HomeMy WebLinkAboutContract 33139-EC1 CITY SECRETARY
CONTRACT NO.,
ESTOPPEL CERTIFICATE
REGARDING AMENDED AND RESTATED
ECONOMIC PROGRAM DEVELOPMENT 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; Amended and Restated Economic Development Program
Agreement by and between City of Fort Worth, Texas, a home rule municipality
organized under the laws of the State of Texas (the "Litf), and Omni Fort Worth
Partnership, L.P. ("Omni"), effective April 27, 2005 (City Secretary Contract No. 33139)
(the"EDPA")
Pursuant to Section 29 of the EDPA, at the request of Omni the City is required to
provide estoppel certificates when requested in connection with a bona fide business purpose of
Omni. 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 EDPA.
The City hereby certifies and agrees as follows:
1. A true, correct and complete copy of the EDPA is attached hereto as Exhibit A.
The EDPA is in full force and effect as of the date hereof, and has not been
modified,changed, altered, amended or amended.
2. The Project has been completed in accordance with and as provided by the terms
of the EDPA, including fulfillment of all construction and related commitments.
The Completion Date of the Project was January 9, 2009 (the date upon which a
temporary certificate of occupancy was issued). The anticipated remaining Term
will expire on May 15, 2027.
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 EDPA, and ill
the best of the City's knowledge, no event has occurred and no condition a �ORD
which, with the giving of notice or the lapse of time or both, w El a
default under the EDPA. CITY SECRETA
�RY
FTs WORTH, 11X
4. All employment and supply and service commitments of Omni under the EDPA
have been fulfilled, and Omni has operated the Hotel in accordance with the
Minimum Hotel Operating Standards, from the date such obligations arose
through the date hereof. Omni has earned, and has received, all Performance-
Based Grants, Lease-Based Grants, Completion Grants and other sums available
to Omni under the EDPA through the date hereof.
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
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By: Gh�
City Secretary Name: Fernando Costa
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pp°OQOa�®���, Title: Assistant City Manager
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By:
Peter Vaky
Title: Deputy City Attorney
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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1 4
EXHIBIT A
EDPA
(Attached)
CITY SECRETARY
CONTRACT NO.
AMENDED AND RESTATED
ECONOMIC DEVELOPMENT PROGRAM AGREEMENT
This AMENDED AND RESTATED ECONOMIC DEVELOPMENT
PROGRAM AGREEMENT ("Agreement") is entered into by and between the CITY
OF FORT WORTH ("City"), a home rule municipal corporation organized under the
laws of the State of Texas, and OMNI FORT WORTH PARTNERSHIP, L.P.
("Omni")to be effective April 27, 2005.
RECITALS
The City and Omni hereby agree that the following statements are true and correct
and constitute the basis upon which the City and Omni have entered into this Agreement:
A. The City has created an Economic and Community Development
Department in order to, among other things, oversee economic development programs
authorized by Texas law and approved by the City Council, including those authorized by
Chapter 380 of the Texas Local Government Code, to promote state and local economic
development and to stimulate business and commercial activity in the City, as further
outlined in Resolution No. 2704, adopted by the City Council on January 30, 2001.
B. In accordance with the 2005 Comprehensive Plan adopted by the City
Council pursuant to M&C G-14691 on February 22, 2005, the City's economic
development programs are based on a model of custom-designed incentives and
partnership programs with private businesses on a case-by-case analysis of individual
projects to help ensure the growth and diversification of the local economy.
C. The 2005 Comprehensive Plan recognizes that tourism, both for business
and for pleasure, is a significant component of the City's economy and cites the
importance of the Convention Center and surrounding hotels as critical elements in the
City's efforts to promote tourism in the City.
D. A study undertaken in 2002 on behalf of the City by HVS International
(the "HVS Study") reveals that if the City is to be competitive amongst its peers, both in
Texas and throughout the nation, in its ability to attract convention business to the
Convention Center, the City needs to have a hotel with at least 600 first class guest rooms
located adjacent to the Convention Center.
E. Based on the recommendations of the HVS Study, on July 15, 2003 the
City issued a request for proposals for development of a first-class, 600-room Convention
Center headquarters hotel. Nine proposals were submitted to the City as of August 28,
2003. A review of those proposals and subsequent negotiations during the fall of 2003
Page t
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
and winter of 2003/4 led the City to select Omni as the developer of such a Convention
Center headquarters hotel.
F. Omni is willing to construct the Project, including the Hotel, on real
property owned by the City and in accordance with the terms and conditions of this
Agreement. This property is located within Tax Increment Reinvestment Zone Number
Eight, City of Fort Worth, Texas (the "TIF") and is subject to development under the
TIF's project plan, as defined by Section 311.011 of the Texas Tax Code, which has been
approved by the City Council.
G. Based on all information previously known or provided to the City
Council, including, but not limited to, the HVS Study, the City Council believes that this
Project will (i) bring additional convention business to and generate increased tourism in
the City; (ii) provide increased employment opportunities to citizens of the City; (iii)
cause new private development to occur in the vicinity of the Hotel Property, (iv)
generate additional net tax revenues immediately from Residential Units that may be
constructed on top of the Hotel and upon expiration of the economic development
Program established herein from all improvements located on the Hotel Property.
Therefore, the City Council hereby finds and determines that by entering into this
Agreement, the potential economic benefits that will accrue to the City under the terms
and conditions of the Program and this Agreement are consistent with the City's
economic development objectives of the City, as set forth in, among other things, the
2005 Comprehensive Plan.
H. Omni intends to construct Residential Units on top of the Hotel. These
Residential Units will be created as separate legal parcels from the Hotel pursuant to a
condominium regime and, except for those Residential Units that remain unsold and
otherwise unused for residential purposes during the first five (5) years following the
Completion Date of the Project, will be fully taxable by the City and will not be subject
to or serve as the basis for calculating any of the grants, financial incentives or other
benefits granted to Omni pursuant to this Agreement.
I. In connection with the development and operation of the Project, Omni
has filed or will file a Condominium Declaration in the real property records of Tarrant
County, and Omni has formed or will form a Master Condominium Association whereby
Omni will own separate condominium units representing ownership of the Hotel, the
Hotel Garage and the Residential Units. The City has agreed to cooperate with Omni in
any manner reasonably necessary to create this condominium regime and to file the
Condominium Declaration in the real property records of Tarrant County.
J. The City and Omni previously entered into that certain Economic
Development Program Agreement dated April 27, 2005, a public document on file in the
City Secretary's Office as City Secretary Contract No. 31734, as amended by that certain
Amendment No. 1 to Economic Development Program Agreement effective as of
December 15, 2005, a public document on file in the City Secretary's Office as City
Secretary Contract No. 32921 (collectively, the"First 380 Agreement").
Page 2
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
K. Due to construction costs for the Project that will be higher than originally
anticipated, the City and Omni wish to enter into this Agreement, which will replace and
supersede the First 380 Agreement, in order to increase the amount of the economic
incentives that the City will provide Omni in return for Omni's agreement to move
forward with the Project and the City's receipt of the public benefits previously outlined
in these Recitals. Under this Agreement, the City and Omni will share those increased
costs.
L. In addition to this Agreement, the City and Omni (or an affiliate of Omni)
previously entered into various agreements that took effect on April 27, 2005, including
(i) the Tax Abatement Agreement, as amended; (ii) the Ground Lease; (iii) the Room
Block Agreement; (iv) a Contract for Exclusive Food, Beverage and Alcoholic Beverage
Services at the Convention Center; and (v) an Option Agreement to Enter into Retail
Lease Agreement pertaining to the City Retail Space (collectively, the "Development
Documents").
M. This Agreement is authorized by Chapter 380 of the Texas Local
Government Code.
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. INCORPORTION OF RECITALS.
The City Council hereby finds, and the City and Omni hereby agree, that the
recitals set forth above are true and correct and form the basis upon which the City has
entered into this Agreement.
2. DEFINITIONS.
In addition to terms defined in the body of this Agreement, the following terms
shall have the definitions ascribed to them as follows:
Abatement Term means the ten (10)-year term during which Omni will receive
certain tax abatements under the Tax Abatement Agreement, as more specifically defined
in Section 5.2 of the Tax Abatement and as more specifically outlined in the Tax
Abatement Agreement.
Page 3
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership.LP.
Central City means the area of the corporate limits of the City within Loop 820
(i) consisting of all Community Development Block Grant ("CDBG") eligible census
block groups; (ii) all Enterprise Zones; and (iii) all census block groups that are
contiguous by seventy-five percent (75%) or more of their perimeter to CDBG eligible
block groups or Enterprise Zones, as well as any CDBG-eligible block in the corporate
limits of the City outside Loop 820, as more specifically depicted in the map attached
hereto as Exhibit "A", which is hereby made a part of this Agreement for all purposes.
Central City Resident means an individual whose principal place of residence is
located within the Central City.
City Hotel Occupancy Tax Revenue means the amount of revenue from the
hotel occupancy tax lawfully assessed and collected by the City pursuant to Chapter 351
of the Texas Tax Code and Chapter 32 of the City Code that is derived from or
attributable to the Hotel and paid in a given year to the City.
City Hotel Property Tax Revenue means the amount of revenue from a
municipal tax lawfully assessed and received by the City pursuant to Texas Tax Code §
302.001(c) based on (i) the entire taxable appraised real property value of the (a) Hotel,
(b)the Hotel Garage(but only if the aggregate taxable appraised value of the Residential
Units as of the first appraisal following the Completion Date conducted by Tarrant
Appraisal District or the appraisal district that has jurisdiction at the time is at least $8.6
million), and (c) the Hotel Property (but only if the Hotel Property has been acquired by
Omni pursuant to Omni's exercise of the Option or the City's exercise of the Put Option
in accordance with Article IX of the Ground Lease), and (ii) the entire taxable appraised
value of Tangible Personal Property located in (a) the Hotel and (b) the Hotel Garage
(but only if the aggregate taxable appraised value of the Residential Units as of the first
appraisal following the Completion Date conducted by Tarrant Appraisal District or the
appraisal district that has jurisdiction at the time is at least $8.6 million). City Hotel
Property Tax Revenue does not include any tax revenue assessed and received by the
City that is based on the taxable appraised value of any of the Residential Units or any
Tangible Personal Property located in any of the Residential Units.
City Hotel Sales Tax Revenue means the amount of revenue from a municipal
sales tax lawfully assessed and received by the City pursuant to Texas Tax Code §§
321.101(a) and 321.103 that is derived from or attributable to sales transacted in the
Hotel only, whether by Omni or another person or entity, for merchandise physically
located in the Hotel and/or the Hotel Garage. City Hotel Sales Tax Revenue specifically
excludes all revenue from (i) the Crime Control District Sales Tax imposed by the City
pursuant to Texas Tax Code §323.105 and Local Government Code §363.005 and (ii) the
Transit Authority Sales Tax paid to the City by the Fort Worth Transportation Authority
under City Secretary Contract No. 19689, as previously or subsequently amended or
restated, from the sales tax imposed by the Fort Worth Transportation Authority pursuant
to Texas Tax Code Chapter 322.
Page 4
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
City Retail Space means those portions of the ground floor of the parking garage
owned by the City and located to the north of the Hotel Property which are dedicated for
retail operations and leased by the City to Omni.
City Sources Capped Amount means an aggregate gross amount equal to
Eighty-nine Million Dollars ($89,000,000) that is attributable to (a) those portions of
Program Grants calculated on the basis of City Hotel Occupancy Tax Revenue and City
Hotel Sales Tax Revenue (and to the extent that Sections 5.1.2 and 5.1.5 apply, Omni
Residential Unit Property Tax Revenue and City Hotel Property Tax Revenue,
respectively), plus (b) the value of abatements received by Omni pursuant to the Tax
Abatement Agreement, but excluding (i) any sums payable by the City to Omni as a
Lease-Based Grant, as defined in and in accordance with Section 6; (ii) any sums payable
by the City to Omni as a Completion Grant, as defined in and in accordance with Section
7; (iii) any sums payable by the City to Omni as a Hotel Property Sale-Based Grant, as
defined in and in accordance with Stiction 8; (iv) any sums payable by the City to Omni
as a State Substitute Grant, as defined in and in accordance with Section 9, including any
interest on the Guaranteed State Amount, as defined in and in accordance with Section
9.3; and (v) any interest on the unpaid Guaranteed City Amount, as defined in and in
accordance with Sections 10.2 and 10.3.
Completion Date means the date as of which the Project is Substantially
Complete.
Completion Deadline means 1,320 calendar days from the Effective Date of this
Agreement, as may be extended by Force Majeure.
Completion Guaranty means the guaranty from Omni's ultimate parent
company, TRT Holdings, Inc. in the form attached hereto as Exhibit "B", which is
hereby made a part of this Agreement for all purposes and pursuant to which TRT
Holdings, Inc. guarantees, at no cost to the City, the timely completion and payment of
costs associated with construction of the Project.
Convention Center means the Fort Worth Convention Center located in the City
at 1201 Houston Street.
CPR Mediation Procedure means the mediation procedure promulgated by the
CPR Institute for Dispute Resolution.
Enterprise Zone means a zone designated as such pursuant to the Texas
Enterprise Zone Act, Chapter 2303, Subchapter F of the Texas Government Code.
Excluded Hotel Revenue means any City Hotel Occupancy Tax Revenue, City
Hotel Sales Tax Revenue, City Hotel Property Tax Revenue, Omni Residential Unit
Property Tax Revenue, State Hotel Occupancy Tax Revenue and/or State Hotel Sales Tax
Revenue not used to calculate the amount of a Program Grant payable by the City to
Omni under this Agreement, whether on account of a reduction in the amount of or a
Page 5
Amended and Restated&gnomic Development Program Agreement
between City of Fort Worth and Omni Fat Worth Partnership,LP.
suspension of any such Program Grant or on account of the City Sources Capped Amount
being met.
First Tier Flag means one of the following brand names under which the Hotel is
operating and marketing itself: Westin; Sheraton; Marriott; Hilton; Renaissance; Hyatt,
Omni; or another first-class hotel brand name that has specifically been approved by the
City Council of the City for purposes of this Agreement, which approval shall not be
unreasonably withheld.
Force Majeure means (i) with respect to Omni, an event beyond Omni's
reasonable control, including, without limitation, acts of God, fires, strikes, national
disasters, wars, riots, material or labor restrictions, delays caused by unforeseen structural
issues, weather delays, injunctions or other legal proceedings brought by third parties,
unreasonable delays by the City in issuing any permits, consents or certificates of
J occupancy or conducting any inspections of or with respect to the Project, delays caused by
the City's failure to complete "Lessor's Work" as provided for and defined in the Ground
Lease, or delays caused by unforeseen construction or site issues, but shall not include
construction delays caused due to purely financial matters involving Omni, such as,
without limitation,delays in the obtaining of adequate financing, and (ii)with respect to the
City, an event beyond the City's reasonable control, including, without limitation, acts of
God, fires, strikes, national disasters, wars, riots, material or labor restrictions, or acts of
third parties.
Fort Worth Certified M/WBE Company means a minority or woman-owned
business that has received certification as either a minority business enterprise (MBE) or
a woman business enterprise (WBE) by either the North Texas Regional Certification
Agency (NTRCA) or the Texas Department of Transportation (TxDOT), Highway
Division, and has a principal office located within the corporate limits of the City.
Fort Worth Comnanv means a business that has a principal office located within
the corporate limits of the City.
Fort Worth Resident means an individual whose principal place of residence is
located within the corporate limits of the City.
Full-time Equivalent Job means a job held by one (1) or more individuals
employed by Omni (or its Hotel manager and any other sublessee or subcontractor
operating within the Hotel and the Hotel Garage) with respect to the Hotel or the Hotel
Garage for a period of forty(40) hours per week.
Ground Lease means that certain lease agreement pursuant to which the City will
lease the Hotel Property to Omni.
Hard Construction Costs means the following site development and building
costs expended directly in connection with the Project: actual construction costs, signage
costs, and the costs of labor, supplies and materials, including all costs and fees paid to
Page 6
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
Omni's general contractor, subcontractors and suppliers.
Hotel means a hotel with, among other things, approximately six hundred (600)
guest rooms; two (2) full-service restaurants; a lobby bar; approximately 48,000 square
feet of dedicated meeting space; an exercise facility; an outdoor pool with sundeck; valet
parking service; business center; wireless Internet access in guest rooms, lobby and
public spaces; and other supporting facilities commensurate with a full-service
convention center hotel. The Hotel Garage and the Residential Units are not part of the
Hotel.
Hotel Garage means the parking garage for the Hotel and the Residential Units
with at least four hundred (400) spaces and other related improvements constructed by
Omni on the Hotel Property.
Hotel Property means the City-owned land on which the Hotel, the Hotel Garage
and the Residential Units will be constructed and located and excludes any improvements
thereon, including the Hotel, the Residential Units and the Hotel Garage themselves. A
diagram of the Hotel Property is attached hereto as Exhibit "C".
Minimum Hotel Oyeratine Standards means the operating criteria (but not the
facilities standards) necessary for a hotel property to receive either a three (3)-star rating
by Mobil Travel Guide or the operating criteria(but not the facilities standards) necessary
for a hotel property to receive a four (4)-diamond rating by the American Automobile
Association, both of which are described and set forth in Exhibits "D-1" and "D-2"
respectively, which Exhibits are attached hereto and hereby made a part of this
Agreement for all purposes. Omni shall at no time be required to demonstrate receipt or
maintenance of such ratings.
Omni Affiliate means an entity that controls, is controlled by or is under common
control with Omni.
Omni Residential Unit Property Tax Revenue means the amount of revenue
from a municipal tax lawfully assessed and received by the City pursuant to Texas Tax
Code § 302.001(c) based on the entire taxable appraised real property value of all
Residential Units owned by Omni or an Omni Affiliate. Omni Residential Unit Property
Tax Revenue does not include any tax revenue assessed and received by the City that is
based on the taxable appraised value of any Residential Unit that is owned by a person or
entity other than Omni or an Omni Affiliate or any Residential Unit owned by Omni or
an Omni Affiliate that is leased or otherwise inhabited by any person or entity.
Option has the same meaning as that ascribed to it in Section 9.1 of the Ground
Lease.
Prop-ram means the economic development program, established in general by
City Council Resolution No. 2704, and outlined specifically in this Agreement, which is
authorized by Chapter 380 of the Texas Local Government Code.
Page 7
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
Program Grants means the economic development grants paid by the City to
Omni in accordance with this Agreement and as part of the Program.
Proiect means the Hotel, Hotel Garage and Residential Units.
Put Option has the same meaning as that ascribed to it in Section 9.2 of the
Ground Lease.
Residential Units means at least 125,000 aggregate square feet of residential
condominium spaces constructed on top of the Hotel and initially owned by Omni.
Room Block Agreement means the written agreement between the City and
Omni under which Omni will cause the Hotel to have reserved specific percentages of the
Hotel's standard guest rooms and suites for specific periods of time in the future for
attendees, participants and planners of conventions and/or trade shows at the Convention
Center.
State Hotel Occupancy Tax Revenue means the amount of revenue from the
hotel occupancy tax lawfully assessed and collected by the State of Texas pursuant to
Chapter 156 of the Texas Tax Code and refunded to the City by operation of Section
351.102 of the Texas Tax Code, and that is derived from or attributable to the Hotel.
State Hotel Sales Tax Revenue means the amount of revenue from a sales tax
lawfully assessed and collected by the State of Texas pursuant to Texas Tax Code § 151
that is derived from or attributable to sales transacted in the Hotel, whether by Omni or
another person or entity, for merchandise physically located in the Hotel and/or the Hotel
Garage, and refunded to the City by operation of Sections 351.102 and 151.429 of the
Texas Tax Code.
Substantially Complete means (i) as to the Hotel and the Hotel Garage, that a
final or temporary certificate of occupancy has been issued for all of the Hotel(including,
but not limited to, all guest rooms and public areas) and the Hotel Garage, and both the
Hotel and the Hotel Garage are lawfully open for business to the general public, and (ii) as
to the Residential Units, that the core and shell of the portion of the Project comprising the
Residential Units has been constructed and the portions of the electrical, plumbing and
heating/ventilation/air conditioning systems that are common to all Residential Units have
been constructed to provide for vertical (but not necessarily horizontal) distribution
throughout the portion of the Project comprising the Residential Units, in each case
substantially in accordance with the plans and specifications for the Project.
Supply and Service Expenditures means expenditures made for supplies and
services provided directly in connection with the operation and maintenance of the Hotel
and the Hotel Garage.
Page 8
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
Tangible Personal Property means any personal property that is owned by Omni
and subject to ad valorem taxation by the City.
Tax Abatement Agreement means that agreement between the City and Omni
pursuant to which the City will abate certain real and personal property taxes payable by
Omni to the City and attributable to the Hotel and, subject to certain conditions set forth
in the Tax Abatement Agreement, the Hotel Garage, but specifically excluding any of
the Residential Units.
3. TERM.
This Agreement shall be effective as of April 27, 2005 (the "Effective Date")
and, unless terminated earlier as provided by and in accordance with this Agreement,
shall expire upon the date as of which the City has paid to Omni (i) all required
Performance-Based Grants, as defined in and pursuant to Section 5; (ii) all Lease-Based
Grants, as defined in and pursuant to Section 6; (iii) the Completion Grant, as defined in
and pursuant to Section 7; (iv) if applicable, the Hotel Property Sale-Based Grant, as
defined in and pursuant to Section 8; (iii) any required State Substitute Grant or Grants,
as defined in and pursuant to Section 9; and (v) any required City Substitute Grants, as
defined in and pursuant to Section 10 (the "Term").
4. OMNI'S OBLIGATIONS AND COMMITMENTS.
4.1. Ground Lease.
The City and Omni shall execute the Ground Lease simultaneously upon
execution of this Agreement. Subject to Section 7 of this Agreement and as
permitted by Section 272.001(b)(6) of the Texas Local Government Code, the
Ground Lease shall grant Omni an option to purchase the Hotel Property from the
City, and shall grant the City the right to put the Hotel Property to Omni, for the
fair market value of the Hotel Property at the time, which value shall be
determined by an appraiser that is selected by the City and reasonably acceptable
to Omni.
4.2. Construction and Completion of Proiect.
Omni agrees that by the Completion Deadline and in accordance with the
schedule attached hereto as Exhibit "E", which is hereby made a part of this
Agreement for all purposes, (i) at least One Hundred Million Dollars
($100,000,000) in Hard Construction Costs shall have been expended or incurred
for the Project and (ii) the Project shall be Substantially Complete. For any sums
incurred but not yet paid as of the Completion Date, Omni shall provide the City
with proof that such amounts were paid promptly following actual payment.
Page 9
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
4.3. Desisn and Architectural Standards and Style of HoteL
The Hotel will be Texas-themed, and the design of any above-ground
portion of the Hotel Garage will complement the design of the Hotel. The City
will have the right to approve the preliminary and final plans and specifications
for the Hotel and the Hotel Garage prior to Omni's causing any work to be
undertaken on the Hotel, which approvals shall not unreasonably be withheld.
Prior to approval by the City of the final plans and specifications for the Hotel and
the Hotel Garage, Omni (i) will meet monthly with a committee of individuals
designated by the City to discuss and receive comment with respect to the
preliminary plans and specifications and (ii) agrees to make not more than two (2)
presentations to the City Council of the City at times reasonably designated by the
City. If the City does not notify Omni in writing of any concerns or objections
that the City has with regard to any information or documents that must be
approved by the City pursuant to this Section 4.3 within ten (10) business days
following receipt of same (the "City Review Period"), the City shall be deemed
to have approved any such information or documents. If the City does notify
Omni in writing of any concerns or objections that the City has with regard to any
such information or documents within the City Review Period, Omni and the City
will diligently work to resolve City's concerns and objections. If Omni and the
City are unable to resolve any such concerns within ten (10) business days
following the end of the City Review Period (the "Design Resolution
Deadline"), the parties shall endeavor to settle the dispute by mediation pursuant
to the then-current CPR Mediation Procedure, in which case the Completion
Deadline shall be extended by the number of days that elapse between the Design
Resolution Deadline and final resolution of the City's concerns and objections,
whether by mediation or otherwise. If the parties are not able to settle the dispute
by mediation, the dispute shall be settled pursuant to and in accordance with the
arbitration procedure set forth in Section 12.4.3. Omni agrees that it shall not
make any material modification to the plans and specifications approved by the
City unless it notifies the City in writing and receives approval from the City in
accordance with the procedure set forth above.
4.4. Completion and Performance Guaranty.
Because the Project will not be owned or paid for by the City at any time,
Omni will not be subject to statutory competitive bidding requirements applicable
to the City. The Completion Guaranty shall be used to assure that the Project will
be Substantially Completed at no cost to the City in a manner that fully protects
the City from liability pursuant to operation of Section 2253.027 of the Texas
Government Code. Notwithstanding the foregoing, the City and Omni
acknowledge and agree that this Agreement and all other Development
Documents will automatically terminate (and the parties will have no further
rights or obligations thereunder) if the Completion Guaranty is not delivered to
the City by 11:59 P.M. on January 31, 2006, with the understanding that Omni
Page 10
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
may not commence or cause to be commenced any Project construction work on
the Hotel Property unless and until the Completion Guaranty has been delivered
to the City. The Completion Guaranty shall allow the City to collect from TRT
Holdings, Inc. any overpayments of any Program Grants that reporting "true-ups"
or audits undertaken pursuant to this Agreement confirm to have occurred, with
the understanding that the City shall first seek reimbursement for any such
overpayment from Omni. Notwithstanding anything to the contrary herein, if the
City enforces the Completion Guaranty in order to complete the Project, the City
shall not have a right to terminate this Agreement, nor shall the City have the right
to reduce any Program Grant, for Omni's failure by the Completion Deadline to
expend minimum Hard Construction Costs for the Hotel or to Substantially
Complete the Project.
4.5. Construction Spending Commitments.
4.5.1. Fort Worth Companies.
By the Completion Date, Omni agrees to have spent or incurred a
minimum of Twenty Million Dollars ($20,000,000) in Hard Construction
Costs for the Project with Fort Worth Companies. For any sums incurred
but not yet paid as of the Completion Date, Omni shall provide the City
with proof that such amounts were paid promptly following actual
payment.
4.5.2. Fort Worth Certified M/WBE Companies.
By the Completion Date, Omni agrees to have spent or incurred a
minimum of Fifteen Million Dollars ($15,000,000) in Hard Construction
Costs for the Project with Fort Worth Certified M/WBE Companies.
Dollars spent with Fort Worth Certified M/WBE Companies shall also
count as dollars spent with Fort Worth Companies for purposes of the
commitment set forth in Section 4.5.1. This commitment has been
approved by the City's Minority and Women Business Enterprise
Advisory Committee. For any sums incurred but not yet paid as of the
Completion Date, Omni shall provide the City with proof that such
amounts were paid promptly following actual payment.
4.6. Employment Commitments.
In the event that material portions of the Hotel are closed on account of
casualty or renovation and Omni is diligently pursuing repair or renovation of the
Hotel, the City and Omni will negotiate in good faith and mutually agree to
equitable adjustments of the employment commitments set forth in this Section
4.6, taking into account the circumstances existing at the time with respect to the
casualty or renovation and the degree of repair or renovation required.
Page 11
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
4.6.1. Overall Employment.
From the Completion Date through the end of the Term of this
Agreement (as measured for each Annual Reporting Month, in accordance
with and defined in Section 4.11.5 hereof), Omni agrees that at least two
hundred fifty (250) Full-time Equivalent Jobs shall be provided and filled
in the Hotel and the Hotel Garage.
4.6.2. Fort Worth Residents.
From the Completion Date through the end of the Term of this
Agreement (as measured for each Annual Reporting Month, in accordance
with and defined in Section 4.11.5 hereof), Omni agrees that at least one
hundred twenty-five(125) Full-time Equivalent Jobs provided in the Hotel
and the Hotel Garage shall be held by Fort Worth Residents. Residency of
an employee shall be determined by the address of residence provided by
the employee.
4.6.3. Central City Residents.
From the Completion Date through the end of the Term of this
Agreement (as measured for each Annual Reporting Month, in accordance
with and defined in Section 4.11.5 hereof), Omni agrees that at least sixty-
two (62) Full-time Equivalent Jobs provided in the Hotel and the Hotel
Garage shall be held by Central City Residents. A Full-time Equivalent
Job held by a Central City Resident shall also count as a Full-time
Equivalent Job held by a Fort Worth Resident for purposes of the
commitment set forth in Section 4.6.2. Residency of an employee shall be
determined by the address of residence provided by the employee.
4.7. Supply and Service Expenditure Commitments.
4.7.1. Fort Worth Companies.
Beginning with the calendar year in which the Completion Date
occurs, and in each subsequent year of the Term of this Agreement, Omni
will cause at least $100,000 in Supply and Service Expenditures to be
made with Fort Worth Companies; provided, however, that if the
Completion Date occurs on a date other than January 1, then only for the
calendar year in which the Completion Date occurs, this commitment shall
be reduced to an amount equal to the product of$100,000 multiplied by a
fraction, the numerator of which is the number of days remaining in the
year after the Completion Date and the denominator of which is 365.
Omni's compliance with this Section 4.7.1 shall be subject to the grace
period allowed by Section 5.3.4.
Page 12
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
4.7.2. Fort Worth Certified M/WBE Companies.
Beginning with the calendar year in which the Completion Date
occurs, and in each subsequent year of the Term of this Agreement, Omni
will cause at least $50,000 in Supply and Service Expenditures to be made
with Fort Worth Certified M/WBE Companies; provided, however, that if
the Completion Date occurs on a date other than January 1, then only for
the calendar year in which the Completion Date occurs, this commitment
shall be reduced to an amount equal to the product of$50,000 multiplied
by a fraction, the numerator of which is the number of days remaining in
the year after the Completion Date and the denominator of which is 365.
Dollars spent with Fort Worth Certified M/WBE Companies shall also
count as dollars spent with Fort Worth Companies for purposes of the
commitment set forth in Section 4.7.1. This commitment has been
approved by the City's Minority and Women Business Enterprise
Advisory Committee. Omni's compliance with this Section 4.7.2 shall be
subject to the grace period allowed by Section 5.3.5.
4.8. Minimum Hotel Operating Standards.
Throughout the Term and to the extent that Omni is operating the Hotel,
the Hotel shall at all times be operated in accordance with the Minimum Hotel
Operating Standards, as defined in Section 2.
4.9. Competitive Name Brand.
Throughout the Term and to the extent that Omni is operating the Hotel,
the Hotel must be operating and marketing itself under a First Tier Flag brand
name that includes the words "Fort Worth". So long as Omni owns the Hotel, the
Hotel will be branded as the"Omni Fort Worth Hotel."
4.10. Room Block Agreement.
The City and Omni have executed the Room Block Agreement. The
Room Block Agreement shall be in effect and in full force beginning April 27,
2005 and at all times thereafter until the expiration date set forth therein.
4.11. Reports and Filings.
4.11.1. Plan for Use of Fort Worth Certified M/WBE Companies.
Omni's plan as to how it will attain its construction spending
commitments for Fort Worth Certified M/WBE Companies, as outlined in
Section 4.5.2, is to make such commitments part of the bid conditions for
the Project construction contract and to require the selected general
Page 13
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
contractor to comply with such requirements. Omni shall also monitor the
general contractor's compliance with such requirements. Omni agrees to
meet with the City's M/WBE Office and Minority and Women Business
Enterprise Advisory Committee from time to time as reasonably necessary
for assistance in implementing such plan.
4.11.2. Monthly Spendinz Resorts.
From the date as of which Omni receives a permit to initiate
construction of any portion of the Project until the Completion Date, in
order to enable the City to (i) assist Omni in meeting its commitment for
construction spending with Fort Worth Certified M/WBE Companies and
(ii) calculate the amount of each Completion Grant that is payable
pursuant to Section 7.1, Omni will provide the City with a monthly report
(due no later than the last day of each month for the preceding calendar
month) in a form reasonably acceptable to the City that specifically
outlines the (i) then-current aggregate Hard Construction Costs expended
by and on behalf of Omni for construction of the Project as well as such
Hard Construction Costs expended since the last date reported in the
previous month's report (the "Incremental Construction
Expenditures") and (ii) the then-current aggregate Hard Construction
Costs expended by and on behalf of Omni with Fort Worth Certified
M/WBE Companies for construction of the Project. If final information is
not available when the monthly report is filed, such information shall be
included on the next monthly report following availability of such
information. Omni agrees to meet with the City's M/WBE Office and
Minority and Women Business Enterprise Advisory Committee from time
to time as reasonably necessary for assistance in implementing such plan
and to address any concerns that the City may have with such plan.
4.11.3. Construction Spendine Reports.
Once Omni has caused to be expended at least $100,000,000 in
Hard Construction Costs for the Project, Omni will make available to the
City data that specifically outlines such expenditures, together with
supporting invoices and other documents necessary to demonstrate that
such amounts were actually paid by Omni.
In addition, as soon as practicable but within one hundred eighty
(180) calendar days following the Completion Date, Omni will provide the
City with a report in a form reasonably acceptable to the City that
specifically outlines all Hard Construction Costs expended by Omni for
construction of the Project, together with supporting invoices and other
documents necessary to demonstrate that such amounts were actually paid
by Omni. This report shall also include Hard Construction Costs
expended by Omni for construction of the Project with Fort Worth
Page 14
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership, LP.
Companies and with Fort Worth Certified M/WBE Companies, together
with supporting invoices and other documents necessary to demonstrate
that such amounts were actually paid by Omni to such companies. This
report is required in order for the City to assess Omni's compliance with
its construction spending commitments for Fort Worth Companies and
Fort Worth Certified M/WBE Companies, as set forth in Sections 4.5.1
and 4.5.2, respectively, for purposes of calculating Performance-Based
Grants paid by the City in accordance with Section 5 of this Agreement.
4.11.4. (Quarterly Supply and Service Spending Report.
Beginning on the Completion Date and through the date as of
which Omni has received all Performance-Based Grants owed by the City
pursuant to Section 5 of this Agreement, within thirty (30) calendar days
following the end of each calendar quarter Omni will provide or cause to
be provided a report to the City in a form reasonably acceptable to the City
that specifically outlines the then-aggregate Supply and Service
Expenditures made in the same calendar year with Fort Worth Companies
and Fort Worth Certified M/WBE Companies. Omni agrees to meet with
the City's M/WBE Office and Minority and Women Business Enterprise
Advisory Committee from time to time as reasonably necessary for
assistance in any given calendar year in attaining its commitment for
Supply and Service Expenditures with Fort Worth Certified M/WBE
Companies, as set forth in Section 4.7.2,or to address any concerns arising
from the report.
4.11.5. Employment Data.
On or before ninety (90) calendar days following the last day of
each Annual Reporting Month during either the period between the
Completion Date and the date as of which Omni has received all
Performance-Based Grants owed by the City pursuant to Section 5 of this
Agreement or the period between January 1 following the Completion
Date and the date as of which Omni has received all Performance-Based
Grants owed by the City pursuant to Section 5 of this Agreement,
whichever is selected by Omni at the outset, Omni shall make available or
cause to be made available to the City data that sets forth (i) the total
number of Full-time Equivalent Jobs in the Hotel and the Hotel Garage
that were provided and filled during the month of October (or another
month selected by Omni) (each an "Annual Reporting Month") and (ii)
the total number of Full-time Equivalent Jobs in the Hotel and the Hotel
Garage that were held during the Annual Reporting Month by Fort Worth
Residents and by Central City Residents, together with reasonable
documentation regarding the residency of each such employee (the
"Employment Report"). For purposes of measuring attainment of the
employment commitments set forth in Sections 4.6.1, 4.6.2 and 4.6.3,
Page 15
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
employment numbers for each Annual Reporting Month shall be deemed
to apply to the entire calendar year in which the Annual Reporting Month
occurs.
4.11.6. FF&E Reserve Data.
Following the Completion Date, upon request by the City (but no
more than two (2) times per year) Omni shall make available to the City
data that sets forth the balance of the FF&E Reserve, as defined in Section
4.14, any expenditures made from the FF&E Reserve and the nature
thereof; and, if any such expenditures were made, evidence that is
reasonably satisfactory to the City that Omni has deposited sufficient sums
necessary for the FF&E Reserve to meet the requirements of Section 4.14.
4.12. Inspection of Proiect.
At any time during the Term of this Agreement (but no more frequently
than six (6) times per year), following reasonable advance notice to Omni, the
City shall have, and Omni shall provide or cause to be provided, access to the
Project in order for the City to inspect the same to ensure compliance with this
Agreement, with the understanding that the City shall not have the right to inspect
the Residential Units following the date as of which the Residential Units are
Substantially Complete. Omni may require that any individuals inspecting the
Project on behalf of the City be escorted at all times by an employee or authorized
representative of Omni. However, Omni, its officers, agents, servants,
employees, contractors and subcontractors, shall cooperate fully with the City
during any such inspection.
4.13. Audits.
Omni agrees that no more than once per year during the Term of this
Agreement the City will have the right to audit, at the City's own expense, (i) the
financial and business records of Omni that relate to the Hard Construction Costs
expended by Omni in constructing the Project, including Hard Construction Cost
expenditures with Fort Worth Companies and Fort Worth Certified M/WBE
Companies; (ii) the employment records of Omni solely in order to ascertain the
residency of any employees that Omni has claimed as Fort Worth Residents or
Central City Residents; (iii) the financial and business records of Omni with
regard to Supply and Service Expenditures with Fort Worth Companies and Fort
Worth Certified M/WBE Companies (collectively "Project-Related Records").
Omni shall make all Project-Related Records available for review by the City at
the Hotel or at another location in the City acceptable to both parties following
reasonable advance notice by the City and shall otherwise cooperate fully with the
City during any audit.
Page 16
Amended and Restated Economic Development Program Agreement
between City of Fat Worth and Omni Fort Worth Partnership,LP.
4.14. FF&E Reserve.
Omni shall reserve in book entry form the following percentage of the
Hotel's revenues for repairs or replacements of furniture, fixtures and equipment
in the Hotel (the "FF&E Reserve") and necessary maintenance of and repairs to
the Hotel: (i) in the year in which the Completion Date occurs, 0.0%; in the first
full calendar year following the Completion Date, 1.0%; in the second full
calendar year following the Completion Date, 2.0%; in the third full calendar year
following the Completion Date and in each year thereafter, 3.5%. The
reinvestment of the FF&E Reserve shall be calculated over the life cycle of the
assets to be replaced (and such reinvestment shall be guaranteed by Omni). The
FF&E Reserve will be utilized by Omni from time to time in a commercially
reasonable manner and, in any event, as necessary to operate the Hotel in
accordance with all Minimum Hotel Operating Standards.
4.15. Pre-Marketing of Hotel
In accordance with its normal practices for opening a new hotel, Omni
shall fund expenses for pre-marketing of the Hotel (including construction of a
model room and location of pre-opening sales offices within the Convention
Center in space provided by the Convention Center at no cost) and shall prepare a
pre-marketing strategy in coordination with the City.
4.16. Restrictive Covenant.
As part of the consideration under this Agreement, Omni agrees that it will
not, without the prior written consent of the City, directly or indirectly own,
manage, market or otherwise participate in any other Omni Hotel located within a
five(5)-mile radius of the Convention Center.
4.17. Lease of City Retail Saace.
The City and Omni have executed an option to lease the City Retail Space.
The City Retail Space shall be raw, shell space and will be leased to Omni at its
fair market value at the time, which value shall be determined by an appraiser that
is selected by the City and reasonably acceptable to Omni.
4.18. City Job Training Program.
The City and a third party provider selected by the City shall administer a
job training program pursuant to which participating individuals selected by the
City and reasonably acceptable to Omni will receive the basic skills instruction
and on-site training necessary for those individuals to be qualified for
employment by Omni in Full-time Equivalent Jobs at the Hotel (the "Job
Training Program"). Solely from funds paid by Omni to the City pursuant to
Page 17
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
and in accordance with Sections 5.3.1, 5.3.2 and 5.3.3, if any, Omni shall provide
funding for the Job Training Program if it is determined that Omni failed to meet
the Overall Employment Commitment, the Fort Worth Employment Commitment
and/or the Central City Employment Commitment, as those terms are defined in
Sections 5.3.1, 5.3.2 and 5.3.3, respectively. The City, the third party provider
and Omni will consult and work together in developing the guidelines and an
appropriate curriculum for the Job Training Program. As part of the Job Training
Program, Omni will provide the City and the third party provider with a list of
open Full-time Equivalent Jobs and will give hiring preference to interns who
have successfully completed the Job Training Program. At least fifty percent
(50%)of funds contributed by Omni to the Job Training Program shall be used to
fund salaries for individuals participating in the Job Training Program
5. PERFORMANCE-BASED GRANTS.
Subject to Sections 12.4 and 12.5 and all other terms and conditions of this
Agreement, the City will pay Omni quarterly Program Grants (except for Program Grants
paid in accordance with Sections 5.1.2 and 5.1.5, which will be paid annually), beginning
with the first full quarter following the Completion Date and otherwise in accordance
with this Section 5, that are based on the degree to which Omni met its various
commitments to (i) expend minimum Hard Construction Costs for the Project with Fort
Worth Companies and Fort Worth Certified M/WBE Companies; (ii) annually employ a
minimum number of individuals, Fort Worth Residents and Central City Residents in the
Hotel and the Hotel Garage; and (iii) annually make minimum Supply and Service
Expenditures with Fort Worth Companies and Fort Worth Certified MlWBE Companies,
all as more specifically outlined in this Section 5 (each a"Performance-Based Grant").
5.1. Base Amount of Each Performance-Based Grant.
The base amount of each Performance-Based Grant (the "Base Amount")
shall be as follows:
5.1.1. Ouarterly Grants for Ouarters 1-20 (First 5 Years Followine
Completion Date).
The Base Amount of each Performance-Based Grant to be paid
quarterly for the twenty (20) consecutive quarters following the
Completion Date shall equal the sum of (i) 100% of the City Hotel
Occupancy Tax Revenue received by the City during the previous quarter,
plus (ii) 100% of the City Hotel Sales Tax Revenue received by the City
during the previous quarter(provided, however, that City Hotel Occupancy
Tax Revenue and City Hotel Sales Tax Revenue shall cease to be used in
calculating all or any portion of a Performance-Based Grant once the City
Sources Capped Amount has been reached), plus (iii) 100% of the State
Hotel Occupancy Tax Revenue received by the City during the previous
Page 18
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
quarter,plus (iv) 100% of the State Hotel Sales Tax Revenue received by
the City during the previous quarter.
5.1.2. Annual Grants for 5 Years Following Expiration of First Full
Calendar Year After Completion Date.
In addition to the quarterly Performance-Based Grants payable
hereunder, and unless and until the City Sources Capped Amount has been
reached, the City shall also pay Omni five (5) annual Performance-Based
Grants, beginning March 1 of the second full calendar year following the
Completion Date, the Base Amount of which will equal 100% of Omni
Residential Unit Property Tax Revenue received by the City between
January 31 of the same calendar year and February 1 of the preceding
calendar year. For example, if the Completion Date is October 1, 2008,
the first annual Performance-Based Grant payable pursuant to this Section
5.1.2 will be due March 1, 2010 and will be based on Omni Residential
Unit Property Tax Revenue received by the City in the period between
February 1, 2009 and January 31, 2010. Notwithstanding anything to the
contrary herein, once the City Sources Capped Amount has been reached,
the City shall no longer be obligated to pay Omni any Performance-Based
Grants based on Omni Residential Unit Property Tax Revenue.
5.1.3. Ouarterly Grants for Ouarters 21-40 (Years 6-10).
The Base Amount of each quarterly Performance-Based Grant for
the twenty-first (21st) through the fortieth (40th) consecutive quarters
following the Completion Date shall equal the sum of(i) 100% of the City
Hotel Occupancy Tax Revenue received during the previous quarter,plus
(ii) 100% of the City Hotel Sales Tax Revenue received by the City during
the previous quarter (provided, however, that City Hotel Occupancy Tax
Revenue and City Hotel Sales Tax Revenue shall cease to be used in
calculating all or any portion of a Performance-Based Grant once the City
Sources Capped Amount has been reached),plus (iii) 100% of the State
Hotel Occupancy Tax Revenue received by the City during the previous
quarter,plus (iv) 100% of the State Hotel Sales Tax Revenue received by
the City during the previous quarter.
5.1.4. Ouarterly Grants for Quarters 41-60 (Years 11-15).
Unless and until the City Sources Capped Amount has been
reached, the Base Amount of each quarterly Performance-Based Grant for
the forty-fust (41 st) through the sixtieth (60th) consecutive quarters
following the Completion Date shall equal 100% of the City Hotel
Occupancy Tax Revenue received by the City during the previous quarter.
Notwithstanding anything to the contrary herein, once the City Sources
Capped Amount has been reached, the City shall no longer be obligated to
Page 19
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
pay Omni any Performance-Based Grants.
5.1.5. Annual Grants for 5 Years Following Anniversary of
Expiration of Abatement Term Under Tax Abatement
Agreement.
In addition to the quarterly Performance-Based Grants payable
hereunder, and unless and until the City Sources Capped Amount has been
reached, the City shall also pay Omni five (5) annual Performance-Based
Grants, beginning March 1 of the second full calendar year following
expiration of the Abatement Term under the Tax Abatement Agreement,
the Base Amount of which will equal 100% of the City Hotel Property
Tax Revenue received by the City between January 31 of the same
calendar year and February 1 of the preceding calendar year. For
example, if the Abatement Term expires December 31, 2018, the first
annual Performance-Based Grant payable pursuant to this Section 5.1.5
will be due March 1, 2020 and will be based on City Hotel Property Tax
Revenue received by the City in the period between February 1, 2019 and
January 31, 2020. Notwithstanding anything to the contrary herein, once
the City Sources Capped Amount has been reached, the City shall no
longer be obligated to pay Omni any Performance-Based Grants.
5.1.6. Ouarterly Grants for Ouarters 61-72 (Years 16-18).
Unless and until the City Sources Capped Amount has been
reached, the Base Amount of each quarterly Performance-Based Grant for
the sixty-first (61 st) through the seventy-second (72nd) consecutive
quarters following the Completion Date shall equal the 100% of the City
Hotel Occupancy Tax Revenue received by the City during the previous
quarter. Notwithstanding anything to the contrary herein, once the City
Sources Capped Amount has been reached, the City shall no longer be
obligated to pay Omni any Performance-Based Grants.
5.2. City Credits for Omni's Failure to Meet All Construction
Commitments.
Notwithstanding anything to the contrary herein, the City shall receive an
aggregate credit towards its obligation to pay Omni Performance-Based Grants
based on the degree to which Omni failed to meet its construction spending
commitments with Fort Worth Companies and Fort Worth Certified M/WBE
Companies, as follows:
Page 20
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership, LP.
5.2.1. Failure to Meet Construction Spending Commitment with Fort
Worth Companies.
It by the Completion Date, Omni failed to spend or incur at least
Twenty Million Dollars ($20,000,000) in Hard Construction Costs for the
Project with Fort Worth Companies, as outlined in Section 4.5.1 (the
"Fort Worth Construction Commitment"), the City will receive a credit
toward its obligation to pay Omni Performance-Based Grants equal to the
number of dollars by which Omni failed to meet the Fort Worth
Construction Commitment less the amount of any credit received by the
City pursuant to Section 5.2.2. For example, if only $17,500,000 in Hard
Construction Costs for the Project were spent with Fort Worth Companies
(and assuming the City receives no credit pursuant to Section 5.2.2), then
the City would receive a credit toward its obligation to pay Omni
Performance-Based Grants equal to $2,500,000. In the event that any
amounts reported as incurred are subsequently determined to have not
actually been expended, the City, at the City's election, may collect any
Program Grant overpayment(s) either through a "true-up" of the City
credit set forth herein or through reimbursement from Omni.
5.2.2. Failure to Meet Construction Spending Commitment with Fort
Worth Certified M/WBE Companies.
If, by the Completion Date, Omni failed to spend or incur Fifteen
Million Dollars ($15,000,000) in Hard Construction Costs for the Project
with Fort Worth Certified M/WBE Companies, as outlined in Section
4.5.2 (the "M/WBE Construction Commitment"), the City will receive
a credit toward its obligation to pay Omni Performance-Based Grants
equal to the number of dollars by which Omni failed to meet the M/WBE
Construction Commitment. For example, if only $14,500,000 in Hard
Construction Costs for the Project were spent with Fort Worth Certified
M/WBE Companies, then the City would receive a credit toward its
obligation to pay Omni Performance-Based Grants equal to $500,000. In
the event that any amounts reported as incurred are subsequently
determined to have not actually been expended, the City, at the City's
election, may collect any Program Grant overpayment(s) either through a
"true-up" of the City credit set forth herein or through reimbursement
from Omni.
5.2.3. Application of City Credit.
The sum of any City credit calculated in accordance with Sections
5.2.1 and 5.2.2, if any, shall be applied toward the City's obligation to pay
Omni a Performance-Based Grant beginning with the first quarter
following the Completion Date. For example, suppose that the Base
Page 21
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership, LP.
Amount of the Performance-Based Grant for that first quarter is $200,000
and the aggregate amount of the City's credit is $150,000. In that case,
the amount of the Performance-Based Grant that the City would be
required to pay Omni in that quarter would be $50,000 ($200,000 Base
Amount minus $150,000 aggregate City credit), and the $150,000 credit
shall be retained by the City as Excluded Hotel Revenue.
5.2.4. AAuGcation Toward City Sources Capped Amount.
Any credit retained by the City as Excluded Hotel Revenue
pursuant to this Section 5.2 shall first be deemed attributable to the City
Hotel Occupancy Tax Revenue and the City Hotel Sales Tax Revenue
received during the previous quarter and will be added for purposes of
calculating the City Sources Capped Amount. In other words, using the
example in Section 5.2.3, if the Base Amount of the Performance-Based
Grant in the first quarter following the Completion Date is $200,000,
$100,000 of which is attributable to the City Hotel Occupancy Tax
Revenue and the City Hotel Sales Tax Revenue and $100,000 of which is
attributable to the State Hotel Occupancy Tax Revenue and the State Hotel
Sales Tax Revenue, the $150,000 aggregate City credit shall first be
deemed attributable to the City Hotel Occupancy Tax Revenue and the
City Hotel Sales Tax Revenue, meaning that $100,000 of the $150,000
credit would be applied toward the City Sources Capped Amount. If the
aggregate City credit is less than the City Hotel Occupancy Tax Revenue
and the City Hotel Sales Tax Revenue received during the previous
quarter, then all of the City's aggregate credit would be applied toward the
City Sources Capped Amount.
5.2.5. Carry Over.
If the City's aggregate credit under this Section 5.2 exceeds the
Base Amount in any calendar quarter, then (i) the Performance-Based
Grant payable in that quarter shall be $0 and any remaining balance of
such credit shall be applied toward the City's obligation to make
Performance-Based Grant(s) in the following quarter(s), and (ii) the City
shall nevertheless be deemed to have made a Performance-Based Grant in
that quarter and such quarter shall count toward calculating the remaining
number of quarters in which a Performance-Based Grant is owed.
5.3. Effect of Failure to Meet Annual Commitments.
If in the previous calendar year Omni failed to meet any of its
commitments to employ a minimum number of individuals, Fort Worth Residents
and Central City Residents in the Hotel and the Hotel Garage and to make
minimum Supply and Service Expenditures with Fort Worth Companies and Fort
Worth Certified M/WBE Companies, the following provisions shall apply:
Page 22
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,4 P.
5.3.1. Failure to Meet Overall Employment Commitment.
If during the Annual Reporting Month of a calendar year fewer
than two hundred fifty(250) Full-time Equivalent Jobs were provided and
filled in the Hotel and the Hotel Garage, as required by Section 4.6.1 of
this Agreement (the "Overall Employment Commitment"), then in
accordance with and subject to Section 5.3.7, Omni shall pay the City an
amount equal to $4,500 for each Full-time Equivalent Job by which the
Overall Employment Commitment was missed; provided, however, that
the amount owed by Omni to the City pursuant to this Section 5.3.1 shall
be reduced by (i) all of the amount owed by Omni to the City pursuant to
Section 5.3.2 below and (ii)one-half(1/2) of the amount owed by Omni to
the City pursuant to Section 5.3.3 below.
5.3.2. Failure to Meet Fort Worth Resident Employment
Commitment.
If during the Annual Reporting Month of a calendar year fewer
than one hundred twenty-five (125) Full-time Equivalent Jobs in the Hotel
and the Hotel Garage were held by Fort Worth Residents, as required by
Section 4.6.2 of this Agreement (the "Fort Worth Employment
Commitment"), then in accordance with and subject to Section 5.3.7,
Omni shall pay the City an amount equal to $4,500 for each Full-time
Equivalent Job by which the Fort Worth Employment Commitment was
missed; provided, however, that the amount owed by Omni to the City
pursuant to this Section 5.3.2 shall be reduced by one-half (1/2) of the
amount owed by Omni to the City pursuant to Section 5.3.3 below.
5.3.3. Failure to Meet Central City Resident Employment
Commitment.
If during the Annual Reporting Month of a calendar year fewer
than sixty-two (62) Full-time Equivalent Jobs in the Hotel and the Hotel
Garage were held by Central City Residents, as required by Section 4.6.3
of this Agreement (the"Central City Employment Commitment"), then
Omni shall pay the City an amount equal to $9,000 for each Full-time
Equivalent Job by which the Central City Employment Commitment was
missed.
5.3.4. Failure to Meet Fort Worth Company Supply and Service
Expenditure Commitment.
If in any calendar year less than $100,000 in Supply and Service
Expenditures were made with Fort Worth Companies, as required by
Section 4.7.1 of this Agreement (the "Fort Worth Supply and Service
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Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
Commitment"), then, subject to Omni's right to cure in accordance with
the sentence below, the amount of the Performance-Based Grant(s)
payable in the following quarter(s) shall be reduced by an amount equal to
the product of the number of dollars by which the Fort Worth Supply and
Service Commitment was missed times three (3). Notwithstanding the
foregoing, if Omni causes to be spent an amount equal to the number of
dollars by which the Fort Worth Supply and Service Commitment was
missed by June 1 of the following year, the amount of the Performance-
Based Grant(s) payable in the following quarter(s) will not be subject to
reduction pursuant to this Section 5.3.4, with the understanding that no
such expenditures shall count toward the Fort Worth Supply and Service
Commitment for that calendar year. Any amount owed by Omni to the
City pursuant to this Section 5.3.4 shall be reduced by the amount owed
by Omni to the City pursuant to Section 5.3.5 below.
5.3.5. Failure to Meet Fort Worth Certified M/WBE Company
Supply and Service Expenditure Commitment.
If in any calendar year less than $50,000 in Supply and Service
Expenditures were made with Fort Worth Certified M/WBE Companies,
as required by Section 4.7.2 of this Agreement (the "M/WBE Supply and
Service Commitment"), then, subject to Omni's right to cure in
accordance with the sentence below, the amount of the Performance-
Based Grant(s) payable in the following quarter(s) shall be reduced by an
amount equal to the product of the number of dollars by which the
M/WBE Supply and Service Commitment was missed times three (3).
Notwithstanding the foregoing, if Omni causes to be spent an amount
equal to the number of dollars by which the Ivt/WBE Supply and Service
Commitment was missed by June 1 of the following year, the amount of
the Performance-Based Grant(s) payable in the following quarter(s) will
not be subject to reduction pursuant to this Section 5.3.5, with the
understanding that no such expenditures shall count toward the M/WBE
Supply and Service Commitment for that calendar year.
5.3.6. No Offsets.
A deficiency in attainment of any of the commitments set forth in
Sections 4.6.1, 4.6.2, 4.6.3, 4.7.1 and/or 4.7.2 may not be offset by
exceeding other such commitments.
5.3.7. Use of Omni's Payments for Failure to Meet Employment
Commitments.
All payments by Omni to the City for any failure of Omni to meet
the Overall Employment Commitment, the Fort Worth Employment
Commitment and the Central City Employment Commitment, as provided
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Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
in Sections 5.3.1, 5.3.2 and 5.3.3, must be paid in full within ninety (90)
calendar days following the date that the Employment Report is due. If all
such payments have not been received by the City by such time, the City
may suspend payment of any Program Grants due hereunder, without
interest, until all such amounts are paid. The City agrees that all such
sums shall be deposited into a segregated City account or sub-account and
used only for the Job Training Program outlined in Section 4.18.
Following the tenth anniversary of the Completion Date, any remaining
funds for the Job Training Program will be retained by the City for any
legally permissible use.
5.4. Deadline for Payment of Performance-Based Grant; Nature of Funds.
Subject to Section 5.3.7, each quarterly Performance-Based Grant owed
pursuant to and in accordance with this Section 5 will be paid by the City to Omni
on or before the forty-fifth (45th) calendar day following the end of the previous
calendar quarter. It is understood and agreed that all Performance-Based Grants
paid pursuant to this Agreement shall come from currently available general
revenues of the City and not directly from any specific taxes or tax revenues,
including, but not limited to, City Hotel Occupancy Tax Revenue, City Hotel
Sales Tax Revenue, City Hotel Property Tax Revenue, Omni Residential Unit
Property Tax Revenue, State Hotel Occupancy Tax Revenue or State Hotel Sales
Tax Revenue.
6. LEASE-BASED GRANT.
Subject to all other terms and conditions of this Agreement, in each year in which
rent is paid under the Ground Lease, the City will pay Omni a Program Grant or Grants
equal to (i) the amount of the annual rental paid in the same calendar year to the City by
Omni pursuant to Section 3.2 of the Ground Lease less Ten Thousand Dollars ($10,000)
and (ii)the amount of any taxes and assessments levied by the City against the Leased
Premises(defined in the Ground Lease) which are not subject to abatement under the Tax
Abatement Agreement and which are paid by Omni in accordance with Section 5.2 of the
Ground Lease (each a "Lease-Based Grant"). Each respective Lease-Based Grant will
be paid by the City to Omni within five (5) business days following receipt of all rent
then due and payable to the City under the Ground Lease (in the case of a Lease-Based
Grant under clause (i) above), or within forty-five(45) calendar days following the end of
the calendar quarter in which any such taxes and assessments payable to the City under
Section 5.2 of the Ground Lease were received by the City(in the case of a Lease-Based
Grant under clause (ii) above). It is understood and agreed that all Lease-Based Grants
paid pursuant to this Agreement shall come from currently available general revenues of
the City and not directly from any specific taxes or tax revenues of the City. The City
shall have no right to withhold a Lease-Based Grant on account of a non-monetary
default by Omni under the Ground Lease.
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Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
7. GRANTS FOR COMPLETION OF THE PROJECT.
Subject to all other terms and conditions of this Agreement, the City will pay
Omni Program Grants in accordance with this Section 7 that are based on construction
progress of the Project and Substantial Completion of the Project (each a "Completion
Grant"). The Completion Grants shall account for the City's full and complete
reimbursement to Omni for a portion of the cost of the Hotel Garage and the cost of
making the Hotel Property `pad ready". It is understood and agreed that each
Completion Grant shall come from currently available general revenues of the City and
not directly from any specific taxes or tax revenues of the City.
7.1. Completion Grants Based on Construction Progress.
Within ten (10) business days following the City's receipt from Omni of
the monthly construction spending reports required by Section 4.11.2 of this
Agreement, the City will pay Omni a Completion Grant equal to fifty percent
(50%) of the Incremental Construction Expenditures reported for that month until
such time as the City has paid Omni aggregate Completion Grants equal to
$6,300,000.
7.2. Completion Grant Based on Substantial Completion of Prosect.
Within thirty (30) calendar days following the Completion Date, the City
will pay Omni a Completion Grant of$2,300,000.
8. HOTEL PROPERTY SALE-BASED GRANT.
Subject to all other terms and conditions of this Agreement, it pursuant to Article
IX of the Ground Lease, Omni exercises its option to purchase the Hotel Property from
the City or the City exercises its option to put the Hotel Property to Omni, the City will
pay Omni a Program Grant in an amount equal to the purchase price of the Hotel
Property received by the City less One Million Dollars ($1,000,000) (the "Hotel
Property Sale-Based Grant"). The Hotel Property Sale-Based Grant will be paid by the
City to Omni within five (5) business days following receipt by the City of all proceeds
from the sale of the Hotel Property. It is understood and agreed that each Completion
Grant shall come from currently available general revenues of the City and not directly
from any specific taxes or tax revenues of the City.
9. STATE SUBSTITUTE GRANTS.
9.1. Calculation of State Substitute Grants.
If at any time between the Completion Date and the tenth anniversary
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Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
thereof the City fails to receive State Hotel Occupancy Tax Revenue based on a
rate of six percent (6%) and/or State Hotel Sales Tax Revenue based on a rate of
six and one-quarter percent (6.25%), thereby causing a deficiency in the amount
of any quarterly Performance-Based Grant payable by the City, the City agrees
that, subject to Section 9.5, an amount equal to twenty-five percent (25%) of the
difference between(i) the full amount of the State Hotel Occupancy Tax Revenue
and the State Hotel Sales Tax Revenue that would have been received in the
previous quarter by operation of Section 351.102 of the Texas Tax Code and (ii)
the amount, if any, of the State Hotel Occupancy Tax Revenue and the State Hotel
Sales Tax Revenue that the City actually received in that quarter by operation of
Section 351.102 of the Texas Tax Code will be carried forward as a continuing
obligation of the City for payment following payment of the fortieth (40th)
quarterly Performance-Based Grant. The aggregate amount of such sums, plus
any interest earned and accrued thereon in accordance with Section 9.3, shall be
defined as the "Guaranteed State Amount". Upon payment of any
Performance-Based Grant,the City will notify Omni in writing of the then-current
balance, if any, of the Guaranteed State Amount. Beginning in the calendar
quarter following payment of the fortieth (40th) quarterly Performance-Based
Grant and in accordance with this Section 9, the City will pay Omni a Program
Grant or quarterly Program Grants, as necessary, until Omni has received the
Guaranteed State Amount (the "State Substitute Grants"). The amount of each
State Substitute Grant payable by the City will be based on an available universe
of funds for the year in which a State Substitute Grant is due, as provided in
Section 9.2.
9.2. Basis of Calculation.
The amount of funds available each quarter for any State Substitute Grant
shall equal the sum of the following revenues received by the City in the previous
calendar quarter: (i) 100% of the City Hotel Sales Tax Revenue,plus (ii) for any
State Substitute Grants payable in a calendar quarter following payment of the
sixtieth (60th) quarterly Performance-Based Grant, 100% of the City Hotel
Property Tax Revenue, plus (iii) for any State Substitute Grants payable in a
calendar quarter following payment of the seventy-second (72nd) quarterly
Performance-Based Grant, 100%of the City Hotel Occupancy Tax Revenue. The
City Sources Capped Amount does not apply to, and shall not serve to limit the
amount of, State Substitute Grants. Notwithstanding anything to the contrary, the
City may elect to pay any portion or all of the then-current balance Guaranteed
State Amount prior to the date of payment of the fortieth (40th) quarterly
Performance-Based Grant from any sources of funds legally available to the City.
9.3. Interest on Guaranteed State Amount.
Subject to Section 12.4.4.1, beginning on the date that the first
Performance-Based Grant is paid to Omni, the then-current balance of the
Guaranteed State Amount, if any, shall bear interest calculated at a fixed rate
Page 27
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
equal to fourteen percent (14%) per annum, compounded annually as of
December 31, which rate has been negotiated and agreed to by the parties after
giving consideration to Omni's investment analysis with regard to the Project.
9.4. Deadline for Payment of State Substitute Grants; Nature of Funds.
Each State Substitute Grant will be paid by the City to Omni on or before
the forty-fifth (45th) calendar day following the end of the previous calendar
quarter. It is understood and agreed that all State Substitute Grants paid pursuant
to this Agreement shall come from currently available general revenues of the
City and not directly from any specific taxes or tax revenues of the City,
including, but not limited to, City Hotel Occupancy Tax Revenue, City Hotel
Sales Tax Revenue, City Hotel Property Tax Revenue or Omni Residential Unit
Property Tax Revenue.
9.5. Credit Asainst Guaranteed State Amount.
Notwithstanding anything to the contrary contained elsewhere in this
Section 9, if any calendar quarter during or between the quarter in which the
Completion Date occurs and payment by the City of the fortieth (40th) quarterly
Performance-Based Grant there is a change in the Texas Tax Code or other
applicable statute so that (i) the rate upon which the State Hotel Occupancy Tax
Revenue is based is greater than six percent (6%) and/or the rate upon which the
State Hotel Sales Tax Revenue is based is greater than six and one-quarter percent
(6.25%), and/or (ii) the rate upon which the City Hotel Occupancy Tax Revenue
is based is greater than nine percent (9%) and/or the rate upon which the City
Hotel Sales Tax Revenue is based is greater than one percent (1%), then any such
increased amount shall be credited against the Guaranteed State Amount, if any,
on a dollar-for-dollar basis, and the Guaranteed State Amount shall be
recalculated in accordance therewith. This credit shall be applied on the date as
of which a Program Grant including such increased amounts is paid to Omni,
subject to any reduction or suspension imposed in accordance with this
Agreement.
10. CITY SUBSTITUTE GRANTS.
10.1. Calculation of City Substitute Grants.
If at any time between the Completion Date and the eighteenth (18th)
anniversary thereof; a change in applicable law after the Effective Date causes the
City Hotel Occupancy Tax Revenue to be based on a rate that is less than nine
percent (9%) of the taxable Hotel room revenue and/or if at any time between the
Completion Date and the tenth (10th) anniversary thereof; the City Hotel Sales
Tax Revenue to be based on a rate that is less than one percent (1%), thereby
causing a deficiency in the amount of any quarterly Performance-Based Grant that
Page 28
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
would otherwise have been payable by the City absent such a change in law, the
City agrees that, subject to Section 10.5, an amount equal to the difference
between (i) the full amount of the City Hotel Occupancy Tax Revenue and the
City Hotel Sales Tax Revenue that would have been received in the previous
quarter by operation of Section 351.102 of the Texas Tax Code and Sections
321.101(a) and 321.103 of the Texas Tax Code, respectively, but for a change in
applicable law after the Effective Date and (ii) the amount of the City Hotel
Occupancy Tax Revenue and the City Hotel Sales Tax Revenue that the City
actually received in that calendar year by operation of Section 351.102 of the
Texas Tax Code and Sections 321.101(a) and 321.103 of the Texas Tax Code,
respectively, will be carried forward as a continuing obligation of the City for
payment following payment of the fortieth (40th) quarterly Performance-Based
Grant (provided. however, that such obligation shall not apply once the City
Sources Capped Amount has been reached). The aggregate amount of such sums,
plus any interest earned and accrued thereon in accordance with Section 10.3,
shall be defined as the "Guaranteed City Amount". Upon payment of any
Performance-Based Grant, the City will notify Omni in writing of the then-current
balance, if any, of the Guaranteed City Amount. Beginning in the later of the
calendar quarter following payment of the fortieth (40th) quarterly Performance-
Based Grant or, if applicable, the calendar quarter following receipt by Omni of
the Guaranteed State Amount through the payment of State Substitute Grants, and
otherwise and in accordance with this Section 10, the City will pay Omni a
Program Grant or quarterly Program Grants, as necessary, until Omni has
received the Guaranteed City Amount (the "City Substitute Grants"). The
amount of each City Substitute Grant payable by the City will be based on an
available universe of funds for the year in which a City Substitute Grant is due, as
provided in Section 10.2.
10.2. Basis of Calculation.
The amount of funds available each quarter for any City Substitute Grant
shall equal the sum of the following revenues received by the City in the previous
calendar quarter: (i) 100% of the City Hotel Sales Tax Revenue plus (ii)for any
City Substitute Grants payable in a calendar quarter following payment of the
sixtieth (60th) quarterly Performance-Based Grant, 100% of the City Hotel
Property Tax Revenue, plus (iii) for any City Substitute Grants payable in a
calendar quarter following payment of the seventy-second (72nd) quarterly
Performance-Based Grant, 100%of the City Hotel Occupancy Tax Revenue. The
City may elect to pay any portion or all of the then-current balance Guaranteed
City Amount prior to the date of payment of the fortieth (40th) quarterly
Performance-Based Grant from any sources of funds legally available to the City.
Notwithstanding anything to the contrary, once the City Sources Capped Amount
has been reached, the City shall no longer be obligated to pay any City Substitute
Grants (although the City's obligation to pay interest on the unpaid Guaranteed
City Amount accrued up to the date that the City Sources Capped Amount is
reached, as provided by Section 10.3, will continue in effect, with the
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Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
understanding that the City shall only pay such interest from the same universe of
funds in which the City Substitute Grants were payable).
10.3. Interest on Guaranteed City Amount.
Subject to Section 12.4.4.1, beginning on the date that the first
Performance-Based Grant is paid to Omni, the then-current balance of the
Guaranteed City Amount, if any, shall bear interest calculated at a fixed rate equal
to fourteen percent (14%) per annum, compounded annually as of December 31,
which rate has been negotiated and agreed to by the parties after giving
consideration to Omni's investment analysis with regard to the Project.
10.4. Deadline for Payment of City Substitute Grants: Nature of Funds.
Each City Substitute Grant will be paid by the City to Omni on or before
the forty-fifth (45th) calendar day following the end of the previous calendar
quarter. It is understood and agreed that all City Substitute Grants paid pursuant
to this Agreement shall come from currently available general revenues of the
City and not directly from any specific taxes or tax revenues of the City,
including, but not limited to, City Hotel Occupancy Tax Revenue, City Hotel
Sales Tax Revenue or any personal property tax revenues of the City.
10.5. Credit Azainst Guaranteed City Amount.
Notwithstanding anything to the contrary contained elsewhere in this
Section 10, if any calendar quarter during or between the quarter in which the
Completion Date occurs and payment by the City of the fortieth (40th) quarterly
Performance-Based Grant there is a change in the Texas Tax Code or other
applicable statute so that (i) the rate upon which the City Hotel Occupancy Tax
Revenue is based is greater than nine percent (9%) and/or the rate upon which the
City Hotel Sales Tax Revenue is based is greater than one percent (M), and/or
(ii) the rate upon which the State Hotel Occupancy Tax Revenue is based is
greater than six percent (6%) and/or the rate upon which the State Hotel Sales Tax
Revenue is based is greater than six and one-quarter percent (6.25%), then any
such increased amount shall be credited against the Guaranteed City Amount, if
any, on a dollar-for-dollar basis, and the Guaranteed City Amount shall be
recalculated in accordance therewith; provided, however, that if at that time there
is a positive balance on both the Guaranteed State Amount and the Guaranteed
City Amount, the credit shall first be applied to the Guaranteed State Amount and
the remainder, if any, shall then be applied to the Guaranteed City Amount. This
credit shall be applied on the date as of which a Program Grant including such
increased amounts is paid to Omni, subject to any reduction or suspension
imposed in accordance with this Agreement.
Page 30
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
11. RETENTION BY THE CITY OF EXCLUDED HOTEL REVENUE.
Omni understands and agrees that any Excluded Hotel Revenue received by the
City and retained in accordance with this Agreement may be used by the City for any
lawful purpose that the City deems necessary in the carrying out of its business as a home
rule municipality and will not serve as the basis for calculating the amount of any future
Program Grant to Omni.
12. DEFAULT, TERMINATION, SUSPENSION OF OBLIGATIONS AND
FAILURE BY OMNI TO MEET VARIOUS COMMITMENTS.
12.1. Failure to Complete Hotel and Hotel Garap-e.
Subject to Section 4.4, Omni shall be in default under this Agreement if by
the Completion Deadline (i) at least $100,000,000 in Hard Construction Costs for
the Project have not been expended or incurred or (ii) the Project is not
Substantially Complete. In such an event,the City shall notify Omni in writing of
the existence of such default. If Omni has not cured such default within ninety
(90) calendar days following receipt of such notice, the City shall have the right to
terminate this Agreement by notifying Omni in writing.
12.2. Termination of Tax Abatement Ap-reement and Room Block
Ap-reement.
Upon any lawful termination of the Tax Abatement Agreement or the
Room Block Agreement on account of an uncured breach or default by Omni in
accordance with the respective terms and conditions of those agreements, the City
shall have the right to terminate this Agreement by providing Omni at least ninety
(90) calendar days' advance written notice.
12.3. Failure to Pay City Taxes.
12.3.1. After payment of the twentieth (20th) quarterly
Performance-Based Grant, an event of default shall occur under this
Agreement if any real property taxes owed to the City pursuant to Section
302.001(c) of the Texas Tax Code and attributable to any Residential
Units owned by Omni or an Omni Affiliate remain unpaid or the proper
legal procedures for protest and/or contest of any such taxes are not
followed.
12.3.2. In addition to Section 12.3.1, after payment of the fortieth
(40th) quarterly Performance-Based Grant, an event of default shall occur
under this Agreement if any municipal sales taxes attributable to the Hotel
or the Hotel Garage and owed by Omni to the City pursuant to Sections
321.101(a) and 321.103 of the Texas Tax Code become delinquent and
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Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
Omni does not either pay such taxes or properly follow the legal
procedures for protest and/or contest of any such taxes.
12.3.3. In addition to Sections 12.3.1 and 12.3.2, after payment of
the sixtieth (60th) quarterly Performance-Based Grant, an event of default
shall occur under this Agreement if any (i) real property taxes attributable
to the Hotel or the Hotel Garage or (ii) any personal property taxes
attributable to Tangible Personal Property owned or leased by Omni and
located in the Hotel or the Hotel Garage become delinquent and Omni
does not either pay such taxes or properly follow the legal procedures for
protest and/or contest of any such taxes.
12.3.4. In addition to Sections 12.3.1, 12.3.2 and 12.3.3, after
payment of the seventy-second (72nd) quarterly Performance-Based
Grant, an event of default shall occur under this Agreement if any hotel
occupancy taxes attributable to the Hotel and owed to the City pursuant to
Chapter 351 of the Texas Tax Code and Chapter 32 of the City Code
become delinquent and Omni does not either pay such taxes or properly
follow the legal procedures for protest and/or contest of any such taxes.
12.3.5. Upon the occurrence of any default outlined in this Section
12.3, the City shall notify Omni in writing and Omni shall have (i) thirty
(30) calendar days to cure such default or (ii) if Omni has diligently
pursued cure of the default but such default is not reasonably curable
within such time,then such amount of time that the City reasonably agrees
is necessary to cure such default. If the default has not been fully cured by
such time, the City, as its sole and exclusive remedy, shall have the right
to terminate this Agreement immediately by providing written notice to
Omni and shall have all other rights and remedies that may be available to
it under the law with respect to the collection of any such delinquent taxes.
12.4. Failure to Comply with Minimum Hotel Oaeratine Standards.
12.4.1. Initial Notification by City.
If at any time during the Term of this Agreement the City believes
that the Hotel has ceased to be operated in accordance with all Minimum
Hotel Operating Standards, as required by Section 4.8, the City shall
provide written notice to Omni that specifically sets forth the basis of the
City's opinion. If Omni agrees with the City's opinion, Omni shall have
one (1) calendar year from the date of the City's notice to bring the Hotel
into operating compliance with all Minimum Hotel Operating Standards,
during which time the City will continue to pay all Program Grants in
accordance with this Agreement. If Omni disagrees with the City's
opinion or fails within ten (10) business days of receipt to respond to the
City's notice, the City may submit the matter to arbitration for resolution
in accordance with Section 12.4.3.
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Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
12.4.2. Resumption of Minimum Hotel Operating Standards.
Once Omni determines that the Hotel has resumed operating in
accordance with all Minimum Hotel Operating Standards, Omni will
notify the City in writing. If the City notifies Omni in writing of its
agreement with Omni's determination within ten (10) business days, the
matter will be resolved and the City will continue to pay all Program
Grants in accordance with this Agreement. If the City disagrees with
Omni's determination or fails to respond to Omni's determination within
ten (10) business days following receipt of Omni's notice, Omni may
submit the matter to arbitration for resolution in accordance with Section
12.4.3. If the arbitrator finds that the Hotel has resumed operating in
accordance with all Minimum Hotel Operating Standards, the matter will
be resolved and the City will continue to pay all Program Grants in
accordance with this Agreement. If(i) the arbitrator finds that the Hotel
has not resumed operating in accordance with all Minimum Hotel
Operating Standards or (ii) Omni fails within one (1) calendar year
following the City's initial notice to notify the City in writing that Omni
believes that the Hotel has resumed operating in accordance with all
Minimum Hotel Operating Standards, the City's obligation to pay any
Program Grants to Omni shall cease in accordance with Section 12.4.4.
12.4.3. Arbitration.
Any dispute between the City and Omni as to whether the Hotel is
operating in accordance with all Minimum Hotel Operating Standards
shall be submitted to binding arbitration in accordance with Section 12.9
hereof.
12.4.4. Cessation or Pro-rated Payment of Program Grants.
12.4.4.1. Failure to Comoly with Minimum Hotel
Operating Standards for Full Quarter.
If the Hotel is not operated in accordance with all
Minimum Hotel Operating Standards, as determined by the
arbitrator in accordance with Section 12.4.3, for any full calendar
quarter,then Omni shall waive, and the City will not be required to
pay, any Program Grant that would otherwise be payable in the
following quarter. In such an event, (i) for any quarter in which a
Performance-Based Grant is waived, the City shall nevertheless be
deemed to have made a Performance-Based Grant in that quarter
and such quarter shall count toward calculating the remaining
number of quarters in which a Performance-Based Grant is owed;
(ii) no sums shall be added to the balance of the Guaranteed State
Amount and/or the Guaranteed City Amount that are attributable to
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Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership, LP.
the calendar quarter in which the Hotel was not operated in
accordance with all Minimum Hotel Operating Standards; (iii) that
portion of any Program Grant attributable to the City Hotel
Occupancy Tax Revenue and the City Hotel Sales Tax Revenue
and that would otherwise have been payable to Omni will be added
for purposes of calculating the City Sources Capped Amount; (iv)
for any quarter in which a State Substitute Grant and/or City
Substitute Grant is waived, the amount of the State Substitute
Grant that would otherwise have been owed shall be deducted from
the Guaranteed State Amount for purposes of calculating the
amount of future State Substitute Grants and the amount of the
City Substitute Grant that would otherwise have been owed shall
be deducted from the Guaranteed City Amount for purposes of
calculating the amount of future City Substitute Grants, if any; and
(v) no interest on the balance of any Guaranteed State Amount
and/or Guaranteed City Amount shall be earned or accrued for the
quarter in which the Hotel was not operated in accordance with all
Minimum Hotel Operating Standards, in which case any interest
earned for the calendar year in which such quarter occurred shall
be prorated in accordance with the number of calendar days in that
quarter.
12.4.4.2. Failure to Comnly with Minimum Hotel
Oyeratine Standards for Portion of a Ouarter.
If the Hotel is not operated in accordance with all
Minimum Hotel Operating Standards, as determined by the
arbitrator in accordance with Section 12.4.3, for a portion of any
calendar quarter, then any Program Grant that would be payable in
the following calendar quarter and any sums that would otherwise
be added to the Guaranteed State Amount and/or the Guaranteed
City Amount, as well as any interest that would otherwise have
been earned thereon, shall be reduced by multiplying such amount
by a fraction, to be expressed as a percentage, where (i) the
numerator is the number of days in that quarter in which the Hotel
was not operated in accordance with all Minimum Hotel Operating
Standards, and (ii) the denominator is the number of days in that
quarter. In addition, an amount equal to that portion of any
Program Grant attributable to the City Hotel Occupancy Tax
Revenue and the City Hotel Sales Tax Revenue and that would
otherwise have been payable in full to Omni multiplied by a
fraction where (i) the numerator is the number of days in that
quarter in which the Hotel was operated in accordance with all
Minimum Hotel Operating Standards and (ii) the denominator is
the number of days in that quarter will be added for purposes of
calculating the City Sources Capped Amount.
Page 34
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
12.5. Failure to Maintain Competitive Name Brand.
12.5.1. For Full Quarter.
If the Hotel is not operated and marketed under a First Tier
Flag brand name, as required by Section 4.9, for any full calendar quarter,
then Omni shall waive, and the City will not be required to pay, any
Program Grant that would otherwise be payable in the following quarter.
In such an event, (i) for any quarter in which a Performance-Based Grant
is waived, the City shall nevertheless be deemed to have made a
Performance-Based Grant in that quarter and such quarter shall count
toward calculating the remaining number of quarters in which a
Performance-Based Grant is owed; (ii) no sums shall be added to the
balance of the Guaranteed State Amount and/or the Guaranteed City
Amount that are attributable to the calendar quarter in which the Hotel was
not operated and marketed under a First Tier Flag brand name; (iii) that
portion of any Program Grant attributable to the City Hotel Occupancy
Tax Revenue and the City Hotel Sales Tax Revenue and that would
otherwise have been payable to Omni will be added for purposes of
calculating the City Sources Capped Amount; (iv) for any quarter in which
a State Substitute Grant and/or City Substitute Grant is waived, the
amount of the State Substitute Grant that would otherwise have been owed
shall be deducted from the Guaranteed State Amount for purposes of
calculating the amount of future State Substitute Grants and the amount of
the City Substitute Grant that would otherwise have been owed shall be
deducted from the Guaranteed City Amount for purposes of calculating
the amount of future City Substitute Grants, if any; and (v) no interest on
the balance of any Guaranteed State Amount and/or Guaranteed City
Amount shall be earned or accrued for the quarter in which the Hotel was
not operated and marketed under a First Tier Flag brand name, in which
case any interest earned for the calendar year in which such quarter
occurred shall be prorated in accordance with the number of calendar days
in that quarter.
12.5.2. For a Portion of a Ouarter.
If the Hotel is not operated and marketed under a First Tier
Flag brand name, as required by Section 4.9, for a portion of any calendar
quarter, then any Program Grant that would be payable in the following
quarter and any sums that would otherwise be added to the Guaranteed
State Amount and/or the Guaranteed City Amount, as well as any interest
that would otherwise have been earned thereon, shall be reduced by
multiplying such amount by a fraction, to be expressed as a percentage,
where (i) the numerator is the number of days in that quarter in which the
Hotel was not operated and marketed under a First Tier Flag brand name,
Page 35
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
and (ii)the denominator is the number of days in that quarter. In addition,
an amount equal to that portion of any Program Grant attributable to the
City Hotel Occupancy Tax Revenue and the City Hotel Sales Tax
Revenue and that would otherwise have been payable in full to Omni
multiplied by a fraction where (i) the numerator is the number of days in
that quarter in which the Hotel was operated and marketed under a First
Tier Flag brand name and (ii) the denominator is the number of days in
that quarter will be added for purposes of calculating the City Sources
Capped Amount.
12.6. Failure to Meet Construction Cost Spendinm Employment and/or
Supply and Service Syendint Commitments.
The failure to meet any Hard Construction Cost spending commitments, as
specifically set forth in Sections 4.5.1 and 4.5.2, or to meet any employment
and/or Supply and Service Expenditure commitments in any given year, as
specifically set forth in Sections 4.6.1, 4.6.2, 4.6.3, 4.7.1 and 4.7.2, shall not
constitute a default hereunder or provide the City with the right to terminate this
Agreement, but, rather, shall only serve to reduce the amount of the Performance-
Based Program Grants, State Substitute Grants and City Substitute Grants that the
City is required to pay pursuant to and in accordance with this Agreement.
12.7. Failure to Submit Reports or Make Data Available to the City.
If Omni fails to submit all or any reports or make data available to the
City, as the case may be and as required by Sections 4.11.3, 4.11.4, 4.11.5 and/or
4.11.6, the City will notify Omni in writing and the City's obligation to pay any
future Performance-Based Grant shall be suspended until Omni has provided such
report(s)or made such data available for review by the City.
12.8. Other Breaches.
In the event that Omni breaches this Agreement and such breach is not
covered by Sections 12.1, 12.3, 12.4, 12.5, 12.6 or 12.7, the City shall notify
Omni in writing, which notice shall specify the nature of the breach, and Omni
shall have thirty (30) calendar days to cure the breach, or if such breach is not
reasonably curable within thirty (30) calendar days, such additional time as may
be reasonably necessary to cure the breach provided that Omni is diligently
pursuing cure. If the breach has not been fully cured within such time, the City
shall have all rights and remedies available under the law or in equity other than
termination of this Agreement, including, but not limited to, the right to demand
specific performance to cure the breach and to collect damages plus reasonably
attorneys' fees incurred in the enforcement of this Agreement.
Page 36
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
12.9. Arbitration.
If the parties are in disagreement regarding any provision of this
Agreement, the parties shall submit disputes to mandatory arbitration in
accordance with the provisions of this Section 12.9. Each of the City and Omni
waives the right to commence an action in connection with this Agreement in any
court and expressly agrees to be bound by the decision of the arbitrator
determined in this Section 12.9; provided, however, the waiver in this
Section 12.9 will not prevent the City or Omni from commencing an action in any
court for the sole purposes of enforcing the obligation of the other party to submit
to binding arbitration or the enforcement of an award granted by arbitration
herein Any dispute between the City and Omni as to the interpretation of any
provision of this Agreement or the rights and obligations of any party hereunder
shall be resolved through binding arbitration as hereinafter provided in Fort
Worth, Texas. Notwithstanding the foregoing, prior to submitting any dispute
hereunder to arbitration, the City and Omni shall first attempt in good faith, for
thirty (30) days after the first notice given under this Agreement regarding such
dispute, to resolve any such dispute promptly by negotiation between executives
of each party who have authority to settle the dispute, which shall include an in
person meeting between such executives in Fort Worth,Texas.
12.9.1 Selection of Arbitrator.
If arbitration is required to resolve a dispute between the
City and Omni, the City and Omni shall agree upon one (1) arbitrator to
resolve the dispute. The arbitrator must be a neutral party having at least
five (5) years experience in commercial real estate in general and hotel
buildings in particular in the Fort Worth, Texas area and must be mutually
acceptable to both parties.
12.9.2 Rules of Arbitrator.
The arbitrator selected pursuant to Section 12.9.1 above
will establish the rules for proceeding with the arbitration of the dispute,
which will be binding upon all parties to the arbitration proceeding. The
arbitrator may use the rules of the American Arbitration Association for
commercial arbitration but is encouraged to adopt the rules the arbitrator
deems appropriate to accomplish the arbitration in the quickest and least
expensive manner possible. Accordingly, the arbitrator may (1) dispense
with any formal rules of evidence and allow hearsay testimony so as to
limit the number of witnesses required, (2) minimize discovery procedures
as the arbitrator deems appropriate, and (3) limit the time for presentation
of any party's case as well as the amount of information or number of
witnesses to be presented in connection with any hearing. In any event,
the arbitrator(A) shall permit each side no more than two (2) depositions
Page 37
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership, LP.
(including any deposition of experts), which depositions may not exceed
four (4) hours each, one set of 10 interrogatories (inclusive of sub-parts)
and one set of five (5) document requests (inclusive of sub-parts), (B)
shall not permit any requests for admissions, (C) shall limit the hearing, if
any, to two (2) days, and (D) shall render his or her decision within sixty
(60)days of the filing of the arbitration.
12.9.3 Arbitration Award.
The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the costs incurred by any
party for its attorneys, advisors and consultants.
12.9.4 Binding Nature.
Any award made by the arbitrator shall be binding on the
City, Omni and all parties to the arbitration and shall be enforceable to the
fullest extent of the law.
12.9.5 Applicable Law.
In reaching any determination or award, the arbitrator will
apply the laws of the state in which the Hotel is located. Except as
permitted under Section 12.9.3 above, the arbitrator's award will be
limited to actual damages and will not include consequential, special,
punitive or exemplary damages. Nothing contained in this Agreement will
be deemed to give the arbitrator any authority, power or right to alter,
change, amend, modify, add to or subtract from any of the provisions of
this Agreement. All privileges under state and federal law, including,
without limitation, attomey-client, work product and party communication
privileges, shall be preserved and protected. All experts engaged by a
party must be disclosed to the other party within fourteen (14) days after
the date of notice and demand for arbitration is given.
13. ENTERPRISE PROJECT DESIGNATION.
The City has nominated the Project as an enterprise project subject and pursuant
to and in accordance with the Texas Enterprise Zone Act, Chapter 2303, Subchapter F of
the Texas Government Code. Omni understands and agrees that the City does not
warrant and cannot guarantee such designation by the State of Texas.
Page 38
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
14. WAIVER OF CITY FEES.
Omni will be required to apply for and receive all permits and other licenses and
certificates required by the City with respect to the Project. However, unless otherwise
provided herein or prohibited by applicable law, ordinance, rule or regulation, the City
hereby agrees to waive the following fees related to the Project that would otherwise be
charged by the City: (i) all building permit, plan review, inspection, and re-inspection
fees related to any and all aspects of the Project that would otherwise by charged by the
City, including fees for inspections by City personnel performed during or outside of
normal business hours, whether for review of original plans, or changes, additions, or
revisions thereto, and specifically including, but not limited to, fees associated with all
electrical, mechanical, HVAC, and plumbing systems, building signage, and swimming
pool or other systems; and (ii) temporary and permanent encroachment fees.
Notwithstanding anything to the contrary herein, in no event will the City waive or
reimburse Omni for (i) any water or sewer impact fees or(ii) fees of any nature assessed
by third parties, such as third party inspection fees. Notwithstanding anything to the
contrary set forth herein, the City and Omni agree that the specific fees to be waived
under this Agreement shall subsequently be established conclusively in writing by both
the City and Omni after plans and specifications for the Project have been agreed to and
before Omni applies for a permit from the City to initiate construction.
15. COUNTY TAX ABATEMENT.
The City will use its best efforts to facilitate communications with Tarrant County
with regard to an ad valorem tax abatement from Tarrant County. Omni understands and
agrees that the City does not warrant and cannot guarantee that any such tax abatement
will be effectuated.
16. INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Omni shall operate as an independent
contractor in each and every respect hereunder and not as an agent, representative or
employee of the City. Omni shall have the exclusive right to control all details and day-
to-day operations relative to the Project and shall be solely responsible for the acts and
omissions of its officers, agents, servants, employees, contractors, subcontractors,
licensees and invitees. Omni acknowledges that the doctrine of respondeat superior will
not apply as between the City and Omni, its officers, agents, servants, employees,
contractors, subcontractors, licensees, and invitees. Omni further agrees that nothing in
this Agreement will be construed as the creation of a partnership or joint enterprise
between the City and Omni.
Page 39
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
17. INDEMNIFICATION.
OMNI AGREES TO DEFEND, INDEMNIFY AND HOLD THE CITY, ITS
OFFICERS, AGENTS SERVANTS AND EMPLOYEES, HARMLESS AGAINST
ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF
ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY
DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO OMNIS
BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL
INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE
OCCASIONED BY (i) OMNIS BREACH OF ANY OF THE TERMS OR
PROVISIONS OF THIS AGREEMENT OR (ii)ANY ACT OR OMISSION OF OMNI
OR ANY OF ITS AFFILIATES, THEIR OFFICERS, AGENTS, ASSOCIATES,
EMPLOYEES, CONTRACTORS (OTHER THAN THE CIM OR
SUBCONTRACTORS, RELATED TO THE PROJECT, ANY OPERATIONS OR
ACTIVITIES ON THE HOTEL PROPERTY OR IN ANY IMPROVEMENTS
THEREON, OR TO THE PERFORMANCE OF THIS AGREEMENT, EXCEPT
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT
APPLY TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF
THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE
CONTRACTORS, AND IN THE EVENT OF JOINT AND CONCURRENT
NEGLIGENCE OF BOTH OMNI AND CITY, RESPONSIBILITY, IF ANY, SHALL
BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS.
18. NOTICES.
All written notices called for or required by this Agreement shall be addressed to
the following, or such other party or address as either party designates in writing, by
certified mail, postage prepaid, or by hand delivery:
City: Omni:
City of Fort Worth c/o Omni Hotels Corporation
Attn: City Manager Attn: General Counsel
1000 Throckmorton 420 Decker Drive
Fort Worth, TX 76102 Irving, TX 75062
Tel. No.: (817) 392-6111 Tel. No.: (972) 871-5619
Fax No.: (817) 392-6134 Fax No.: (972) 871-5666
Page 40
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
with copies to: with a copy to:
the City Attorney and Winstead, Sechrest &Minick, P.C.
Economic/Community Development Attn: Andrew Dow
Director at the same address 5400 Renaissance Tower
Tel.No. (C.A.): (817) 392-7600 1201 Elm Street
Fax No. (C.A.): (817) 392-8359 Dallas, TX 75270-2199
Tel. No. (ECD): (817) 392-6103 Tel. No.: (214) 745-5400
Fax No. (ECD): (817) 392-2431 Fax No.: (214) 745-5883
19. ASSIGNMENT AND SUCCESSORS.
Prior to the Completion Date and for three (3) years thereafter, Omni may not
assign, transfer or otherwise convey any of its rights or obligations under this Agreement.
Thereafter, provided that Omni is not in default of any of its obligations under this
Agreement, the Tax Abatement Agreement, the Room Block Agreement or the Ground
Lease, Omni may assign, transfer or otherwise convey any of its rights and obligations
under this Agreement to another party upon receipt in advance of the written consent of
the City, which consent shall not be unreasonably withheld or delayed, conditioned on(i)
the prior approval of the assignee or successor and a finding by the City Council that the
proposed assignee or successor will operate and market the Hotel under a First Tier Flag
brand name and is financially capable of operating the Hotel in accordance with the
Minimum Hotel Operating Standards and (ii)prior execution by the proposed assignee or
successor of a written agreement with the City under which the proposed assignee or
successor agrees to assume all covenants and obligations of Omni under this Agreement.
Any lawful assignee or successor in interest of Omni under this Agreement shall be
deemed "Omni" for all purposes under this Agreement.
20. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND
REGULATIONS: ALL GRANTS SUBJECT TO APPROPRIATION.
This Agreement will be subject to all applicable federal, state and local laws,
ordinances, rules and regulations, including, but not limited to, all provisions of the
City's Charter and ordinances, as amended. Notwithstanding anything to the contrary
herein, all obligations of the City to pay Program Grants to Omni hall be subject to
annual appropriation by the City Council. The City's staff shall use its best efforts to
include in each annual budget, for consideration and approval by the City Council (such
approval, however, being solely within the discretion of the City Council), such amounts
as would be sufficient to satisfy all of the City's obligations to Omni under this
Agreement during the forthcoming City fiscal year.
Page 41
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
21. GOVERNMENTAL POWERS.
It is understood that by execution of this Agreement, the City does not waive or
surrender any of it governmental powers or immunities.
22. NO WAIVER.
The failure of either party to insist upon the performance of any term or provision
of this Agreement or to exercise any right granted hereunder shall not constitute a waiver
of that party's right to insist upon appropriate performance or to assert any such right on
any future occasion.
23. VENUE AND JURISDICTION.
If any action, whether real or asserted, at law or in equity, arises on the basis of
any provision of this Agreement, venue for such action shall lie in state courts located in
Tarrant County, Texas or the United States District Court for the Northern District of
Texas— Fort Worth Division. This Agreement shall be construed in accordance with the
laws of the State of Texas.
24. NO THIRD PARTY RIGHTS.
The provisions and conditions of this Agreement are solely for the benefit of the
City and Omni, and any lawful assign or successor of Omni., and are not intended to
create any rights, contractual or otherwise, in any other person or entity.
25. FORCE MAJEURE.
In addition to those instances where Force Majeure is addressed elsewhere in this
Agreement, it is expressly understood and agreed by Omni and the City that if the
performance by either party of any obligation hereunder is delayed by reason of Force
Majeure, the time period applicable to performance of such obligation shall be extended
for a period of time equal to the period of the specific event of Force Majeure.
26. INTERPRETATION.
In the event of any dispute over the meaning or application of any provision of
this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither
more strongly for or against any party, regardless of the actual drafter of this Agreement.
In the event of any direct conflict between the terms and conditions of this Agreement
Page 42
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
and those of the Tax Abatement Agreement, the Room Block Agreement and/or the
Ground Lease, this Agreement shall control.
27. CAPTIONS.
Captions and headings used in this Agreement are for reference purposes only and
shall not be deemed a part of this Agreement.
28. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way
be affected or impaired.
29. ESTOPPEL CERTIFICATES.
Omni shall have the right to request the City, from time to time, to issue an
estoppel certificate so long as the certificate is requested in connection with a bona fide
business purpose. Any estoppel certificate shall be delivered by the City within twenty
(20) days (or such additional time as reasonably may be required under the
circumstances), addressed to Omni or, at Omni's request, to another party and shall
include, but not necessarily be limited to, statements by the City as to whether this
Agreement is in full force and effect, whether the City is aware of any default hereunder
by Omni or the City (and if so, the nature of that default and the curative action taken
and/or necessary to effect cure), and the anticipated remaining term of this Agreement.
30. ENTIRETY OF AGREEMENT; TERMINATION OF FIRST 380
AGREEMENT.
This Agreement, including any exhibits attached hereto and any documents
incorporated herein by reference, contains the entire understanding and agreement
between the City and Omni, and any lawful assign and successor of Omni, as to the
matters contained herein. Upon execution of this Agreement by both the City and Omni,
the First 380 Agreement will automatically terminate and be replaced and superseded by
this Agreement. Any prior or contemporaneous oral or written agreement is hereby
declared null and void to the extent in conflict with any provision of this Agreement.
Notwithstanding anything to the contrary herein, this Agreement shall not be amended
unless executed in writing by both parties and approved by the City Council of the City in
an open meeting held in accordance with Chapter 551 of the Texas Government Code.
Page 43
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
31. COUNTERPARTS.
This Agreement may be executed in multiple counterparts, each of which shall be
considered an original, but all of which shall constitute one instrument.
EXECUTED to be effective April 27, 2005:
CITY OF FORT WORTH: OMNI FORT WORTH
PARTNERSHIP, L.P.:
By: By:Omni Fort Worth GP Corporation,
JoeP is a Delaware corporation and its sole
Assistant City Manager General Partner
By:
- / 1.edo—1
N me: sa f -'d4,Mj'gn
Title:
APPROVED AS TO FORM AND LEGALITY:
By g;" Attested By.
Peter Vaky
Assistant City Attorney
M&C: C -21:273 /-2*-D L i tarty xrndr
City Secretary
Page 44
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
EXHIBITS
"A"—Map of Central City
"B"—Completion Guaranty
"C"—Diagram of Hotel Property
"D"—Minimum Hotel Operating Standards
(D-1 for Three Star Lodging Establishment, D-2 for Four Diamond)
"E"—Project Construction Schedule
Page 45
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
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EXHIBIT "B"
GUARANTY
In consideration of entering into that certain Economic Development Program
Agreement (as same may be amended from time to time, the"380 Agreement") effective
as of April 27, 2005, between the City of Fort Worth, Texas, a Texas home-rule city
("Cit '), and Omni Fort Worth Partnership, L.P., a Delaware limited partnership
("Omni"), relating to the development of a hotel, a parking garage and residential
condominium units (collectively, the "Project") located in Fort Worth, Tarrant County,
Texas and more specifically described in the 380 Agreement, TRT Holdings, Inc. (the
"Guarantor") hereby unconditionally guarantees (i) that the Project will be Substantially
Completed (as that term is defined in the 380 Agreement) at no cost to the City (the
"Completion Obligation'),tion'), and (ii) the payment of any amounts determined to be an
overpayment of any Program Grant (as that term is defined in the 380 Agreement) that
are discovered by a reporting "true-up" or during an audit undertaken pursuant to the 380
Agreement that the City is not able to recover from Omni (the "380 Payment
Obli ag tion') (the Completion Obligation, and the 380 Payment Obligation are
collectively referred to herein as the "Guaranteed Obligations"). Guarantor further
promises to pay all of City's costs and expenses (including reasonable attorneys' fees)
incurred in endeavoring to enforce the Guaranteed Obligations or incurred in enforcing
this Guaranty, as well as all damages that the City may incur by operation of Section
2253.027 of the Texas Government Code.
1. If the City enforces the Completion Obligation against Guarantor and
Guarantor is perforating such obligation hereunder, then, notwithstanding any provision
of the 380 Agreement or the Tax Abatement Agreement to the contrary, the City may not
terminate the 380 Agreement or the Tax Abatement Agreement and may not reduce the
amount of any Program Grant under the 380 Agreement or the value of any abatement
under the Tax Abatement Agreement on account of Omni's failure to by the Completion
Deadline(as defined in the 380 Agreement)to expend minimum Hard Construction Costs
(as defined in the 380 Agreement) for the Project or to Substantially Complete the
Project, nor may the City reduce the amount of any Program Grant or abatement. As
used herein, the term "Tax Abatement Agreement" means that certain Tax Abatement
Agreement entered into between Omni and the City and dated of even date with the 380
Agreement.
2. City may at any time and from time to time, without notice to or consent
by Guarantor, take any or all of the following actions without affecting or impairing the
liability and obligations of Guarantor on this Guaranty.
(a) grant an extension or extensions of time for performance of any
Guaranteed Obligation;
Exhibit B—Page 1
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership, LP.
(b) grant an indulgence or indulgences in the performance of any
Guaranteed Obligation;
(c) accept other guarantees or guarantors; and/or
(d) release any person primarily or secondarily liable hereunder or
under the 380 Agreement or under any other guaranty.
The liability of Guarantor under this Guaranty will not be affected or impaired by
any failure or delay by City in enforcing the Guaranteed Obligation or this Guaranty or
any security therefor or in exercising any right or power in respect thereto, or by any
compromise, waiver, settlement, change, subordination, modification or disposition of the
Guaranteed Obligation or of any security therefor. In order to hold Guarantor liable
hereunder, there will be no obligation on the part of City, at any time, to resort to Omni
or to any other guaranty or to any security or other rights and remedies for performance,
and City will have the right to enforce this Guaranty irrespective of whether or not other
proceedings or actions are pending or being taken seeking resort to or realization upon or
from any of the foregoing; provided, however, that the City shall first seek payment from
Omni of any 380 Payment Obligation before enforcing this Guaranty against Guarantor
for collection of such amount.
3. Guarantor waives all diligence in collection or in protection of any
security, presentment, protest, demand, notice of dishonor or default, notice of
acceleration or intent to accelerate, notice of acceptance of this Guaranty, notice of any
extensions granted or other action taken in reliance hereon and all demands and notices of
any kind in connection with this Guaranty or any Guaranteed Obligation.
4. Guarantor hereby acknowledges full and complete notice and knowledge
of all the terms, conditions, covenants, obligations and agreements relating to the
construction of the Project set forth in the 380 Agreement.
5. The payment by Guarantor of any amount pursuant to this Guaranty will
not in any way entitle Guarantor to any right, title or interest (whether by subrogation or
otherwise) of Omni under the 380 Agreement or to any security being held for any
Guaranteed Obligation.
6. This Guaranty will be continuing, absolute and unconditional and will
remain in full force and effect until the Guaranteed Obligations are performed and all
obligations of Guarantor under this Guaranty are fulfilled.
7. This Guaranty will also bind the successors and assigns of Guarantor and
will inure to the benefit of City and City's successors and assigns.
8. This Guaranty will be governed by and construed according to the laws of
the State of Texas and will be performed in the county identified in the first paragraph of
this Guaranty. The situs for the resolution (including any judicial proceedings) of any
disputes arising under or relating to this Guaranty will be the county referenced in the
Exhibit B—Page 2
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
first paragraph of this Guaranty.
9. If this Guaranty is executed by more than one person, all singular nouns
and verbs herein relating to Guarantor will include the plural number, the obligations of
the several guarantors will be joint and several and City may enforce this Guaranty
against any one or more guarantors without joinder of any other guarantor (hereunder or
otherwise).
10. City and Guarantor intend and believe that each provision of this Guaranty
comports with all applicable law. However, if any provision of this Guaranty is found by
a court to be invalid for any reason, the remainder of this Guaranty will continue in full
force and effect and the invalid provision will be construed as if it were not contained
herein, and if such a finding reduces or eliminates any benefit to City hereunder, the City
and Guarantor will mutually work together in good faith to amend this Guaranty
promptly so that the full intended benefit to the City provided hereunder is restored.
11. Guarantor will, from time to time, within ten (10) days after written
request by City, execute and deliver to such persons as City may designate, an estoppel
agreement certifying that this Guaranty is in full force and effect and further certifying
such other matters as City may reasonably require.
12. This Guaranty and Guarantor's liability hereunder is only related to the
Guaranteed Obligations and nothing set forth herein shall be deemed to impose on
Guarantor any liability or obligation to guaranty the performance of any other obligations
or covenants of Omni under the 380 Agreement or under any other agreement entered
into between the City and Omni.
13. This Guaranty will terminate with respect to the Completion Obligation,
and Guarantor will be released from all liability hereunder relating thereto, when the
Project is Substantially Completed. This Guaranty will terminate with respect to the 380
Payment Obligation, and Guarantor will be released from all liability hereunder relating
thereto, upon the expiration of the 380 Agreement and the satisfaction of Omni's
obligations thereunder relating to the 380 Payment Obligation. Upon satisfaction of the
Completion Obligation and upon expiration of the 380 Agreement, the City shall deliver
a written instrument signed by the City acknowledging that the applicable Guaranteed
Obligation has been satisfied, which instrument shall be delivered to Guarantor within
fifteen (15) days after receipt of written request therefor from the Guarantor. The City's
delivery of such instrument, however, is not a condition precedent to the termination of
this Guaranty pursuant to this Paragraph 13.
14. If, during the term of this Guaranty, Guarantor's net worth, as shown on
Guarantor's annual audit prepared in accordance with generally accepted accounting
principles, decreases to an amount equal to Two Hundred Million Dollars
($200,000,000.00) or less, the City may require Guarantor obtain payment and
performance bonds in a form reasonably acceptable to the City to secure the Substantial
Completion of the construction of and full payment for construction of the Project, by
Exhibit B—Page 3
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
delivering written notice to Guarantor. Within thirty (30) days after receipt of such
notice, Guarantor shall cause such bonds to be delivered to the City. If Guarantor has not
delivered the such bonds to the City within such time period, City may obtain such bonds
on Guarantor's behalf; the cost of which will be repaid to the City as an offset against the
Lease-Based Grant under the 380 Agreement; provided, however, before obtaining such
bonds, the City must first meet and consult with Guarantor to determine the status of
Guarantor's efforts in obtaining the bonds. If Guarantor delivers the bonds as required by
this Paragraph 14, Guarantor shall be released of all further liability under this Guaranty
with respect to the Completion Obligation. The City shall have the right, no more often
than once per calendar quarter, to verify the net worth of Guarantor by reviewing the
financial information of Guarantor (including the compliance certificates prepared by
Guarantor for review by its institutional lenders), which shall serve as conclusive
evidence as to whether the net worth requirement is satisfied. The City's review must
take place at the office of Guarantor and the City shall not be permitted to make copies of
any documentation reviewed at Guarantor's office. The City shall give Guarantor at least
fifteen (15) days written notice in order to set a meeting at Guarantor's office for such
review.
[Signature page follows.]
Exhibit B—Page 4
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty
this day of 112006.
GUARANTOR:
TRT HOLDINGS, INC.,
a Delaware corporation
By:
Name:
Title:
ADDRESS:
TRT Holdings, Inc.
420 Decker Drive
Irving, Texas 75062
Attn: President
With a copy of notices to:
Omni Hotels Corporation
420 Decker Drive
Irving, Texas 75062
Attn: Michael G. Smith
Exhibit B—Page 5
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
EXHIBIT "C"
DIAGRAM OF HOTEL PROPERTY
The Hotel Property consists of roughly the southern 2/3 of Blocks 7 and 8,
Tarrant County Convention Center Addition, an addition to the City of Fort Worth,
Tarrant County, Texas, as recorded in Volume 388-59, Page 14, Plat Records, Tarrant
County Texas. A diagram of such property is attached hereto. Once the exact location of
the Project has been determined and final plans and specifications for the Hotel and the
Hotel Garage have been approved by the City in accordance with Section 4.3 of this
Agreement, the Hotel Property will be replatted as agreed to by and between the City and
OmnL
Exhibit"C"
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership, LP.
CIS
W'a�+
qq
m
cn y
W 13TH ST
+.
W LANCASTER AVE AyE- -
W LANCASTER AVE 1 E LANCASR
EXHIBIT "D"
MINIMUM HOTEL OPERATING STANDARDS
[The Minimum Hotel Operating Standards appear on Exhibit "D-1"and Exhibit "D-2"]
Exhibit D—Solo Page
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership.LP.
EXHIBIT "D-1"
THREE-STAR RATING-MOBIL TRAVEL GUIDE
Lodging Criterb and Expectations
-Note: Tris kSMing croode are frac,r,r.•;re,J triter(&of what a guest can gerienaay expect at
each star level. They are nr`irdtv*kf(,j4y m,7aridated nor are they limited to those items Nsled
haiow. These are mercy a spry>errfai,vtr samplYig of the hundreds of points covered during
our inspection process. A.drr,Priiilli, nit each level the bdgkV establishment is regWred to
meet or exceed the requbemenis of the prevtoua star raring.Far example,a rwo-Star hotel
meets the criteria expectahans of a Two-Star hotel as wed►w the One-Star hotel. A Three-
Star hotel meets the ertterta expectations of a ThnwStar hotel.a No-Star hotel and One-Star
hotel,and so forth.
* On*4ter Lodaina Establishment is a clean,comfortable.and reliable,limited service
establishment. Courteous service and good housekeeping,Including daily maid service.are
standard. Characteristics of a One-Star Hotel or Motel inckide:
Servicws Detail
-Staff is well-groomed with professional,neat and well-maintained attire.
•
AN staff encountered are pleasant and professional in their demeanor
Coffee,hot tea and lxeakfast pastry are available on-site(could be In-room).
* * Tw"tar Lodging F—stablishmont provides clean,comfortable and reliable
acoommodations 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 favid all of the
qual1W for a One-Star Hotel,or Resort plus the following characterlstics:
Services Detail
-Front desk staff are articulate,smile and make eye contact.
-Staff is attired in well-fitting,consistent uniforms.
-Baggage assistance is available on request.
-The front desk is staffed twenty-four hours.
-Restaurant on-site serving three meals daily.
-If Inn,twenty-tour how quest service evariable on-call
* * * Three&tar Lodging Establishm*nt 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 failowing characteristics:
Services Detail
-Turndown service is available upon request
-Valet parking Is available.
-Baggage assistance is automatic.
-Same day laundry and dry cleaning available five daystweek.
-Complimentary newspapers are delivered to room automatically.
-Complete room service is available.
-Workstation Is available where guest can access Internet.
-Basic fitness equipment is provided.including treadmills and cycles.
-If Inn,restaurant on-site which serves full breakfast is available.
-If Resort.complimentary newspapers(or newsfaxes)are delivered to room automatically.
Exhibit D-1—Solo Page
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
EXHIBIT "D-2"
FOUR-DIAMOND RATING—AMERICAN AUTOMOBILE ASSOCIATION
wn"r
Accepted 24 txx m a4tw at properly or through
a cwraal reservation sysmu
., Phone pron*yr answered wgNn ones rings
Warm acrd ainosre geeWp offered
Assrvaeonist aft rate deuduw,WAWA
A
worm,kcstift and servicas
nonerol ft morn,enplirn il prapmV Is a
smoke-hes prerMN
f 4sC Reaerveaonia cowm magus sm kdNmabon
Reservat orhat.eapMrins deposit and oencef bon
-" Reserve niat w0ains wxmral payment opNar
Reservalmi d revieara reservation request
.,r ? Resery oky4st awes catnrmettan ntftrn w or
s'� �? oonacl'e name
K •
:�•.
`r 3 R�rvatfordst warmly and ainaarHy ow"
quest for cm"
Reaervaionlal addresses guest W rare durt+q
�'- r��;7!tt`::•,'�_= UnNbrmed atlsrxfent pron>Endy OpMu$►e Cir
r ,. kik ? doe and provides a warm and sincere welcome
Attendant engUins pat"procedure
r K,T, d�'�y . Attendant promptly unloads itrppage.expl"
twndong pmoodure,and ptvaa dfnellon to
'' Y ' "\• 1.����Y: togW rablon area
` f AAsndent otters a warm and sirrosta clod"
ye
L'hec�r•�r* K s Attendant provides swum and singe grOOOM
r0000rlaaa guest gvrw*"
r '^r• 'ha# y AfNndart adarw ledges gusels%vW*q In tare
WM a warm and vesicarnkV woe*v
Regisfered quaab not nasked br i;Or--
Attendar a comrme rate and type Of room
�. � Cv
M�«�++1. _ Attandant ddiwt!massages decree*
Attend st pmvides►opo rearber dt mm*
Mambo pieces al fegMaW ralerials iMo
Ne guest's hand
„;4z•,:r, -� o a Atkovh"errenyes sawn of quest and
Udongings b morn
h
Attendant Otters a warrrl ClOielp
and sirrtws
ASwxW t addtesese guest by name during
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
• ' k 1:
tfr cSort pP[«iet nurri,u+jctrerceflttr�•
A el ire r" :o ueng guooft rtams
Esowt is able to pralde Ydanratiion abaJt i
- y fadili"when asked
EsoDA des b hang Wmet beg arta POM
kaWW an k=ap stand or in area
A Esoort V#atu tateasa and MCWM of mom
�*t'�- `•` Eaton Orkae to 41 ice b uc atl
r ...
E- -,f.• Eawd asks M tow aro arty dor ways to be
of swvft
resort o"a-At";inci:dr em*closing
TFunridown service ava71nib1tt on reeluest{Servki
s
' be vM 4*wrarW
�Y vr*y)
�}'J �s4 Operator arw"m phom prate wik* Ihrw
a tP S 4.
•�i4�(M,�: rings
Operaory,.d%e a warm ar avvere yT i
uokv yeast's rearms
OperaW offers a wenn and skKens doairtp
Mendwrt accomnwdolu n pods for Ima
♦} , .,,�T, _ ,w Folds back or ranv#eo boOmproad
Tuns up Pismo
Suaiphferrs batltroarti ra-poYMs tisanes,
wipeswrfaceo
;t Yry, Rspt7 m used towels
?aj;r EnV*mwastebasket
��'Ja�• , ,>{, Ck"ns aehhsir
Aqusttt drapes
.Y ,D.p u��. . I a•c:tC
Wake-Up CARS sewn days
week
Service number Is answered worn three* o
rl•s>.
..... OponMr pnwWos a wenn and anoero Wee ft
F,i��' ` /u*q guedIs nww when od ire{r/e�gueoleled
rt' Oporalor overs a warm and shvem cao*V
Airtontaled Rnsanal C8/rBioaived wi1Nn Ove i
mkxMs of reguestsd time(Serv+ca mq be
Autc"B sd with 4 diamord onlo
f f i': A• i
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
�?�.��'���-;.ate. ""��'*� �-��`��y sea -�,a.:•+"ivCr� •� :�►� `,���;
t•t ,�."v.K';K�f.�'+�;'sr,f dYrJ'�i 7..�� .:.,aaZ�`�� Wi �L`'4�� I! C .
9�xr
fi rfrl�i Fy �` d!'
y IN—
SerVA:e number is answred wMM shwa nnga
Y(�� OpWorpmWdaswarm and
aw+oangiwthp,
s*9 9w4h wart,.
Oparaior asks appopiaM 4► and r ip—
,� M a DebtaionM mwrrer
Opaimar"VON Order to gued
� �, q^�� Opaalor Stluse lima eeamabe br deWMy
t&Mdn 30 W*wk l
Opraior offers a warm and sk"W do ft
Operator cab b advba guest M ordu wd be
tab or Mensa amend an not va bble
SpwW wpm ambos are swaiMble for
et
' DeRvarod*0'rn Me miram of tlnle pmmsed
Mornmg newspaper d*Amd b door or wNh
bn kbd(M dW wned to quest door the paper
'x b prasantsd wah trreatdast)
s Aundwo alien a wrgpeefim as b kept"
r Ailerx>arM;uric-wrw west order
�„+ _ '. Attertdrtt':raparey f sr."t-up afrd rMrlDVaa
i food omoom-Moh gtmnl F pl mi4a rn
Qd y ?:i Fddd Wrnr+ri"aR+SAd1i(ip tilil�f:N kigr�etttr
�r• .;r„�.ts,�.rµ;.:[.:mlo rtanaFr7encr: -
7 p"f AN appmprlsle d1a w are ad breves end an
uptosie qmW
4.
AN toed Is served as to proper Uw pwMm
(hd food hot end cdd toad coid)
F AS tgod is prepared as oKWW
r. Adendant others to Pour beveroge
Abandud provides wrOm or ve"kWnwftu .
for aw t.wenrsgr nnwvaf f
Attendant offers a[swan end skx"4m
Mai. romow d MAUtobim was reWed
Sanies umbar as arWA*Md MM three riga
k'butr. ?, �w pn a warm and ainoaea preaAap;.
elllift Buse"
Oparabr snare to review a/or arra,.-of1M
nnsportedw
OpwvW orAn a warm aM atra5ara do"
Pa.") I not Muth[[Ata
` _ "• rrrku%*.guest ianoad d O ft of
d*6#
'`�. t-�;- •a newt �lI
8eftan provides a warm and i l,r N graefMg,
_ u*q guasl"a nww
Sor.an in*riim abort[weft sW
:. Melia m Is oanv ersaat wih gu M wiib VvoMq
;� y* admo ou a%MM and skewe doahg
Ma
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
w
WAP I
�: Espreas..kar�k_ sur•eir~gs are a��ta�la 4
twunu%ewn days a week
Atlsndant provides a warm and M cos re"N;
recognizes gL4W apprqxW*
` r wlh m and ynYtiry in Yra
Alwndwi ttlgtrires abotN Wee t stay
AtMndwt provides a oopy of bill for review into
Ohio puaePt hand Attendant confirms payment
j r method
R �
Auendent co"s payment method
Aaandani pWO d»drat folio IM the piees
hard
r , Atttrmdent expresser}a warm and&vem thank-
; you for stayimp at the prop"
F} Aftx*t diens a warm srd Orthene dmft
`^ Guest does not wad mora than five minuiet for i
s "w"pOftatldn
AMWW"provides a warm and snare gree ft
using guaft name z
Attendant is comvrsent pwtw*g to the guesfs '
MY
n Aftaadenf open4 end oltfees door for Ow*e)
y Atlandant deers a warm and Ar"M closing
IV
Amurate pre-programmed phones
" Ids ' I�afr BOtr9 s car e"mvioa number i.ar awO*MhWI
Sew!
Des-
H by phone,oW►alor provides a warm and
sincere Greaft ulYg gtwafs name
AttremdanNopsrsWr is lumbwledpeatfe of all area
atVAco m6 And services
,'.rfs .,�jlR��st, al. J..sola M tlmpu art any direr
woo to be of service
Attendank peraton of m a warm and sincere
•�;���� �<< < ; � A AZEtrWarwJOpsralor addresses pxet by mono
's veld and WufKky a►ailebk
a Afieoensneous chwg"aro Ix1ed erectly a
the%mms room
btvtrsgs outlets reflect the
of to$)roWty
;Staff Aa aSsodales euhibit a professional w..Wlary
N assodetM considleMly maintain eye contact
,',¢,x!• with gueM
N assddatee are approprWely attired name
�.."�•;'r 'd'i:t) SLS.
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership, LP.
EXHIBIT "E"
PROJECT CONSTRUCTION SCHEDULE
EVENT DEADLINE
Engage Architect and Design Team 150 days from Effective Date
Final Plans and Specifications in Place 510 days from Effective Date
Commencement of Construction 600 days from Effective Date
Substantial Completion of Project 1,320 days from Effective Date
Amended and Restated Economic Development Program Agreement
between City of Fort Worth and Omni Fort Worth Partnership,LP.
Dallas_1\43;2@`14\2
42379-1 4/6NOW