". SECTION II COMMITMENT TO PROVIDE CONVENTION ROOM BLOCK SERVICES 2.01 Booking Procedure. During the Tenn, the City, acting through the Director shall require the Operator, as the Owner's representative, to offer an Event Room Block to Potential Convention Center Customers in accordance with this Agreement. The right to require that the Owner/Operator so offer the Event Room Block will be exercised in accordance with the procedures outlined below. (a) A management, sales or booking representative of the City, the Director or any of their respective designees, including the CVB (each a "Sales Representative"), will notify the Owner/Operator that a Potential Convention Center Customer is seeking offers from local hotels to accommodate, among other needs, the guest room needs of the Potential Convention Center Customer for a City-Wide Event (the "Room Block Request Notice"). The Room Block Request Notice will: (i) identify the Potential Convention Center Customer, (ii) set forth a documented history of the group's room block events for the most recent three year period including a comparison of the number of rooms blocked and the actual number of rooms actually used (provided the same is generally available to the City or CVB), (iii) specify each specific date for which the Potential Convention Center Customer will require blocks of guest rooms (including those dates commonly known as "move in" and "move out" dates); and (iv) specify the number of guest rooms the Potential Convention Center Customer is seeking to block on each of the specific dates. The Room Block Request Notice will be communicated to the Owner/Operator in the same manner as such notifications are customarily communicated to other hotels by the Sales Representative. (b) Unless the deadline is specifically extended in writing by the Sales Representative, within five (5) Business Days after Owner/Operator's receipt of the Room Block Request Notice, the Owner/Operator shall deliver to the Potential Convention Center Customer (with a copy to the Sales Representative and the Director) an initial written offer in response to the Room Block Request Notice (the "Initial Offer"). In the Initial Offer the Owner/Operator will (i) offer, for each specific date that the Potential Convention Center Customer requires a block of guest rooms as specified in the Room Block Request Notice, an Event Room Block equal to the actual number of the guest rooms in the Room Block Request Notice for each specific date, less any previously offered Event Room Blocks under this Agreement for other City-Wide Events covering such dates, which offers have either been accepted or are still outstanding, and (ii) quote a specific room rate for both a standard single and double room (the "Rate Quote"). The amount of the Rate Quote in the Initial Offer will be at the Owner/Operator's sole discretion and Owner/Operator will make a quote which is reasonably consistent with the then current economic climate, the demand for rooms during the relevant Event Nights and the rates then being charged by other comparable downtown Fort Worth hotels, taking into account reasonable differences in quality, amenities, location and suitability. In all Exhibit"A" Page 1 respects, the Initial Offer shall be structured in accordance with Owner/Operator's normal booking policies as described in Section 2.01(e)below. (c) After reviewing the Initial Offer, the Sales Representative may consult with the Owner/Operator regarding the Rate Quote contained in the Initial Offer. If at any time within ninety (90) calendar days from the date the Director receives the Initial Offer, the City, the Director or the Director's designee (which may include the CVB) determine, in their sole discretion, that it might be in the City's best interest to compel the Owner/Operator to offer the Potential Convention Center Customer an alternative rate structure, the City or CVB may, after consultation with the Owner/Operator and within the ninety (90) calendar day timeframe, elect to ask Owner/Operator to consider (which election shall be communicated by Notice from the Director or the CVB to the Owner/Operator) offering to the Potential Convention Center Customer a rate lower than the rate in the Initial Offer. Within 3 business days following receipt by Owner/Operator of such notice from the City or CVB, Owner/Operator shall provide the City and the CVB with a written response to such a request, either agreeing or refusing to offer a rate to the Potential Convention Center Customer that is lower than the rate in the Initial Offer, which response shall be in Owner's sole and absolute discretion. (d) If, pursuant to Section 2.01(c) of this Exhibit"A", Owner/Operator agrees to offer the Potential Convention Center Customer a rate lower than the rate in the Initial Offer, Owner/Operator shall amend the Initial Offer by substituting an alternative rate (the "Amended Offer") and deliver such Amended Offer to the Potential Convention Center Customer (with a copy to the Sales Representative and the Director) within two (2) Business Days following the date of Owner/Operator's written response to the City's and/or the CVB's request under Section 2.01(c) of this Exhibit "A". (e) In negotiating a Binding Contract, Owner/Operator's customary booking policies, including policies relating to acceptance deadlines, contracts, advance deposits and cancellation shall be applied, provided that (i) these policies shall adhere in all material respects to the general customs employed by the Owner/Operator at its Managed Hotels or otherwise be consistent with local market practices and (ii) Operator has provided Director with such booking policies as modified from time to time. Notwithstanding the foregoing, the Potential Convention Center Customer shall have no more than (120) calendar days from the date the Current Offer is received to (i) verbally accept the Current Offer and (ii) negotiate and execute a Binding Contract. (The term "Current Offer" is defined as the most recent of either the Initial Offer or the Amended Offer.) Upon verbal acceptance of the Current Offer, Owner/Operator shall promptly begin negotiating a Binding Contract with the Potential Convention Center Customer. (f) if a Potential Convention Center Customer has not (for any reason other than Owner/Operator's breach of their obligations) executed a Binding Contract with the Owner/Operator within one hundred twenty (120) days following the date of the receipt of the Current Offer, then such offer will expire, whereupon the Owner/Operator shall have no further obligation to the City or the Potential Convention Center Customer in regard to such City-Wide Event under the Current Offer; provided, that, if such offer expires on a date that is more than twenty-four (24) months in advance of the City-Wide Event's first Event Night, nothing in this Agreement shall prohibit the City from issuing a new Room Block Request Notice for such City- Wide Event. Exhibit"A"— Page 2 (g) During the "Negotiations Period" (defined as the date the Initial Offer is made until the earlier of(i) the Current Offer expiration or(ii)the date the Potential Convention Center Customer formally rejects/accepts the Current Offer) the Owner/Operator shall consider the Event Room Block from an inventory management/reservations standpoint as if it were booked under a Binding Contract and shall not agree to reserve any amount of guest rooms for other customers that would impede the ability of the Hotel to accommodate the Event Room Block under the Current Offer. Notwithstanding the foregoing, if another Potential Convention Center Customer seeks,during the Negotiations Period,to reserve an Event Room Block on one or more of the Event Nights being held for the first Potential Convention Center Customer ("First Customer") pending the conclusion of the Negotiations Period, Owner/Operator shall be permitted to accelerate the Current Offer expiration date of the First Customer to a date that is seven (7) calendar days from the date that Owner/Operator notifies First Customer, in writing, of such acceleration. Owner/Operator's ability to accelerate the Current Offer expiration date is acknowledged by the parties to be part of the Owner/Operator's customary booking policies. (h) During the Negotiations Period, the Event Room Block offered in the Initial Offer shall not be modified downward by virtue of the fact that the time parameters that dictate the release of rooms under the definition of Maximum Event Room Block expire. If, for example, the Event Room Block offered in the Initial Offer was for 80% of the Hotel's Standard Guest Rooms and the 36 month cut-off period expires during the Negotiations Period, the Event Room Block under negotiation shall continue to be 80%of the Standard Guest Rooms. (i) If a Potential Convention Center Customer that has executed a Binding Contract provides written notice to Owner/Operator that the Potential Convention Center Customer is terminating the Binding Contract, and the date of receipt by Owner/Operator of such notice is less than twenty-four (24) months from the first night reserved for the Potential Convention Center Customer's Event Room Block, then, provided that Owner/Operator has provided the City with advance written notice of such termination, Owner/Operator will have no further obligation to the City in regard to such Event Room Block and Owner/Operator shall not be obligated to extend the rooms to another Potential Convention Center Customer hereunder. If such notice of termination is given on a date that is twenty-four (24) months or more before the first Event Night, the City may require that Operator extend the rooms to another Potential Convention Center Customer in accordance with the provisions hereof. The City recognizes that under the Owner/Operator's contract with the Potential Convention Center Customer, Owner/Operator may be entitled to collect cancellation fees from such Potential Convention Center Customer and the City hereby acknowledges and agrees that such fees shall be the sole property of Owner/Operator. Similarly, the Owner/Operator recognizes that under the City's contract with the Potential Convention Center Customer, the City may be entitled to collect cancellation fees from such Potential Convention Center Customer and the Owner/Operator hereby acknowledges that such fees shall be the sole property of the City. In addition, Owner/Operator agrees that although this Agreement requires Owner/Operator to offer and reserve Event Room Blocks to Potential Convention Center Customers, the City, the CVB, and their officers and employees shall not be liable to Owner or Operator for damages of any kind whatsoever, including, without limitation, damages for lost profits or lost business, as a result of any breach or termination of a Binding Contract by a Potential Convention Center Customer. 0) Owner/Operator will reserve the inventory of rooms required in an Event Room Block for purchase by the ersons attending a given Potential Convention Center Customer's event until the thirtieth (30` ) calendar day preceding the first night reserved for the Potential Exhibit"A"- Page 3 Convention Center Customer's Event Room Block, after which time any unbooked rooms will be released from the obligations under this Agreement (but not necessarily from the obligations under the Binding Contract) and may be rented without any restrictions imposed by this Agreement. If within ninety (90) calendar days of the first night reserved for the Potential Convention Center Customer's Event Room Block, the number of rooms actually booked is less than the number of rooms blocked, Owner/Operator shall be permitted at any time to release some or all unbooked rooms without the consent of the City, provided (A) that the Potential Convention Center Customer has granted its written consent to do so and (B) in so doing, Owner/Operator shall not waive any cancellation rights to which the Hotel may be entitled. (Under this Section 2.01(i), the term, "booked," means there is a room reservation on file that is guaranteed (i) by time of arrival, (ii) by deposit or (iii) by credit card as required under the Hotel's normal reservation policy.) Furthermore, if the group history of the Potential Convention Center Customer reflects a pattern whereby the block of rooms reserved by such customer is greater than the actual number of rooms used, then the Owner/Operator, shall have the right to only block such number or rooms which Owner/Operator, in the exercise of its professional judgment and based on such history of the customer, believes will be adequate to accommodate the number of rooms which will be actually used by such customer; provided, that such decision shall not release or relieve the Owner/Operator from, at Owner/Operator's own cost, providing other comparable guest accommodations if the number of rooms so blocked by Owner/Operator actually is not adequate to satisfy the actual use of rooms by the Potential Convention Center Customer. (k) There are two categories of inventory that, under this Agreement, may be reserved by Owner/Operator, without restrictions imposed by this Agreement. The first category is Exempt Inventory. Exempt Inventory is free from any City-imposed booking restrictions under this Agreement and the Owner/Operator may, at its discretion, take reservations for up to the amount of the Exempt Inventory for any given day in the future. The second category is inventory that has not been reserved under this Agreement as of any date that is less than twenty- four (24) months from the start of any City-Wide Event. Any room inventory meeting these criteria shall be available for rental by the Owner/Operator without restrictions imposed by this Agreement. (1) Notwithstanding anything to the contrary set forth in this Agreement Owner/Operator shall have the right to request a reduction of the rooms required to be reserved by Owner herein up to two (2) times per calendar year (that is to say, Owner/Operator may request the right to book rooms during City-Wide Events in a manner which would not allow Owner/Operator to satisfy the Maximum Event Room Block twice during any calendar year during the term of this Agreement). Within ten (10) days after receipt of such written request from Owner/Operator, the City shall either approve or disapprove such request, but the City's approval shall not be unreasonably withheld, conditioned or delayed. If the City does not respond in writing within such ten (10) day period, Owner shall send a second written notice to the City. If the City fails to respond in writing within five (5) days after receipt of such second notice, the City will be deemed to have approved such request. In addition, if Owner/Operator receives a request for a room block from a prospective group more than thirty-six (36) calendar months prior to such groups' first night stay at the Hotel, Owner/Operator shall have the right to request the City to grant relief from this Agreement with respect to the Maximum Event Room Block and the City must be reasonable in considering such request from Owner/Operator. (in) Notwithstanding the foregoing, if a Potential Convention Center Customer has a Exhibit"A"—Page 4 documented history of causing material property damage in connection with group events or of poor credit, then Owner/Operator shall have the right to decline to accommodate such customer hereunder upon provision of written notice to the Director given within five (5) Business Days following the date of the Room Block Request Notice, which notice includes a reasonable and specific basis for the Owner/Operator's conclusions, which conclusions are subject to the Director's reasonable challenge and will be kept confidential to the full extent of the law, by the Director. 2.02 Confidentiality. Subject to its obligations under applicable law, the City or CVB will not disclose any Initial Offer or Amended Offer to any person or entity other than its employees, counsel and other consultants, or in connection with any legal proceeding (or alternative dispute resolution procedure), all of whom shall be advised of the confidentiality provisions hereof and agree to the same. Confidentiality issues may be subject to Texas Open Records laws. SECTION III OTHER COOPERATIVE PROGRAMS 3.01 Cooperative Advertising_ The Owner, at no cost to the City, will cooperate with the City and or the CVB in connection with joint marketing efforts directed by the City/CVB. 3.02 Site Selection Assistance. The Owner, at no cost to the City, will periodically assist the City and CVB with its convention marketing efforts by providing, subject to availability, mutually acceptable complimentary or discounted-to-cost rooms and facilities to event planners conducting site visits and or participating in familiarization trips. Exhibit"A"-Page 5 EXHIBIT "B-1" MOBIL TRAVEL GUIDE THREE STAR CRITERIA Lodging Crltedo and Expectations 'Note The tbdowirhg criterle are suggested crNede of what a guest can generally expel at eech star Aevei. They are not khaWually mandated nor are they 6mRed to those demo ds/ed ttebw. These are merely a representative sampdng of the hundreds of points oovered during our inspectfon process. Additionally,at each level the bilging establishment is MOW to meet or exceed the requbemera of the previous star raft.For example,a rwo-Star hotel meets the criteria expectatiahs of a Two-Star hotel as Hoed as the One-Star hotel. A Three- Star hotel meets the crftria expectations of a Three-Star hotel,a rwo-Star hotel and one-Star hotel,and so forth. *Ont-Star Lodging Establishment is a clean, comfortable,and reliaWe,limited servioca establishment Courteous service and good housekeeping,including dally maid service,are standard. Characteristics of a One-Star Hotel or Motet include; Services Detaa -Staff Is well-groomed with professional,neat end well-maintained attire_ -M staff encountered are pk msant and professional in their demeanor. -Coffee,hot tea and breakfast pastry are available on-site(could be In400rn)_ * * Two-Star Lodging Establishment provides dean,comfortable and reliable accommodations along with expanded amenities and services,such as a full-service restaurant on-site.Guests at a Two-Star Hotel,Resort or Inn can expect to find all of the qualities for a One-Star Hotel,or Resort plus the fdlowing characteristics: Services DetaN •Front desk staff are articulate,smile and make eye contact. Staff is attired in well-fitting,consistent uniforms. Baggage assistance is avariabie on request. The front desk is staffed twenty-four hours Restaurant on-site serving three meals daily. If Inn,twenty-four hour guest service available on-call A * * Thre"tar Lodalnu Establishment is an establishment that is well-appointed,with full services and expanded amenities Guests at a Three-Star Hotel,Resort or Inn can expect to find all of the qualities for a Two-Star Hotel or Resort plus the following characteristics: Services Detail Turndown service is available upon request. Valet parking is available_ Baggage assistance is automatic. -Same day laundry and dry cleaning avariable frve days/week. Complimentary newspapers are delivered to morn automatically. Complete room service is available. workstation Is avagatile where guest can access Internet. Basic fitness equipment is provided,r-ocluding treadmills and cycles. If inr•,, restaurant on-site which serves hA breakfast is available- If Resort,complimentary newspapers(or newstaxes)are delivered to room automatically Exhibit`•B-1"-MOBIL TRAVEL GUIDE THREE-STAR CRITERIA - Solo Page EXHIBIT"B-2" AMERICAN AUTOMOBILE ASSOCIATION FOUR DIAMOND CRITERIA c t Aoaepted 21 hours,w w at property cc ftot h i a Gtnbaf tMerlfp" Swrr pronvft arwered%4f♦*fr*tiros rinps Vft m and sincaY jpw*p Oi7tfad Raaarr somal oflars rate dmcW%avalablt morns,taclues,and sendoes Reearvatbnist pMee date.of enroft or 7rte r�pMsf propsly Is a pre a Reesrvaliarrel cabs.regishok inkxmssion Rasonvetladst w VWW deposit and concsis6on Reeorvatiorret spielm unusual psyment options r ' Resenvafonfat revtswe reservadon rtquasl Rassmalonid ylvas confirmation number or Canit-1 ^urns ReservWhonisl warnnly and sinceray lhenits `a 9L"for Cdit Paw,ve$w, Ist addresses quest by rams durbv CbGN LNlowmed ettandart promptly opens to Car door and provides a warm and sincere welcome % tTi[y + .r`. •,i r.. 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L. •r ��i.'S�L i1.F, tIL L.i � EXHIBIT "C" MEMORANDUM OF AGREEMENT This Memorandum of Agreement (herein, the "Memorandum") is executed by and between the CITY OF FORT WORTH, TEXAS, a Texas home-rule city (the "City") and OMNI FORT WORTH PARTNERSHIP, L.P., a limited partnership organized and existing under the laws of the State of Delaware ("Omni"). RECITALS: A. The parties hereto have made and entered into that certain Room Block and Meeting Space Agreement (as described and defined hereinbelow). B. The parties desire to record a Memorandum of Agreement to provide notice to third parties of the Room Block and Meeting Space Agreement. AGREEMENTS: NOW, THEREFORE, the City and Omni do hereby make and enter into this Memorandum for the purposes described above: 1. Description of Agreement. The City and Omni have made and entered into that certain Room Block and Meeting Space Agreement (as same may be hereafter renewed or amended, the "Agreement") dated effective as of April_, 2005, which Agreement sets forth certain covenants of the City relating to the City's operation of the Convention Center located on the land described on Exhibit "A" attached hereto and certain covenants of Omni relating to Omni's operation of the Hotel located on the land described on Exhibit "B" attached hereto. 2. Term of Agreement. The term of the Agreement commences on the Effective Date of the Agreement, and continues until the ninety-ninth (99th) anniversary of the Hotel's opening for business, unless sooner terminated as provided in the Agreement. 3. Amendments. The Agreement may not be orally amended. 4. General. Nothing contained in this Memorandum shall be deemed or construed to amend, modify, change, alter, amplify, interrupt or supersede any of the terms or provisions of the Agreement. In the event of a conflict between the terms of the Agreement and the terms of this Memorandum, the terms of the Agreement shall prevail and be controlling. This Memorandum may be executed in multiple counterparts, and each counterpart shall be deemed an original hereof. Accordingly, this Memorandum shall become binding, notwithstanding the execution of separate originals hereof, one by each of the parties hereto. Capitalized terms used but not defined in this Memorandum will have the definitions ascribed to such terms in the Agreenicnt. [The remainder of this page is intentionally left blank] Exhibit "C"—MEMORANDUM OF AGREEMENT - Page 1 IN WITNESS WHEREOF, the parties hereto have executed this Memorandum on the dates set forth in the acknowledgments attached hereto, but to be effective as of the day of April, 2005. CITY: CITY OF FORT WORTH, a Texas home-rule city By: Name: Title: City Manager OMNI: OMNI FORT WORTH PARTNERSHIP, L.P., a Delaware limited partnership By: Omni Fort Worth GP Corporation, a Delaware corporation, its general partner By: Name: Scott Johnson Title: Vice President Exhibit"C"—MEMORANDUM OF AGREEMENT—Page 2 STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on the day of April, 2005 by , the City Manager of the CITY OF FORT WORTH, TEXAS, a Texas home-rule city, on behalf of said city. [ SEAL ] Notary Public, State of Texas My Commission Expires: (Printed Name of Notary Public) STATE OF TEXAS § COUNTY OFTARRANT § This instrument was acknowledged before me on the day of April, 2005 by Scott Johnson, the Vice President of Omni Fort Worth GP Corporation, a Delaware corporation, the general partner of OMNI FORT WORTH PARTNERSHIP, L.P., a Delaware limited partnership, on behalf of said corporation and limited partnership. [ SEAL] Notary Public, State of Texas My Commission Expires: (Printed Name of Notary Public) Exhibit"C"—MEMORANDUM OF AGREEMENT— Page 3 EXHIBIT"A" Legal Description of Convention Center Land Lot 1, Block 1, Fort Worth Convention Center Addition, being a replat of Section 1-R, Tarrant County Convention Center, according to the Plat and Dedication recorded in Cabinet A, Slide 7829, Plat Records, Tarrant County, Texas. Exhibit"A to Exhibit C'- LEGAL DESCRIPTION OF CONVENTION CENTER LAND- Page I EXHIBIT`B" Legal Description of Hotel Land Sections 7 and 8, TARRANT COUNTY CONVENTION CENTER, an addition to the City of Fort Worth, Tarrant County, Texas, according to plat thereof recorded in Volume 388-59, Page 14, Plat Records of Tarrant County, Texas. Exhibit"B to Exhibit C'- LEGAL DESCRIPTION OF HOTEL LAND-Page 1 Dallas—] 4109786v.8