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HomeMy WebLinkAboutContract 31742-EC1 CITY SECRETARY CONTRACT NO. ESTOPPEL CERTIFICATE REGARDING CONTRACT FOR EXCLUSIVE FOOD, BEVERAGE AND ALCOHOLIC BEVERAGE SERVICES 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, Contract for Exclusive Food, Beverage and Alcoholic Beverage Services 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. 31742) (the "Concession Contract") Pursuant to Section 12.12 of the Concession Contract, at the request of Omni the City is required to provide estoppel certificates. 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 Concession Contract. The City hereby certifies and agrees as follows: 1. A true, correct and complete copy of the Concession Contract is attached hereto as Exhibit A. The Concession Contract is in full force and effect as of the date hereof, and has not been modified, changed, altered, amended or amended. 2. The term of the Concession Contract commenced on July 17, 2009 (the date six months after the Hotel opened for business) and will expire on July 16, 2019. 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 EDPA, (ii) the City has not given Omni notice of any default under the Concession Contract, 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 Concession Contract. 4. Omni has conducted its operations in accordance with the terms and conditions of the Concession Contract, from the date such obligations arose through the date hereof. i OFFICIAL RECORD 15207867v.] CITY SECRETARY 0 2—21 2—1 P i 4 i d 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 y: City SecretaryooName: Fernando Costa Ay 00 000 o° °°°000� Title: Assistant City Manager City ° �M� -X0 Date:_ 0 0° d APPROVED AS TO FOR LEG °000000 cr tt4r By:_ a Name: Peter Vaky Title: Deputy City A Corney M&C none required OFFICIAL RECORD 15207867v.1 2 CITY SECRETARY FT. WORTH, TX EXHIBIT A CONCESSION CONTRACT (Attached) 15207867v.i - ) CITY SECRETARY CONTRACT NO. CONTRACT FOR EXCLUSIVE FOOD, BEVERAGE AND ALCOHOLIC BEVERAGE SERVICES AT THE FORT WORTH CONVENTION CENTER by and between THE CITY OF FORT WORTH, TEXAS and OMNI HOTELS MANAGEMENT CORPORATION Dated: April 27 , 2005 CONTRACT FOR EXCLUSIVE FOOD, BEVERAGE AND ALCOHOLIC BEVERAGE SERVICES AT THE FORT WORTH CONVENTION CENTER This Contract ("Contract") is made and entered into as of April 27, 2005, by and between the City of Fort Worth, Texas ("C�iff'), a Texas home-rule city, and Omni Hotels Management Corporation ("Omni"), a corporation organized and existing under the laws of the State of Delaware to provide food, beverage, alcoholic beverage and related concession and catering operations at the Fort Worth Convention Center(hereinafter referred to as the"Center"). SECTION I Q'r A NDARD CONTRACT PROVISIONS, CONCESSION PREMISES AND RIGHTS SECTION 1.01. CONCESSION PREMISES. The City will make available to Omni those areas shown on Exhibit A which, subject to the supervision of the Director of Public Events Director(hereinafter referred to as the "Director"), for the purposes of performing this Contract, and except as otherwise provided herein, will be in the exclusive control of Omni (hereinafter referred to as the"Concession Premises"). PORTABLE LOCATIONS: The City will permit portable concession stands to be located throughout the building. The number and locations of these temporary stands will be agreed upon by the Director and Omni for each event. EXCLUSIONS SECTION 1.02. CONCESSION RIGHTS. The concession rights and privileges herein granted are the exclusive rights to sell to the public all food, alcoholic and non-alcoholic beverages, and candy and to provide restaurant services, Catering Services (defined below) and Concession Services (defined below) at any and all events held at the Center except that the City retains the right to: (A) Grant permission for food and beverage items of sample size to be given away on the premises by exhibitors who are in the business of producing and/or selling such items. (B) If, and only if, a prospective lessee of the Center insists on it as a term and condition of using the Center, allow exceptions or relief to these contractual obligations as follows: (1) Subject to the terms of Section 3.01, not more than four (4) times per 1 calendar year, the City may grant permission for another caterer to provide Catering Services for a convention to be held at the Center with no restriction on the size of the event. (2) Subject to Section 3.01, not more than one (1) time per calendar year, the City may grant permission for another caterer to provide Catering Services for the Mayor's Party event to be held at the Center. This exemption for the Mayor's Party will not be counted as one of the four (4) exemptions granted to the City pursuant to Section 1.02(B)(1) above. (3) Subject to Section 3.01, if a prospective lessee of the Center requires that a meal be provided on a "value" basis which makes it impractical for Omni to provide Catering Services, Omni has the right to refuse to provide Catering Service for such meal or the entire event. If Omni refuses to cater such meal or event, the City may grant permission for another caterer to provide Catering Services at such meal or event and this exemption will not be counted as one of the four exemptions granted to the City pursuant to Section 1.02(B)(1) above. In any event,City will use best efforts to promote the use of Omni at all events to be held at the Center. If an exemption is granted for an event pursuant to this Section 1.02(B), (i)the exemption will apply to all meals and meetings that occur during such convention, (ii) the City will not permit the caterer or restaurant to use the Concession Premises unless the City has received Omni's prior written consent, (iii)the City will use its best efforts to ensure that the caterer shall not do anything in the Center that will put Omni's food and beverage license at risk and shall use its best efforts to ensure that the caterer obtains insurance for the benefit of Omni and agrees to indemnify Omni for any damage resulting from the acts or omissions of the caterer; and (iv) the exemption will not apply to the provision of Alcoholic Beverage Services, which will be provided by Omni pursuant to Section 1.03 below. (C) Promulgate reasonable rules and regulations for Omni to follow. (D) This Contract does not include the right for Omni to sell space for either temporary or permanent signs. The Center specifically reserves this right to itself, subject to the limitations set forth in Section 5.11 below. Notwithstanding the foregoing, Omni shall have the right, whether at a permanent concession stand or temporary kiosk placed in the Center, to co-brand with food and beverage suppliers and, in connection with such co-branding, allow such supplier to install signage advertising its product so long as such signage is tasteful and consistent with the standard of operation of the Center and approved in advance by the Director, which approval will not be unreasonably withheld, conditioned or delayed. The City acknowledges that Omni may receive equipment or other incentives from such suppliers in exchange for the right to advertise its products in the manner described above. (E) Subject to Section 5.08, approve the form of and price of products to be sold and to require the containers to be suitable for consumption of the products on premises 2 immediately after the sale, which approval will not be unreasonably withheld, conditioned or delayed. Omni shall take into consideration the prices charged for similar items in comparable situations within Tarrant County or other comparable venues in the Dallas/Fort Worth metroplex and agrees to consult with the Director in this regard. A suitable print pattern shall be used on all containers, cups, bags, plastic ware etc. used by Omni. Under no conditions shall there be any reuse of these containers by Omni after initial sale or use. (F) To establish rules so that sales shall be at and for a reasonable length of time before and after the time of the performance or function being served, so as to insure that the sales will not interfere with the conduct of the performance or function being served. (G) All concession items such as programs, novelties, song books, autographed pictures, records, tapes, T-shirts, etc., carried by traveling shows and not normally stocked by Omni, and additional stands set up on a temporary basis for this purpose are considered as subcontracts retained by the Center and Omni shall not receive any revenues therefrom. The City will use its best efforts to prohibit any lessees from selling food and beverages in the Center, except that Feld Entertainment may sell food and beverage related items which are packaged so as to be considered a novelty item (such as, for example, snow cones served in a circus animal cup) and cotton candy during any event in which the Center is leased to Feld Entertainment. (H) Omni shall not knowingly move any event confirmed at the Center to the Hotel. If Omni moves a scheduled event from the Center to the Hotel, Omni shall honor the commissions set forth in Section 3.01. (I) The City and Omni agree to consider from time to time other exclusions that are requested by prospective lessees of the Center. SECTION 1.03. ALCOHOLIC BEVERAGES. Alcoholic beverage sales will be allowed unless the lessee using the building requests from the Director that alcoholic beverages not be sold for specific reasons relating to the nature of the lessee's event. Omni will have the exclusive right to provide Alcoholic Beverage Service to the Center, including during events for which a catering exemption was granted pursuant to Section 1.02(B) above. SECTION 1.04. GENERAL PROVISIONS. Should Omni's method of operation, or manner of exercising the exclusive rights granted herein, interfere with or disrupt any performance, or event scheduled or in progress, Omni will modify its method of operation or manner of exercising its exclusive rights hereunder to meet with the reasonable approval and satisfaction of the Director. SECTION 1.05. DONATED PRODUCTS. Neither Omni nor the City will allow any donated food or beverages to be brought into the Center. Notwithstanding the foregoing, donated food and non-alcoholic beverages may be brought into the Center in connection with an event if the lessee of the Center permits Omni to sell such donated product at fair market value. 3 SECTION II TERM SECTION 2.01. TERM OF CONTRACT.This Contract shall be in effect for a period of ten (10) years beginning on the date which is six (6) months after the Omni Fort Worth Hotel opens for business. Upon expiration of the initial term or earlier termination by City, Omni agrees to hold over under the terms and conditions of this Contract for such period of time as is reasonably necessary to obtain a replacement concessionaire, provided such period shall not exceed ninety(90) days. SECTION 2.02. SURRENDER OF POSSESSION. No notice to quit possession at the expiration date of the term of this Contract shall be necessary. Omni covenants and agrees that at the expiration date of the term of this Contract, or at the earlier termination thereof, it will peaceably surrender possession of the Concession Premises and applicable licenses in good condition, reasonable wear and tear, and acts of God excepted, and the Center shall have the right to take possession of the Concession Premises. SECTION III PAYMENTS SECTION 3.01. CONCESSION RENTAL. For the rights and privileges granted, Omni shall pay the City, through its Director, each month during the term hereof, the following amounts: (A) Thirty-six percent (36%) of gross sales on all basic concession items sold by Omni, including, but not limited to, all soft drinks, beer, alcoholic beverages, peanuts, popcorn, cotton candy, chips, doughnuts, hamburgers, pretzels, sandwiches, hot dogs, french fries, chili dogs, coffee, barbecue and pizza. (B) When Omni provides Catering Service, a flat fee of twenty percent (20%) of Gross Receipts will be paid to the City. When operating as a caterer providing alcoholic beverages, the fee as to those alcoholic beverages will remain at established concession rates. The City agrees to meet periodically with Omni at Omni's request to discuss new concession, food and beverage items to be provided at the Center and proposed improvements to the Concession Premises. If deemed appropriate by the City and Omni, the percentages in this Section 3.01 may be renegotiated as a result of the new items or improvements proposed by Omni, in which event the parties will execute an amendment to this Contract modifying such amounts. SECTION 3.02. NOTICE, PLACE AND MANNER OF PAYMENTS. Payments shall be made by check at the office of the Director at the Center, or at such other place in Fort 4 Worth, Texas as the Director may hereafter notify Omni, and shall be made in legal tender of the United States. SECTION 3.03. PAYMENTS. All payments due the City shall be due and payable without demand at the office of the Director. Payments from any calendar month shall be due no later than 3:00 P.M. on the 20th day following the end of an "Accounting Period" calculated in accordance with Omni's accounting calendar, which is arranged on a 4-4-5 week basis during each calendar quarter. Any payment which is not made by this date shall bear a service charge of one and one- half percent (1.5%), plus an interest fee in the amounts of one and one-half percent (1.5%) per month from the date it became due until the date it is paid. Omni agrees that it shall pay and discharge all costs and expenses including attorney's fees incurred or expended by the City in collection of said delinquent amounts due, including service charges. SECTION IV REPORTING SECTION 4.01. EVENT REPORTS. Omni shall be required to furnish the Center with a daily report of gross sales on each event. This report will be submitted on forms approved by the Director and must be turned into the office of the Director no later than 4:00 P.M. of the first business day after the event. This form will be signed by Omni or Omni's designated representative. Cash registers must be used at each point of sale by Omni to record sales, and the tape from each register used for an event will be attached to the corresponding concession report. The location of the register will be written on the tape and it must be verified and signed by the person that operated the register. If a register is not used (only upon prior written approval of the Director), a cash slip,must be prepared for each location that cash was received. This slip must be verified and signed by person working at the location. In no event may shall the person who signed the cash register tape or cash slip be the same person who signed the concession report. Notwithstanding anything to the contrary set forth in this Section 4.01, Omni shall have the right to update the current reporting system described above which update may include providing the information required in this Section 4.01 to the Director via direct electronic access to Omni's system. SECTION 4.02. BANK ACCOUNT. Omni shall establish a separate commercial account at a local bank in Fort Worth, Texas (or the local branch of a national bank), which shall be exclusively used for the initial deposit of all receipts involved in Omni's operations with the Center. SECTION 4.03. ACCOUNTING RECORDS, EQUIPMENT AND REPORTS. Omni shall keep true, accurate, complete and auditable records, in a form reasonably satisfactory to the Director for a period of three (3) years after the relevant event. Omni 5 fiuther agrees that the Director or his duly authorized agents or representatives shall have the right to examine all pertinent books and records at any and all reasonable times during that three (3) year period for the purpose of determining the accuracy thereof. The making of any willfully false report of revenue by Omni shall be grounds for the immediate cancellation and termination of this Contract. Permanent books, ledgers, journal accounts and records, will be retained by Omni for a period of three (3) years, along with collateral papers and forms such as: Original invoices, sales checks or slips, cash register and adding machine tapes and analogous supporting data (to the extent such collateral papers and forms exist in Omni's point of sale system). Omni shall, upon the receipt of a written reasonable request from the Director, prepare and submit such reports and analysis of the operation of the concessions under this Contract in such form and content as the City may reasonably require in the administration of this Contract. SECTION V FOOD, BEVERAGE AND ALCOHOLIC BEVERAGE OPERATIONS SECTION 5.01. OCCUPANCY OF PREMISES. Omni agrees to maintain the Concession Premises as provided in Sections 6.01-6.07 hereof. SECTION 5.02. HOURS OF CONCESSION OPERATION. Except as otherwise provided in this Contract, Omni agrees to operate the concessions granted herein when any event or attraction is scheduled in the facilities, unless the level of foot traffic generated by such event or attraction is not reasonably expected to generate enough sales to allow Omni to at least cover its expenses in connection with such event or attraction. If the level of foot traffic is not reasonably expected to generate enough sales to allow Omni to at least cover its expenses in connection with any such event or attraction, the Director may still require Omni to operate the concessions granted herein so long as the lessee of the Center guarantees in writing the payment to Omni of an amount equal to the difference between Omni's expenses incurred in connection with such event or attraction and the actual sales derived from the operation of the concessions during such event or attraction. Omni shall have the concession stands open and in operation a reasonable time before, during and after all events as determined by the Director. SECTION 5.03. PERSONNEL. Omni shall be entitled to employ such employees on the premises as are necessary to perform the services required of it hereunder. Omni agrees to employ, train and supervise personnel with appropriate qualifications and experience and in sufficient number to provide all the services appropriate for the concessions granted herein with a minimum of delay for the patrons. Omni shall abide by all federal, state and local laws, rules and regulations concerning the hiring, training and employment of its employees. Employees shall be clean, neat, courteous, efficient, properly trained and attendant to patrons of the facilities. Employees shall be attired in clean uniforms at all times when the facility is open to patrons and shall wear a badge with 6 the employee name or number legibly imprinted. The type and design of the uniforms and identification badges are subject to the reasonable approval of the Director. In any event, the uniforms and identification badges will be consistent with the standards set in the industry and will be reasonably priced given the nature and quality of the event or attraction. SECTION 5.04. SOLICITATION OF BUSINESS. Omni's solicitation of business shall be made from the stands, booths or other locations specifically indicated in Exhibit A hereto, unless otherwise assigned to Omni by the Director or to a walking vendor program specifically approved by the Director for each event or attraction as to merchandise offered, periods of sale and number of walking vendors. Omni agrees that alcoholic beverages will not be sold or exhibited for sale at its stands or bars when a lessee has included in its lease with the Center a condition that alcoholic beverages will not be sold or exhibited for all or for specified periods within the facility. The Director will give timely notice to Omni of any such restrictions in a lease of the facilities. SECTION 5.05. DELIVERIES. Deliveries of all supplies, goods, wares, merchandise and equipment to Omni shall be made as designated by the Director. Omni is responsible for accepting all deliveries to its operation and shall schedule deliveries outside event hours in the facility, whenever possible. SECTION 5.06. RESTRICTIONS ON SALES BY OTHERS. The City will use all legal means at its disposal to prevent vendors and peddlers not employed by Omni from vending or distributing their wares upon the premises under the control of the City and to prevent exhibitors from selling or providing complimentary concession items during an event, unless specifically permitted by this Contract. It is understood, however, that exhibitors may give away sample-size products as provided in Section 1.02(A) above or sell merchandise intended for consumption off-premises. The City will not be in breach of this Section 5.06 if an exhibitor offers complimentary concession items to convention attendees in small quantities so long as the City included a provision in its contract with the lessee prohibiting such activity and the City uses reasonable efforts to enforce such provision. The Director reserves the right to allow a lessee the right to sell certain food and beverage merchandise as approved by the Director, if deemed necessary, but only to the extent that such merchandise is a novelty product that would not normally be provided by Omni. SECTION 5.07. CONDUCT OF OTHER BUSINESS. The Concession Premises used by Omni in the facility shall be used solely for the transaction of business directly related to the obligations of this Contract. Food and beverages prepared or stored at the facilities, may not be sold for consumption off premises, without written approval of the Director, which approval will not be unreasonably withheld, conditioned or delayed. In the event permission is granted, a mutually agreed reasonable fee payable to the City shall be determined. It is the intent of the parties that relief may be granted from the restrictions of this section in instances of inventory problems arising from conditions beyond the control of Omni. 7 SECTION 5.08. PRICE AND QUALITY OF MERCHANDISE. As a general policy, prices for merchandise for sale shall be reasonably comparable to those charged for the same quality merchandise at comparable facilities elsewhere in the Dallas-Fort Worth area. Prices must be posted by Omni on display at all stands and on vendor's equipment. Permanent display signs and the final design and location of all posted prices shall be subject to the approval of the Director, which approval will not be unreasonably withheld, conditioned or delayed. The prices, quality and unit quantity of all consumable merchandise offered for sale shall be as approved in advance by the Director, which approval will not be withheld, conditioned or delayed. Within 15 days of the execution of this Contract, Omni shall submit a detailed "Price Schedule" for all items to be sold. This schedule shall list the proposed quantity and content of each item offered for sale. Omni shall provide an up-to-date "Price Schedule" to the Director on a not-less-than semi- annual basis. In the event that Omni and the Director cannot agree on the amount of price increases, then Omni shall be entitled to increase prices by an amount equal to the increase in the Consumer Price Index (CPI} for food for the Dallas-Fort Worth area as published by the United States Department of Labor, Bureau of Labor Statistics for the most recent period. If Omni desires to substitute any article for an article listed in the approved "Price Schedule", the written approval of the Director must be obtained, which approval will not be unreasonably withheld, conditioned or delayed. SECTION 5.09. CONSUMABLE MERCHANDISE. Omni will offer customers food, drink and other consumable merchandise of first quality and standard quantity. Consumables shall conform in all respects to federal, state and local food laws, ordinances and regulations. All merchandise kept for sale shall be subject to inspection by representatives of appropriate governmental agencies. Unless otherwise approved by the Director, all beverages shall be sold in disposable cups. SECTION 5.10. NON-CONSUMABLE MERCHANDISE. Omni agrees that the sale of non-consumable merchandise is not allowed without the prior written consent of the Director, which consent will not be unreasonably withheld, conditioned or delayed. Such approval shall be required and considered on an event by event basis only. Non- consumable merchandise shall be sold only at such times and in such locations approved by the Director, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary set forth in this Contract, the foregoing prohibition on the sale of non-consumable merchandise does not apply to food and beverage/catering related items such as flowers, center pieces, tablecloths, ice carvings and the like. SECTION 5.11. ADVERTISING. Subject to Section 1.02(D), Omni agrees that it shall use all reasonable and customary means of advertising its merchandise for sale and any special or non-customary advertising, signs, displays or oral trade names must be approved by the Director, which approval will not be unreasonably withheld, conditioned 8 or delayed. Subject to Section 1.02(D), Omni further agrees not to cause or permit the advertising in the grounds adjacent to the Center, whether for display advertising or otherwise, without the prior written approval of the Director, which approval will not be unreasonably withheld, conditioned or delayed. Omni's advertising in the Center must not conflict with any agreements the City may have with other advertisers or service providers of the Center. The City agrees that it will not enter into any agreements after the date hereof (other than an agreement relating to exclusive pouring rights for soft drinks or an agreement relating to naming rights of the arena facility within the Center) that limit or restrict or otherwise contravene any agreement between Omni and a service provider for advertising in the Center, unless such agreements are approved in writing by Omni, which approval will not be unreasonably withheld, conditioned or delayed. SECTION 5.12. TEMPORARY OR PORTABLE CONCESSION STANDS. Omni shall acquire no rights to locations of temporary or portable concession stands as may be approved from time to time by the Director. The City reserves the right to require Omni to move temporary or portable stands and equipment when the needs of events in the facilities so require. Unless approved in advance by the Director, all portable stands will be returned to the storage areas immediately upon the conclusion of the event being served. SECTION 5.13. OPERATING OBJECTIVES. Omni shall endeavor, with the assistance and cooperation of the Center and the Director, to improve the operations with the objective of developing maximum gross receipts potential and quality service to the patrons. SECTION 5.14. OTHER SERVICES. In addition to normal concession and catering functions, Omni shall provide at reasonable and customary prices various specialized services associated with convention/trade show activities including, but not limited to, the following: * Room Service — The distribution of various snack-type items, at catering rates, in the meeting rooms and office areas utilized by tenants. This type of service is similar in function to the room service normally associated with hotels. * Exhibitor Services -- Services usually associated with convention/trade shows in which various areas within the facility are utilized for display purposes. Exhibitor services normally fall into the following areas: Food/beverage items provided to exhibitors as a method of entertaining clients. Product storage and/or refrigeration and delivery of consumable items * Product preparation: This area would involve the preparation, i.e., cooking, assembly, etc., of exhibitor product with appropriate delivery when required. 9 * Personnel Service -- On various occasions, Omni may be called upon to provide personnel for special purposes such as bar tending, wait/host staff, or other activities. The special personnel services are not to be confused with the normal personnel required to meet the responsibilities of providing reasonable, good quality,and efficient service to the tenant in fulfillment of the obligations set forth in this Contract. SECTION 5.15. RECYCLING. Omni shall use recycled products and/or products such as, but not limited to, cups, plates, containers, utensils and paper products that can be recycled whenever practicable. The Director shall, from time-to-time, review Omni's use of recycled or recyclable products, and make recommendations as to the use of such products. The Director will take into account the cost of using recycled products in approving reasonable price or other adjustments to the provisions of the contract. SECTION 5.16. CLEANING AND SANITATION. Omni shall be responsible for: Cleaning and sanitation of all food service production, storage, and service areas, including equipment, floors, walls, ceilings, and shelving. Cleaning of table tops, floors, emptying waste receptacles located in food service areas, and other related sanitation functions within the food service areas during events and following each event. Cleaning and sanitizing all trash and garbage receptacles in the food service areas. Cleaning and maintaining receiving dock areas where food and beverages are delivered including the return of all pallets, storage containers, linens, and other equipment used in the conduct of operating the food service. Arranging for the removal of grease in a manner to avoid collection and spillage. The Director shall have the right in its reasonable discretion to reject the character of service and require that undesirable practices be discontinued or remedied. Failure to take satisfactory action after notification in accordance with Section 11.02 may result in the cancellation of the contract. SECTION VI IMPROVEMENT OF THE PREMISES SECTION 6.01. MAINTENANCE AND REPAIR BY CITY. Attacbed hereto as Exhibit B is an inventory list of all fixtures, furnishings, trade equipment, and portable equipment on the Center property as of the date hereof (the "Current Eguiyment"). Prior to the commencement of the term of this Contract, the City will maintain the Current Equipment or replace such Current Equipment when necessary in order to provide the 10 Current Equipment to Omni at the commencement of the term of this Contract in substantially the same condition as the Current Equipment exists as of the date hereof. In addition, on or before the commencement of the term of this Contract, the City agrees to spend $125,000.00 toward the replacement and repair of Current Equipment in the Concession Premises. Prior to making any such repairs or replacements, however, the City shall receive Omni's prior written approval, which will not be unreasonably withheld, conditioned or delayed. After commencement of the term of this Contract, Omni shall maintain the Current Equipment in accordance with Section 6.04 below. SECTION 6.02. BUILDING SERVICES. The City will furnish building services as set forth in this section but will not supply the labor or materials for Omni's equipment installations: (A) Utilities: The City will furnish standard outlets and connections as have been installed, for hot and cold water, natural gas and electricity in the concession stands. The City shall provide all such utilities to Omni at no cost to Omni. (B) Equipment: The City will famish the Current Equipment; all other permanent and portable equipment will be furnished by Omni, at Omni's sole expense, in accordance with the provisions of this Contract. SECTION 6.03. DESIGN CONTROL: IMPROVEMENTS. During the term of this Contract, Omni shall have the right to repair and replace the Current Equipment and to install new fixtures, furnishings and trade fixtures at Omni's sole discretion and as Omni deems prudent. However, except as set forth in Section 1.02(D),material, color and design of any improvements shall be submitted to the Director for approval prior to the installation of any improvements on the Concession Premises, which approval will not be unreasonably withheld, conditioned or delayed. If Omni desires to make improvements to the Concession Premises, Omni shall, at Omni's sole expense, purchase and install only new or, with the permission of the Director, good used fixtures, furnishings and trade equipment on the Concession Premises. To the extent Omni installs new fixtures, furnishings or trade equipment on the Concession Premises during the term of this Contract and such fixtures, furnishings or trade equipment are approved in advance by the Director, then upon the expiration of this Contract, the City will pay to Omni the unamortized costs of such improvements in accordance with generally accepted accounting principles and such fixtures, furnishings and trade fixtures will become the property of the City upon termination of this Contract. Any fixtures, furnishings and trade fixtures installed by Omni of which the City is not required to pay the unamortized cost shall remain the property of Omni after termination of this Contract and may be removed by Omni prior to the expiration of this Contract. All proposed future changes of the improvements and equipment shall be submitted and approved in the same manner for the full term of this Contract. SECTION 6.04. :MAINTENANCE AND REPAIR BY OMNI. Maintenance and repair of all concession equipment installed by the City and improvements furnished by Omni during the term of this Contract shall be at the expense of Omni. Omni agrees to keep in good 11 repair and to maintain in clean and good appearance and condition all equipment and improvements. Omni shall provide for complete sanitary handling, transportation and disposal away from the Concession Premises of all trash, garbage and refuse (liquid or solid) in accordance with normal and customary practice in the food service and convention industry. Omni shall remove the refuse containers from the refreshment stands area and deposit them in facility provided dumpsters. The City agrees to keep the dumpsters located in the area outside of the kitchen, as shown on Exhibit A. If additional dumpsters are necessary to accommodate an event, temporary dumpsters shall be provided by Omni at its expense, subject to the Director's prior approval which will not be unreasonably withheld, conditioned or delayed. Omni will design and implement an extermination program for insects and rodents in all areas under the control of Omni. The plan shall be submitted to the Director for approval, which approval will not be unreasonably withheld, conditioned or delayed. SECTION 6.05. SIGNS. Omni shall have the right to place reasonable and customary signs and advertising displays upon the areas of the Concession Premises, subject to the prior approval of the Director with respect to wording, type, size, design, color and location. Director's approval may not be unreasonably withheld, conditioned or delayed. SECTION 6.06. TITLE TO IMPROVEMENTS. All permanent improvements, if any, installed by Omni shall be approved by the Director, which approval will not be unreasonably withheld, conditioned or delayed. They will become the property of the City upon termination of this Contract. Upon the termination of this Contract, the City must pay to Omni the unamortized costs of such improvements (amortized on a GAAP basis over the useful life of such improvements), unless mutually agreed otherwise by Omni and the Director at the time of such termination. SECTION 6.07. INTELLECTUAL PROPERTY RIGHTS — PROPRIETARY CONCEPTS. Omni owns any intellectual property and proprietary concepts that Omni develops and uses on the Concession Premises. Upon termination of this Contract, Omni may (but shall have no obligation) give the City the license to operate the Concession Premises using such intellectual property concepts and names. If a license is not granted to the City, Omni must remove from the Center any signs relating to such intellectual property and proprietary concepts and repair any damage caused by such removal prior to the termination or expiration of this Contract. SECTION VII USE AND MAINTENANCE OF LEASED PROPERTY SECTION 7.01. COMPLIANCE WITH LAWS AND REGULATIONS. Omni shall comply with all federal, state, county and city statutes, laws and ordinances and all such rules and regulations now or hereafter applicable to the Concession Premises or to any 12 adjoining public ways, or as to the manner of use or the conduct of Omni's business hereunder. SECTION 7.02. UTILITIES. The Center shall provide water, gas and electrical utilities to Omni at no cost to Omni. SECTION 7.03. RIGHT TO ENTER INSPECT AND MAKE REPAIRS. The City and its authorized officers, employees, agents, contractors, subcontractors and other representatives shall have the right (at such times as may be reasonable under the circumstances and with as little interruption of Omni's operations as is reasonably practicable) to enter upon and in the Concession Premises (Exhibit A) for the following Purposes: (A) Inspection: To inspect such premises to determine whether Omni has complied and is complying with the terms and conditions of this Contract. (B) Maintenance: To perform maintenance and repairs in any case where Omni is obligated, but has failed to do so, after the Director has given Omni reasonable notice to do so, in which event Omni shall reimburse the Center for the reasonable cost thereof promptly upon demand. (C) Access: To gain access to the mechanical, electrical, utility and structural systems of the Facilities for the purpose of maintaining and repairing such systems. SECTION VIII INSURANCE AND INDEMNIFICATION SECTION 8.01. LIABILITY INSUI`ANCE. Omni shall procure and maintain at all times, in full force and effect, a policy or policies of insurance to provide the types and limits of coverage specified herein. 1. Commercial General Liability(CGL) Insurance Policy $1,000,000 each occurrence $2,000,000 aggregate limit 2. Automobile Liability Insurance Policy $1,000,000 each accident on a combined single limit basis or $250,000 Property Damage $500,000 Bodily Injury per person per occurrence A commercial business policy shall provide coverage on "Any Auto", defined as autos owned, hired and non-owned. 3. Workers' Compensation Insurance Policy; or alternative work-place injury or non-subscription plan as may be permitted under applicable law Statutory limits 13 Employer's liability $100,000 Each accident/occurrence $100,000 Disease per each employee $500,000 Disease policy limit OR 3. Employer's Primary Indemnity Coverage $1,000,000 per each employee $5,000,000 per each occurrence 4. Liquor Liability: The policies of insurance shall save the City harmless and provide for the defense of the City and protect the City and the Center premises for and against any and all damages,judgments, claims, liens, costs and expenses arising under Texas law or under any other present law, statute or ordinance of the City or other governmental authority having jurisdiction at the Center by reason of any storage, sale or use of alcoholic beverages on or from the premises and shall include the following: Bodily injury or property damage for which any insured may be held liable by reason of: a) Causing or contributing to the intoxication of any person; b) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or C) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverages. and shall be in the following limits: $1,000,000 Bodily injury, fatal or nonfatal, to any one person and to more than one person arising out of any one incident $1,000,000 Injury to means of support of any one person $1,000,000 Injury to property of any one person 5. Umbrella Excess Liability Insurance $10,000,000 occurrence Bodily Injury/Property Damage (occurrence basis) $10,000,000 aggregate The policy shall be written on a following form umbrella excess basis above the coverages described in Subparts 1, 2 and 4 above. General Insurance Requirements: a. The City, its officials, employees, agents and officers shall be named as an "Additional Insured" to all policies except Employers Liability coverage 14 under the Operator's Workers Compensation policy or Employer's Primary Indemnity Coverage. b. All policies shall be written on an occurrence basis. If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. C. All policies shall be written by financially sound insurance carriers reasonably acceptable to the City. d. Deductibles shall be listed on the Certificate of Insurance and shall be on a "per occurrence"basis unless otherwise stipulated herein. e. If coverage is underwritten on a claims-made basis, the retroactive date shall be coincident with or prior to the date of this Contract and the certificate of insurance shall state that the coverage is claims-made and the retroactive date. The insurance coverage shall be maintained for the duration of this Contract and for five(5) years following completion of the service provided under this Contract or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence such insurance coverage. f. Certificates of Insurance shall be delivered to the City of Fort Worth, 1201 Houston Street, Fort Worth, Texas 76102, evidencing all the required coverages. g. The deductible or self-insured retention (SIR) affecting required insurance coverage shall be reasonably acceptable to the Risk Manager and/or Public Events Department of the City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups must also be approved, which approval may not be unreasonably withheld, conditioned or delayed. h. All policies shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. i. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement specified herein. j. The City shall be entitled, upon request and without expense, to receive certified copies of policies and material endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. k. The City reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by the City based upon changes in statutory law, court decision or the claims history of the industry as well as of the contracting party to the City of Fort Worth. The City shall be required to provide prior notice of ninety(90) days. 15 1. Thirty (30) days notice of cancellation or non-renewal is required and shall contain the following language: 'This insurance shall not be canceled, materially limited in scope or coverage, cancelled or non- renewed, until after thirty (30) days prior written notice has been given to the City of Fort Worth. A ten days notice shall be acceptable in the event of non-payment of premium. SECTION 8.02. LIMITATION AS TO POLICIES. All insurance policies required shall be in a form and content and with a company or companies approved by the Director in its reasonable discretion and qualified to do insurance business in the State of Texas. All liability carriers must meet the reasonable approval of the City of Fort Worth Risk Management Department. Each such policy shall provide that the policy may not be materially changed, altered or canceled by the insurer during its term without first giving thirty(30)days prior written notice to the parties insured. SECTION 8.03. EVIDENCE OF INSURANCE. Original Certificates or other evidence of insurance coverage required by Omni in this Article, shall be delivered in form and content satisfactory to the City Risk Manager prior to the execution of this Contract. At least thirty(30) days prior to the expiration of any such policy, Omni shall submit to the Director a certificate showing that such insurance coverage has been renewed. If such coverage is canceled or reduced, Omni shall, within fifteen (15) days after the date of such written notice from the insurer of such cancellation or reduction in coverage, file with the Director a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. SECTION 8.04. WORKER'S COMPENSATION OR NON-SUBSCRIBER INSURANCE. Omni shall, at its own cost and expense, secure Worker's Compensation Insurance or Employer's Primary Indemnity Coverage to an extent sufficient to meet all requirements of the law of the State of Texas, and each of the persons employed or subcontracted by it in the operations of the concession rights in this Contract. SECTION 8.05. ADJUSTMENT OF CLAIMS. Omni shall provide for the prompt and efficient handling of all claims for bodily injury, property damage or theft arising out of the activities of Omni under this Contract. SECTION 8.06. CONDITIONS OF DEFAULT. If, at any time, Omni shall fail to obtain the insurance as required herein and such failure continues for a period of thirty (30) days after Omni's receipt of notice from the Director, the City may effect such insurance by taking out policies from companies satisfactory to the Director, and City Risk Management Department. The amount of the premiums paid for such insurance by the City shall be payable by Omni to the City with the installment of rent thereafter next due under the terms of this Contract. SECTION 8.07. CANCELLATION,TERMINATION OR INTERRUPTION OF EVENT. Omni understands that the City reserves the right in its sole discretion to cancel, interrupt or terminate any performance, lecture, event, public or private gathering, whether or not 16 admission has been charged, upon its premises and to dismiss the audience, or cause the same to be dismissed; and Omni hereby agrees that it will not make or allow to be made against the City, any claim for damages to Omni or other party arising out of any act of the City, its officers, agents,or employees, in the exercise of the City's discretion as aforesaid. SECTION 8.08. INDEMNIFICATION. Omni agrees to indemnify and save harmless the City, the Center, its officers, agents and employees from and against any and all loss of or damage to property of a third person or injuries to, or death of, any person or persons and from any and all claims, damages, suits, costs, expense, liability, actions or proceeding of any kind whatsoever (collectively, "Claims"), in any way resulting from, or arising out of the acts or omissions of officers and employees of Omni arising out of this Contract or Omni's use and occupancy of the Concession Premises, except to the extent such Claims are a result of the act or omission of the City or its employees or the City's or any tenant's use and occupancy of the Center. At its own cost and expense, Omni will defend and protect the Center and its tenants from any and all such claims or demands and will defend all suits arising therefrom. The provisions of this Section 8.08 shall survive the termination of this Contract. SECTION IX ASSIGNMENT SECTION 9.01. ASSIGNMENT. Omni agrees not to assign, transfer, convey, sublet or otherwise dispose of this Contract or any rights or responsibilities thereunder, or of its right, title or interest in, or its power to execute such contract to any other persons, firms, corporation, sub-lessee or sub-concessionaire, other than to a partnership, corporation, limited liability company or other business entity owned by Omni or an affiliate of Omni without the written consent of the City, which consent will not be unreasonably withheld, conditioned or delayed. SECTION X LIENS AND CLAIMS SECTION 10.01. PROMPT PAYMENT OF TAXES AND FEES. Omni covenants and agrees to pay promptly all lawful general taxes, special assessments, excises, license fees and permit fees of whatever nature, applicable to its operations in the Center and to take out and keep current all licenses, municipal, state or federal, and required covenants, and agrees not to permit any of said taxes, assessments, excises, fees or charges to become delinquent 17 SECTION XI TERMINATION OF CONTRACT IN ENTIRETY SECTION 11.01. FORT WORTH CITY COUNCIL RIGHT TO TERMINATE. Fort Worth City Council, acting by and through its City Manager,may declare this Contract terminated in its entirety, in the manner provided in Section 11.03 hereof, upon the occurrence of any one or more of the following events and may exercise all rights of entry and re-entry upon the premises leased hereby: (A) Nonpayment: If the rental due under Section 3.01 which Omni herein agrees to pay, or any part thereof, shall be unpaid after the date the same shall become due, and after ten (10) days written notice to Omni by the City of Omni's failure to do so, unless such payment is disputed by Omni in good faith, in which event the parties will work together to mutually resolve such disputed payment. If Omni and the City are not able to resolve the dispute within thirty (30) days following such ten (10) day period, the parties will submit the matter to arbitration in accordance with Section 11.04 below. (B) Default: If Omni shall have failed in the performance of any material covenant or condition herein required to be performed by Omni, and to remedy the same in accordance with Section 11.02. This includes, but is not limited to the failure on the part of Omni to submit the reports required under this Contract. Failure by the Director to take any action upon default by Omni of any of the terms, covenants or conditions required to be performed, kept and observed by Omni shall not be construed to be or act as a waiver of default or in any subsequent default of any of the terns, covenants and conditions herein contained to be performed, kept and observed by Omni. (C) The happening of any act or omission by Omni which results in the suspension or revocation of any act, power, license, permit or authority that terminates the conduct and operation of the Concession at the Center by Omni, or suspends it for any time in excess of thirty(30) days. (D) The interest or estate of Omni under this Contract is transferred to, passes to or devolves upon, by operation of law or otherwise, any other person, firm or corporation without the written consent of the City, except as otherwise permitted in Section 9.01 above. (E) The levy of any attachment or execution, or the appointment of any receiver, or the execution of any other process of any court of competent jurisdiction which does, or as a direct consequence of such process, will interfere with Omni's occupancy of the Concession Premises and will interfere with its operations under this Contract and which attachment, execution, receivership, or other process of such court is not enjoined, vacated, dismissed, set aside or bonded within a period of thirty(30) days. (F) A petition under any part of the Federal bankruptcy law, or an action under any present or future solvency law or statute is filed against Omni and Omni's operations hereunder are interfered with or adversely affected thereby, or Omni is adjudicated as 18 bankrupt. Upon notification that Omni has declared bankruptcy, the City may immediately make other arrangements to provide Concession Services to its customers until an arrangement is worked out between the City and the Court. Omni will not share in any of the revenues derived from such temporary arrangements. (G) Omni shall abandon, desert, vacate or discontinue its operation of the concession, or the Concession Premises,or any other action that results in a failure by Omni to provide public and others with the service required hereunder. (H) A court or arbitrator determines that Omni is failing to provide food and/or service of a standard befitting the venue and the events then being operated at the Center at the same (or better) level of service as provided by public convention center facilities in Austin, San Antonio, Houston and Dallas and such failure continues for a period of sixty(60) days after such ruling. (I) Omni or Omni's affiliate defaults in the performance of its obligations under the Economic Development Agreement or Room Block Agreement. SECTION 11.02. PROCEDURE FOR TERMINATION AND REPOSSESSION. (A) For deficiencies other than monetary, the Director will provide to Omni a written notice about the nature of the deficiencies and inform Omni of a 60 day period in which to take corrective action. Omni has the ability to dispute the City's claim and if the matter is not resolved within such sixty (60) day period, either party may submit the matter to arbitration in accordance with Section 11.04 below. If corrective action is not taken during the 60 day period, the Director, with the approval of the City, may terminate the contract with Omni by giving a 30 day notice. (B) As outlined in Section 11.02(A), no termination declared by either party shall be effective and the City shall not take possession of the Concession Premises until not less than 3 0 days have elapsed after notice by either party to the other specifying the date upon which such termination will take effect. The nature of the default, for which this Contract is being terminated, must be specified. (C) The City shall provide for purchase of Omni's good and usable food and beverage inventory and supplies at invoice cost except items with logo or open packaging; provided, however, that any amount in excess of $25,000.00 will be subject to appropriations by the City Council. SECTION 11.03. RIGHTS CIIJIMULATIVE. It is understood and agreed that the rights and remedies of the City and Omni specified in this Contract are not intended to be and shall not be, exclusive of one or exclusive of any statutory, constitutional, or common law right of either of the parties hereto. SECTION 11.04. ARBITRATION (A) If the parties are in disagreement regarding any provision of this Contract, the parties shall submit disputes to mandatory arbitration in accordance with the provisions 19 of this Section 11.04. Each of City and Omni waives the right to commence an action in connection with this Contract in any court and expressly agrees to be bound by the decision of the arbitrator determined in this Section 11.04; provided, however, the waiver in this Section 11.04 will not prevent City or Omni from commencing an action in any court for the sole purposes of enforcing the obligation of the other party to submit to binding arbitration or the enforcement of an award granted by arbitration herein. Any dispute between City and Omni as to the interpretation of any provision of this Contract 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, City and Omni shall first attempt in good faith, for thirty(30) days after the first notice given under this Contract 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 City and Omni, City and Omni shall agree upon one (1) arbitrator to resolve the dispute. The arbitrator must be a neutral party having at least five (5) years experience in commercial real estate in general and hotel buildings in particular in the Fort Worth, Texas area and must be mutually acceptable to both parties. (C) The arbitrator selected pursuant to Section 11.04(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 are encouraged to adopt the rules the arbitrators deem 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. (E) Any award made by the arbitrator shall be binding on City, Omni 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 Center is located. Except as permitted under Section 11.04(D) above, the arbitrator's award will be limited to actual damages and will not include 20 consequential, special, punitive or exemplary damages. Nothing contained in this Contract 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 Contract. 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. SECTION 11.05. INJUNCTIVE/ANCILLARVEMERGENCY RELIEF. Notwith- standing any provision of Section 11.04 of this Contract 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 11.04 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. SECTION 11.06. ACKNOWLEDGMENT OF AUTOMATIC TERMINATION. The City and Omni acknowledge that Section 4.4 of the Economic Development Agreement provides that this Contract and all other agreements entered into concurrently herewith by the City and Omni relating to the development of the Omni Fort Worth Hotel will automatically terminate if the Completion Guaranty (as defined in the Economic Development Agreement) is not delivered to the City within the time period required under Section 4.4 of the Economic Development Agreement. SECTION XII MISCELLANEOUS PROVISIONS SECTION 12.01. QUIET ENJOYMENT. Subject to the provisions of the contract and the timely payment of required fees, the City covenants that Omni shall have quiet and peaceable possession of the Concession Premises. SECTION 12.02. GOVERNING LAW. This Contract shall be deemed to have been made in and be construed in accordance with the laws of the State of Texas, and venue shall be in Tarrant County, Texas. SECTION 12.03. NOTICES. Except as herein otherwise expressly provided, all notices required to be given to the Center hereunder shall be in writing and shall be sent by certified mail, return receipt requested, to the Director of Public Events, Fort Worth Convention Center, 1201 Houston Street, Fort Worth, Texas 76102; all notices, demands and requests by the City and/or Director shall be sent by certified mail, return receipt requested, addressed to: President, Omni Hotels, 420 Decker Drive, Irving, Texas, 75062, with a copy addressed to the General Counsel at the same address. 21 The parties, or either of them, may designate in writing from time to time any changes in addresses or any addresses of substitute or supplementary person in connection with said notices. The effective date of service of any such notice shall be the date such notice is mailed to Omni or said manager. SECTION 12.04. AMENDMENTS. This Contract may be amended from time to time by written contract, duly authorized and executed by representatives of all the parties hereto. SECTION 12.05. FORCE MAJEURE. Neither the City nor Omni shall be deemed in violation of this Contract if it is prevented from performing any of the obligations hereunder by reason of strikes, boycotts, labor disputes, embargoes, shortage of material, acts of God, acts of the public enemy, acts of superior governmental authority, weather conditions, riots, rebellion, sabotage, or any other circumstances which are not within its control. SECTION 12.06. INVALID PROVISIONS. In the event any covenant, condition or pro-vision herein contained is held to be invalid, illegal or unenforceable by a court of competent jurisdiction,the invalidity, illegality,or unenforceability or effect of such covenant, condition or provision shall not affect any other provision thereof, and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. SECTION 12.07. HEADINGS. The headings of the several Articles and Sections of this Contract are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of any provisions of this Contract and shall not be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof. SECTION 12.08. SUCCESSORS AND ASSIGNS. All of the terms, provisions, covenants, stipulations, conditions and considerations of this Contract shall extend to and bind the permitted legal representatives, successors, sub-lessees and assigns of the respective parties hereto. SECTION 12.09. DISCRIMINATION. Omni will not discriminate or permit discrimination against any person or groups of persons on the grounds of race, color or national origin, or any other manner. Omni agrees to furnish service on a fair, equal and nondiscriminatory basis to all users thereof and to charge fair, reasonable and non-discriminatory prices for each unit or service. SECTION 12.10. ENTIRE CONTRACT. This Contract constitutes the entire contract between the parties hereto with regard to the subject matter herein, and this Contract may be amended only in writing and executed by duly authorized representatives of the parties hereto. 22 SECTION 12.11. DEFINITIONS. As used herein, the following terms will have the meaning ascribed to such term below: (A) As used herein, "alcoholic beverage" includes wine, distilled spirits, and beer. (B) "Alcoholic Beverage Service": The sale or distribution of wine, distilled spirits or beer whether over-the-counter at fixed and mobile food and beverage areas or as part of Catering Services. (C) "Catering Services": Pre-arranged food and non-alcoholic beverage related functions for which a guarantee in number of meals or persons served has been made at an established price per person or per meal, provided to lessees and their invitees pursuant to the terms and conditions of agreement(s) between the lessee and the City or Omni. (D) "Concession Services": Over-the-counter cash and credit card sales conducted at fixed and mobile food and beverage areas at the Center. Applied to all food and beverage services including Alcoholic Beverage Service and other items approved by the Director or his designee at concession stands, vending machines and at other areas designated by the Director or his designee, but may not include, employees' assembly rooms or work areas. Also includes, but is not limited to, the operation of a cafeteria, non-exclusive catering services, and other food and beverage service operations as may reasonably be required by the lessee or the Director or his designee. (E) "Economic Development Agreement": That certain Economic Development Agreement dated of even date herewith, between Omni Fort Worth Partnership, L.P. and the City. (F) "Food Service Area": Refers to any space whether it is permanent, temporary or portable within the Center where food or beverage is either produced or served. (G) "Ground Lease" That certain Ground Lease Agreement dated of even date herewith, between Omni Fort Worth Partnership, L.P. and the City. (H) "Gross Receipts": Refers to the total amount of money received or to be received by Omni or by any agent, employee or subcontractor from all sales, whether for cash or credit, whether collected or uncollected, made as a result of the service rights granted under this Contract; provided, however, that any sales taxes and/or alcoholic beverage taxes imposed by local or federal law which are separately stated to and paid by a purchaser of any item sold by Omni or anyone acting by or on behalf of Omni from an authorized service or activity under this Contract and directly payable to a taxing authority shall be excluded from the computation of"Gross Receipts". "Gross Receipts" shall include all monies paid or to be paid by a purchaser of any services provided by Omni, including but not limited to rental equipment, labor, and coat check. The sale of any goods, food, beverage or other items that are returned by the purchaser and accepted by Omni exclusive of any sales tax may be deducted from Gross Receipts. 23 (I) "Room Block A.ggreement": That certain Room Block Agreement dated of even date herewith, between Omni Fort Worth Partnership, L.P. and the City. SECTION 12.12. ESTOPPEL AGREEMENTS. Within twenty(20) days after receipt of written request from the other party, Omni and City shall execute and deliver to each other (and to such other person as the requesting party may designate) an estoppel certificate or agreement certifying that this Contract is unmodified and is in full force and effect (or if there have been modifications, stating that this Contract is in full force and effect as modified), stating that the requesting party is not in default (or stating the nature of any alleged default) and further stating any matters reasonably requested by the other party. Notwithstanding anything to the contrary set forth in this Section 12.12, neither Omni nor the City will be required to execute such an estoppel certificate more often than two (2) times in any twelve (12)-month period. IN TESTIMONY WHEREOF, City has caused its name to be subscribed below and attested by its City Secretary, pursuant to a resolution duly adopted by its City Council; and Omni has caused its corporate name to be subscribed by its duly authorized officer pursuant to a resolution duly adopted by its board of directors, as of the year and day first above written. Approved as to form: CITY: CITY OF FORT WO H �CityAttorney 20619 3-Z9-05 ATTEST: By: — C' Ma ger City Secretary OMNI: OMNI HOTELS MANAGEMENT CORPORATION, a Delaware corporation By:_ Name: CottJo on Title: Vice President 24 THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority In and for the State of Texas, on this day personally appeared jce, , known to me to be the person whose name is subscribed to the foregoin instrument and known to me to be the City Manager for the City of Fort Worth, Texas, a Texas home-rule city, and acknowledged to me that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated, as the act and deed of said City. GIVE1 o ffice, this the 0,day of April, 2005. DEM J.TANNER -%I [SEAL] i; e MY COMMISSION EXPIRES Usrrh 91,2008 `' tary b , tate cif Texas My Commission Expires: Printed Name of Notary Public THE STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority in and for the State of Texas, on this day personally appeared Scott Johnson, known to me to be the person whose name is subscribed to the foregoing instrument and known to me to be the Vice President of Omni Hotels Management Corporation, a Delaware corporation, and acknowledged to me that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated, as the act and deed of said corporation. GIVEN UNDER MY HAND and seal of ce, t ' the 10dayof April, 2005. [S E A L] rte: BETi1'J.TANNER MY COMMISSION EXPIRES No bl'c State of Texas M Co s `A` x ire "31,2008 Y Printed Name of Notary Public 25 EXHIBIT A DEPICTION OF CONCESSION PREMISES [The depiction of the Concession Premises follows this cover page.] Exhibit A—Depiction of Concession Premises—Cover Page go, USC Uln FU = � - ® I N Y J mw < m s a UE-1- W � AL M Y000 o a ^n 1a a z U /1j 1 .V—d , • �• 133Ha H1NW EXHIBrr B LIST OF CURRENT EQUIPMENT Equipment uanti Restaurant Bev. 3.0 Liter Delux A' of 5 SMW Flatware 2000 Place Set Delco--Knives, Forks 1762 SMW Flatware 2000 Place Set Delco-- Spoons 1100 SMW Flatware 2000 Place Set Delco--Cups, Saucers 1802 Restaurant Bev. 3.0 Liter Delux Ai of 2 Plate Covers Low Profile CVR 1862 Coffee/SS 5 Gallon Oneida/Royal 30 11 Butter Spreader 16 Pastry Servers 4 Buffet S oons-- Solid 14 Buffet Spoons-- Slotted 6 Buffet Tons 34 Salt&Pepper 94 Water Pitchers 61 Rest-Ovens Steamer Groen 1 Rest-Cons -- Woodstock Equipment SS 1 Motorola Radios 13 Track Lighting 1 Doghouse Sign 1 Menu Boards 12 Finding Units 1 Mural Packages 4 Sign Dimensional 1 Ice Machine 1 Large Refrigerator 4 Mobile Soda Cart 4 Dinner Plates 868 Moli Cart 6 Dish Caddy Salad Plate 1 Dish Caddy B&B Plate I Salad Spoon 83 Buffet Forks 6 Cold Meat Fork 8 Buffet Ladles 127 B&B Plate 1819 Wine Glass 754 Salad Plate 1214 Chafers Full 18 Exhibit B—List of Current Equipment—Page 1 Equipment Ouantitv Coffee Cups 1421 Coffee Stainless Steel 3 Gallon 6 Coffee Saucer 1402 Beverage Glass Cardinal 697 Glass Sugar Container 82 Popcorn Machine 4 Deli Coolers 2 Mobile Beer Cart 3 Large Refrigerator 4 Mobile Ice Cream Cart 1 Mobile Deli Cart 1 Mobile Cappuccino, Cart 1 Pizza Cart/Oven 1 Proofing Cab 1 Food Warming Carts 3 Braising Pan 12 Auto Sham Slow Cooker 1 Chrome Security Cage 1 Exhibit B—List of Current Equipment—Page 2 Dallas_1\4092740\13 42379-1 4/11/2005