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HomeMy WebLinkAboutContract 32788-01 CITY SECRETAI7`-' CONTRACT SUBLEASE STATE OF TEXAS COUNTY OF TARRANT This sublease is made by and between Fort Worth Botanical Society,Inc.,a Texas non-profit corporation,whose address is 3220 Botanic Garden Blvd,Fort Worth,Texas, 76107,hereinafter referred to as"Sublessor"and Arif and Ripika.Fazal,hereinafter referred to as"Sublessee". WHEREAS Sublessor has entered into a lease agreement(Master Lease),City Secretary Contract 32788, with the City of Fort Worth with respect to certain property located within the Fort Worth Botanic Garden,and WHEREAS Sublessor desires that a restaurant be maintained and operated within the Botanic Garden;and WHEREAS Sublessee wishes to enter into a sublease with Sublessor for the purpose of maintaining and operating a restaurant within the Botanic Garden;and WHEREAS the City of Fort Worth has consented to said sublease under the terms and conditions set forth herein; NOW,THEREFORE,in consideration of the mutual promises and covenants herein contained and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, Sublessor and Sublessee agree as follows: ARTICLE I PREMISES 1.01 P_. Sublessor hereby subleases to Sublessee and Sublessee hereby rents from Sublessor upon the terns and subject to the conditions set forth in this sublease, the property described in Exhibit"A"hereto,together with all fixtures thereto,(the"Leased Premises"),for the purpose of the operation of a restaurant upon the Leased Premises. For the same consideration stated herein Sublessor also leases to Sublessee all of the personal property of the Fort Worth Botanical Society listed on the attached inventory labeled Exhibit B,"as is";and,any injury,damage,or loss sustained thereto or arising therefrom shall be the sole responsibility of Sublessee and shall be insured for such exposures under Sublessee's property insurance and liability insurance respectively,and mcr:TMrra#ed herein by reference for all purposes. 01FFICIAL RECORD 1.02 let En*2y ent. Sublessor wanants that,during the term of this YSECRETARY FT-WORTH,TX 04-27-09 A10 :44 IN sublease,so long as Sublessee is not in default hereunder, Sublessee will have the quiet enjoyment of the Leased Premises and the uninterrupted right of use and possession thereof in accordance with the terms of this sublease and the Master Lease with the City of Fort Worth. ARTICLE II TERM 2.01 Initial Term. The initial term of this sublease shall be for a period of five (5)years commencing on April 1,2008,and ending March 31,2013. 2.02 Renewal Term. Upon the expiration of the initial term,and unless terminated by either party as set forth below,this sublease shall be renewed for one additional term of five(5)years(the"Renewal Term'. Such renewal shall be automatic, unless either party has given notice at least thirty(30)days prior to the expiration of the initial term of that party's intent to terminate the sublease upon the expiration of the initial term. Upon the expiration of the renewal term.,this sublease shall terminate. The initial term and the renewal term are hereinafter collectively referred to as the"Term"of this lease. The renewal term is for five(5)years from April 1,2013 to March 31,2018. 2.03 EaLly Termination. During the term of this sublease,either party may terminate this lease upon six(6)months' written notice to the other party. 2.04 Termination Uuon Loss of Leasehold. Notwithstanding anything else herein to the contrary,in the event that the Master Lease with the City of Fort Worth is terminated or not renewed,for whatever reason,during the term of this sublease,this sublease shall terminate immediately upon the termination or expiration of the Master Lease between Sublessor and the City of Fort Worth. ARTICLE III RENTAL 3.01 Rentals sPPay bl Sublessee covenants and agrees to pay to Sublessor each month as rental for the subleased premises the greater of the following: (a) A monthly base rental of one thousand dollars($1,000.00) (the`Base Rent");or (b) A monthly percentage rental of five percent(5%)of gross sales for the preceding month(the"Percentage Rent'). 3.02 Additional Rent. In addition to the above,ten percent(10%)of gross catering sales in the Japanese Garden shall be paid to the Sublessor each month. 3.03 Gross Sales Defined. The term"gross sales"as used in this sublease means the actual total sales for cash,check,or on credit terms,from all sales of food,alcoholic and non-alcoholic beverages,including,without limitation: (a) Sales from all sources derived from business conducted; (b) All sales charged with Sublessee on credit cards or otherwise,regardless of the collection or collectability thereof and without reduction for bad debts, collectable accounts,refimds,or cost of collection; (c) Orders received at the Leased Premises but filled elsewhere,if allowed by Sublessor,except where Sublessee has to pay 10%or more for a facility where catering is done; and (d) All other receipts from all business conducted by Sublessee in,at,from or arising out of the use of the Leased Premises. All sales originally made in,at,from or arising out of the use of the Leased Premises shall be considered as made and completed from the leased premises even though the payment of the account may be transferred to some off-premises office of Sublessee for collection. Each sale upon installment or credit shall be treated as a sale for the full price in the month in which such sale is made irrespective of the time when Sublessee received payment. 3.04 Exclusions from Gross Sales. Gross sales shall not include: (a) Any sums collected and paid out for any excise,sales or use tax required by law,based upon the sale or sales of goods or services,whether now or hereafter enforced to be paid by Sublessee or collected from its customers; (b) The amount of gratuities actually paid to employees. 3.05Ea _. Sublessee agrees to make all payments of Base rent,any additional rent,and utilities fee for each month of the sublease term to Sublessor,at Sublessor's address,on or before the fifth day of the month. The initial monthly payment due hereunder shall be due payable at the time of execution of this sublease. If this sublease commences on a date that is not the first day of a month,or terminates on a date that is not the last day of a month,then the first or last month's base rent payment,as applicable,shall be pro-rated. Payment of any and all monthly percentage rent due under this sublease shall be made,with respect to each month's gross receipts,on or before the 25th day of the following month,and shall be accompanied by the monthly statement required in Section 4.01 below. 3.06 U_ In accordance with Article M herein,Sublessee shall pay the sum specified per month beginning April 1,2008,for utilities at the Leased Premises. 3.07 Rental of the Leased Premises. Rental of the restaurant and/or board room or deck for private parties shall be on the following basis: If rented by the Fort Worth Garden Club,Council of Fort Worth Garden Clubs,or Fort Worth Botanical Society,Inc.,there shall be no charge for the above if the same are available. All other horticultural related clubs and garden clubs shall pay$25.00 for lunchtime private parties and$50.00 for nighttime private parties. All other persons or groups that rent the restaurant and/or board room or deck for private parties shall pay$350.00 for the restaurant and board room or deck for daytime or nighttime use,$100.00 at night for the board room or deck only, $75.00 at lunch for the board room or deck only. These rates may be adjusted by agreement by both parties. Payment of all of said meeting room rentals shall be direct to the Fort Worth Botanical Society,Inc.,with 10%of said payments being returned monthly to Sublessee by the Fort Worth Botanical Society,Inc. Rentals will be allowed only if food service is provided by Sublessee. All rentals of the Leased Premises by Sublessee shall be without regard to the race,color,religion,gender,handicap status, national origin,sexual orientation,or familial status of the persons renting the same. Sublessee reserves the right to exclude any group or individual deemed to be inimical to or a risk to the Gardens Restaurant property or interests. 3.08 Dafly=]ts. Sublessee shall make available daily sales records if requested by Sublessor. 3.09 LateCha e. In the event Sublessee pays any Base Rent,additional rent, utility fee,or other monetary amount required under this lease more than fifteen(15)days after due date then Sublessee agrees to pay 10%of said payment,in addition to said payment,as a late charge. This late charge shall not be construed as interest but is paid by Sublessee to compensate for the expense of accounting for late payments and other collection efforts. ARTICLE IV ACCOUNTING 4.01 Rec-nipSublessee covenants and agrees that Sublessee shall keep and maintain a full,permanent and accurate set of books and records,kept in accordance with generally accepted accounting principles,of all sales of food,alcoholic and non- alcoholic beverages and merchandise and all revenue derived from the conduct of business in,at or from the Leased Premises from which gross sales can be fully and accurately determined,together with all supporting records,including all federal,state and local tax returns. For the purpose of permitting verification by Sublessor of any amounts due as rental,Sublessee shall keep,retain and preserve for at least three(3)years after the expiration or earlier termination of this sublease,a general ledger,all sales slips,cash register tape readings,sales books,bank books or duplicate deposit books,and other evidence of gross sales pertaining to the Leased Premises. 4.02 Monthly Statement. Each month,on or before the 25"day of the month, Sublessee shall furnish to Sublessor a statement setting forth the amount of gross sales by Sublessee for the preceding month. Such statements shall contain such itemization,as Sublessor shall reasonably require. 4.03 Periodic Audits. Sublessor may,upon reasonable notice to Sublessee, request periodic audits throughout the term of the lease. Upon receipt of such notice, Sublessee agrees to make its books and other records available to Sublessor for purposes of such audit. If such audit shall disclose an error in actual Gross Sales to the extent of 2% or more when compared to the Gross Sales previously reported by Sublessee for such period,then Sublessee shall promptly pay to Sublessor the cost of said audit in addition to the deficiency in rentals owing by Sublessee as a result of such error. In addition, Sublessee shall cooperate with any audit of Sublessor by the City of Fort Worth required or allowed pursuant to the terms of the Master Lease. The rights and obligations provided under this Article shall continue for a period of three years following the expiration or earlier termination or this sublease. ARTICLE V USE OF PREMISES AND OPERATIONAL COVENANTS 5.01 Nature of Business and Services Provided by Sublessee. Throughout the term of this sublease,Sublessee agrees to continuously occupy the Leased Premises for the purposes of operating a restaurant thereon(the"Restaurant"). Sublessee also affirmatively covenants and agrees to provide the herein specified operations in a highly professional manner,and agrees that its failure to do so shall constitute a breach of and default under this sublease. 5.02 Sublessee shall Operate. At a minimum, Sublessee shall provide restaurant food service continuously during the hours of 11:00 a.m.to 2:30 p.m.,Tuesday through Sunday,including holidays,except for Thanksgiving Day,Christmas Day,and New Year's Day. Sublessee may in its discretion provide extended hours of food service to the general public in excess of these minimums,provided,however,that said hours of operation shall not conflict with the hours of operation of the Botanic Garden,as established by the City of Fort Worth from time to time. Sublessee covenants and agrees to provide alcoholic beverage service,limited to beer and wine,continuously during all hours of food service except as prohibited by state and local law. The Restaurant may be used after established hours for private events;however,the individual or organization will be subject to additional rental fees as stated in Paragraph 3.07 above. Under special circumstances and mutual consent of both parties,the restaurant can close for agreed-to periods of time with the prior written consent of the City of Fort Worth. 5.03 Alcoholic Beverage S_� Sublessee shall obtain,at its sole cost,all necessary permits and licenses required for the sale of alcoholic beverages on the Leased Premises and Sublessee covenants and agrees that said permits and licenses will remain current and in effect throughout the term of this sublease. Sublessee and Sublessor hereby mutually agree that they shall not at any time during the term of this sublease take or permit to be taken or suffer any actions which are prohibited by the Alcoholic Beverage Control Authorities of the State of Texas,Tarrant County,or the City of Fort Worth,Texas, including,but not limited to advertising which violated any such laws,rules,or regulations. Further, Sublessee agrees that during all hours that the Restaurant is open for business a manager who has successfully completed an alcohol awareness training program shall be on the Leased Premises to supervise employees who serve alcohol. Sublessee shall maintain documentation verifying completion of such a course by each manager. 5.04 Menus.Food and Beverage. Sublessee shall provide food and beverage service in accordance with such menus and other food and beverage requirements as shall be acceptable to Sublessor and Sublessee. Sublessee may change menu prices at its sole discretion. Sublessor and Sublessee must mutually agree to all other changes to the overall menu concept and food and beverage requirement and presentation;provided Sublessoe s approval shall not be required for daily specials or regular menu items which fall within a previously approved concept for menu and presentation. 5.05 Special Event Catering. Upon request by Sublessor and mutual consent of Sublessee,Sublessee agrees to provide catering for special events on the Leased Premises, or elsewhere within the Botanic Garden. 5.06 Equipment and Furnishings. Sublessor shall supply permanent fixtures required to operate the Restaurant. Sublessee shall provide a dishwasher,cooking and kitchen utensils,and all other supplies and equipment required to operate the restaurant or for catering,including but not limited to all disposals,condiments,and food. 5.07 P%. Sublessee shall have the right to promote the Restaurant through such media and in such formats as Sublessor may approve. Sublessor shall have the right to promote the Restaurant but shall have no specific obligation to do so. 5.08 Restrictive Covenants. Sublessee hereby agrees and covenants to refrain from the following: (a) The use of any non-recyclable disposable products in food service or storage; (b) Catering of event within the Botanic Garden without the express approval or authorization of Sublessor. 5.09 Rights Not Exclusive. Sublessee understands and agrees that it shall have preferred rights to provide food service within the Japanese Garden,except within the confines of the Leased Premises where Sublessee will have exclusive rights. 5.10 Compliance with Law. Sublessee shall not use,suffer or permit the Restaurant or any part of the Leased Premises to be used in violation of any law,ordinance or regulation of any governmental authority or in any manner that will constitute a nuisance or an unreasonable annoyance,or that might injure the reputation of Sublessor or of the Fort Worth Botanic Garden or of the City of Fort Worth,or that might in any way conflict with any of the terms and conditions set forth in the Master Lease between Sublessor and the City of Fort Worth,or for any extra hazardous purpose,or in any manner that might violate any law or render inoperative or increase the rate of any fire,rental or other insurance on the Leased Premises or its contents. Sublessee shall promptly upon demand reimburse Sublessor for any additional insurance premium charges for any such policy or policies caused by reason of Sublessee's failure to comply with the provisions of this section. The Leased Premises and every part thereof;and all areas to be maintained by Sublessee hereunder,shall be kept by Sublessee in a clean,sanitary,and wholesome condition,flee from any objectionable noise,odors,or nuisances,public or private, including,without limitation,infestations of insects or rodents. Sublessee,at its own expense,shall conform in every respect to all laws,ordinances,and regulations now in force or that are enacted or adopted hereafter which affect its use or occupancy of the Leased Premises,and shall comply with all valid Federal, State,local,and other governmental law,ordinances,rules,orders,and regulations affecting the Leased Premises or a part thereof or the use thereof including all rules,regulations,and/or requirements of the City of Fort Worth Police and Fire Departments,specific requirements made by the City of Fort Worth Fire Marshall,Health,and Code Compliance Departments,by the Texas Alcoholic Beverage Commission,and by any other organization or governmental entities having jurisdiction over Sublessee's operations,including,but not limited to the Americans with Disabilities Act,Occupational Health and Safety Standards Act,and Comprehensive Environmental Response and Liability Act. 5.11 Ltiff. Sublessee at all times shall keep and maintain an adequate staff of employees and an adequate stock of food,beverages,condiments,merchandise and supplies in order to provide its services as required hereunder and to fully service the demands and requirements of customers of the Restaurant. Sublessee shall use as much of the Leased Premises as is possible and consistent with efficient,cost effective management of the Restaurant to provide food and beverage services;Sublessee shall use only so much of the Leased Premises as is reasonable and necessary in the ordinary course of business for storage and office purposes. Sublessee shall use its best judgment,efforts and abilities to produce the maximum profit and volume of sales and to enhance the reputation and attractiveness of the Restaurant. 5.12 ORerating_ Sublessee shall pay all operating costs of the Restaurant, including,without limitation,all employee payroll expenses,payroll taxes,social security payments,cost of goods,sales tax,license and permit fees,garbage and trash removal cost, pest control cost,utility costs,and insurance premiums. 5.13 Sys. Sublessee shall not paint or place any sign,light,advertisement or awning in the Botanic Garden or on the Leased Premises without prior written consent of Sublessor and the City of Fort Worth. 5.14 Pick-Un of Refuse and Restaurant Eq men Sublessee shall not allow refuse,garbage or trash to accumulate in any area serviced by Sublessee pursuant to this sublease,except in receptacles designated by Sublessor. All areas serviced by Sublessee hereunder shall be cleaned by Sublessee in a timely manner. If Sublessee fails to do so, Sublessor,after notifying Sublessee of such conditions,and giving Sublessee a reasonable opportunity to correct such conditions,shall have the right and obligation,to clean such areas and to remove from such areas all refuse,garbage and trash and in such event Sublessee agrees to pay Sublessor's actual cost of such cleaning and removal. Sublessor may at all times and from time to time review Sublessee's cleaning schedule in order to assure Sublessee's proper maintenance and cleaning of the area serviced by Sublessee. Sublessee agrees to cooperate with Sublessor in revising such schedule in a mutually agreeable manner if such objective is not being met. 5.15 Deliveries. Sublessor and Sublessee shall use their best efforts to have all deliveries to and servicing of the Leased Premises done at times and in a manner so as not to disturb or inconvenience the operation of the Restaurant or Botanic Garden's patrons or operations. All delivery trucks and other vehicles servicing the Leased Premises shall park or stand only near service entrances. ARTICLE VI RIGHTS OF SUBLESSOR 6.01 Accesly Su lessor. In addition to any right of access the City of Fort Worth may have under the Master Lease,the Sublessor and its agents and the City of Fort Worth staff shall,upon reasonable notice,have the right to enter the Leased Premises at reasonable hours during the hours that the Restaurant is open for business for purposes of examining or inspecting the Leased Premises,showing the Leased Premises to prospective tenants,emergency entry,or making such alterations,repairs,improvements,or additions to the Leased Premises as Sublessor may deem necessary or desirable;however,to the extent possible,Sublessor will make additions at time when Sublessee is not open to the public for business. Any exercise of a right of access under this Article by the City of Fort Worth or the Sublessor shall not be considered a breach of the covenant of quiet enjoyment or an interference of the use of the Leased Premises by the Sublessee. In the event of an emergency endangering persons or property in the Leased Premises,Sublessor or city staff may,if necessary under the circumstances,forcibly enter the Leased Premises,without liability to Sublessee for such forcible entry and without affecting this sublease.City staff may also enter when responding to an alarm. 6.02 Access Sub1_. Sublessee shall have the right to unlimited access to the Leased Premises and Restaurant parking during all special events held in the Botanic Garden,with the exception of Concerts in the Garden. ARTICLE VII FIXTURES,EQUIPMENT AND FURNITURE 7.01 Title to Property. Subject to the terms and conditions of the Master Lease, all fixtures,equipment and furniture supplied by Sublessor as stated on Exhibit B and all replacements and refurbishments thereof shall be and remain the sole property of Sublessor,and Sublessee shall not be entitled to any payment therefor upon the expiration or sooner termination of the term thereof. Sublessee agrees to cooperate fully in the execution of all statements,including,without limitation,a UCC-1 informational statement filing,to acknowledge ownership of the fixtures,equipment and furniture by Sublessor or the City of Fort Worth,if required. 7.02 Surrender. Upon expiration or sooner termination of this sublease, Sublessee shall surrender the Leased Premises including without limitation,all fixtures, alterations,changes,additions and improvements which have been made or installed from time to time by the City of Fort Worth,Sublessor,or Sublessee in or about the Leased Premises in as good condition as when received or installed,except for reasonable wear and tear. Upon such surrender,Sublessee agrees to turn over to Sublessor all personal property items listed on the attached Exhibit B. Sublessee shall retain ownership of personal property listed on the attached Exhibit C. ARTICLE VIII TRADE NAME 8.01 The Sublessee shall operate the Restaurant on the Leased Premises during the term of this sublease only under the trade name of"The Gardens Restaurant and Catering"or such other trade name as shall be agreed to by the City of Fort Worth,the Sublessor and Sublessee. Sublessee shall not use or occupy the Restaurant under any other trade name without the City of Fort Worth's and Sublessor's prior written consent. Sublessee shall not use the trade name"The Gardens Restaurant and Catering"for any purpose or at any location not specified in this sublease. Upon the expiration or earlier termination of this sublease,Sublessee agrees that the trade name"The Gardens Restaurant and Catering"shall remain the sole property of Sublessor. ARTICLE IX PERMITS AND LICENSES 9.01 Sublessee,at its sole cost and expense and in its name,shall obtain and maintain all necessary alcoholic beverage licenses and governmental permits required by law,ordinance or regulation of any governmental authority with jurisdiction over the operations of Sublessee,pursuant to this sublease. Prior to the commencement of the term hereof and annually thereafter,Sublessee shall provide to Sublessor evidence of the receipt and renewal of each such license or permit. Sublessee shall not transfer,assign,pledge, hypothecate,sublease or agree to transfer any such permit or license during the term of this sublease. ARTICLE X TAXES 10.01 Personal Prop_y= In each tax year during the term,as additional charge, Sublessee shall pay directly or reimburse Sublessor for the full amount of any and all taxes,assessments,fees and other governmental charges,general and special,ordinary and extraordinary,of every kind and nature whatsoever,levied,assessed,imposed or otherwise payable with respect to the ownership or use of all personal property and equipment located in or about the Leased Premises. 10.02 Rea_Pro er Taxes. Sublessor shall pay,before delinquency,all real property taxes,assessments,fees and other governmental charges,general and special, ordinary and extraordinary,of every kind and nature whatsoever,payable as and for real property taxes,which shall,during the term hereof,be levied,assessed,imposed upon or become due and payable with respect to the Leased Premises. 10.03 Sublessee's License Fees and Taxes. All Separate license or permit fees and business taxes,including sales taxes,imposed or payable with respect to Sublessee's interest and operations hereunder shall at all times be kept current and in full force and effect and shall be paid by Sublessee when due. ARTICLE XI UTILITIES 11.01 For each month during the term,as an additional charge,Sublessee shall pay directly or reimburse Sublessor for the full amount of any and all utilities used upon the Leased Premises,including,but not limited to electricity,water,telephone,and natural gas. The cost of said utilities attributable to the Leased Premises shall be as follows: (a) Sublessee will pay an estimated base utility cost of two thousand dollars($2,000.00)per month for electricity,gas,and water,for the initial six months of the term. For each successive six-month period,the monthly payment for electricity,gas,and water will be equal to the monthly payment for the previous six months plus an adjustment. (b) Adjustments in the cost of electric service will be calculated and made as follows: (1) The base kilowatt hours(kwh)for the period October 1st through March 31 st is 42,452 kwh. This base amount will be subtracted from the total kwh billed for these months. The difference will be multiplied by the average cost per kwh for this period This total will be divided by six to give the monthly adjustment to be added or subtracted from the monthly base utility cost for the period April 1st to September 3A (2) The base kwh for the period of April 1st through September 30th is 63,475 kwh. This base amount will be subtracted from the total kwh billed for these months. The difference will be multiplied by the average cost per kwh for this period This total will be divided by six to give the monthly adjustment to be added or subtracted from the monthly base utility cost for the period October 1st to st March 31 . (c) Adjustments for water will be prorated monthly excluding any amounts used for irrigation during the month.This amount will be added or subtracted from the montlily base utility cost. (d) Adjustments for natural gas will be calculated annually based on the median use of gas during the preceding year. This amount will be added or subtracted from the monthly base utility cost (e) Total cost adjustments due to the fluctuations in utility bill amounts over the estimated base utility cost will be totaled and are payable in October of each year- ARTICLE XII INSURANCE 12.01 General LiabilitX_ Sublessee shall maintain at all times during the term of this sublease a commercial general liability insurance policy written by an insurer approved by Sublessor providing public liability(including both personal injury and death)and property damage insurance,insuring against any and all liability of the insured with respect to the Leased Premises or arising out of the maintenance,use or occupancy thereof for the services to be provided by Sublessee hereunder,with a minimum primary coverage of$1,000,000 per occurrence and with a general aggregate and products aggregate of$2,000,000 each. Sublessor and the City of Fort Worth shall be named as additional insureds in each such policy. 12.02 Liquor_tyIn__ Sublessee shall maintain liquor liability insurance written by an insurer approved by Sublessor,naming Sublessor and the City of Fort Worth as additional insureds,with minimum coverage of$1,000,000 per occurrence. 12.03 Workers Compensation Insurance. Sublessee shall maintain Employer's Liability Insurance and statutory Workers' Compensation insurance. 12.04 Notice of Cancellation. The failure of Sublessee to keep in full force and effect any insurance required by this sublease shall be deemed a breach of this sublease. Each policy shall contain a provision that coverage may not be cancelled or reduced until at least thirty(30)days prior written notice has been given to Sublessor and the City of Fort Worth. Sublessee shall provide,at no cost,certificates of insurance to Sublessor upon execution of this sublease and upon demand at any time during the term of this sublease, but not less frequently than every six(6)months showing Sublessor and the City of Fort Worth as named additional insureds on all of the insurance described in this Article X11. ARTICLE XIII IMPROVEMENTS AND ALTERATIONS 13.01 SubSub=or;s Improvements. Sublessee accepts the Licensed Premises and improvements made by the City of Fort Worth and Sublessor in their current condition, as is,and acknowledges that they are suitable for its restaurant operations as contemplated in this sublease. 13.02 Sublessee's Improvements. Sublessee shall make no alterations, additions,changes or improvements to the Leased Premises or any part thereof without the prior written consent of Sublessor and the City of Fort Worth,including any consent required under the Master Lease from the Parks and Community Services Advisory Board and the City Council. Further,necessary and appropriate performance and payment bonds shall be provided by Sublessee and submitted to the City of Fort Worth for approval prior to the commencement of any such alterations,additions,changes or improvements. Any alterations,additions or improvements installed by Sublessee shall be in conformity with all applicable City codes and standards and shall have a valid building permit and other permits or licenses as required by law,which shall be obtained by Sublessee at Sublessee's sole cost and expense. Copies of such permits or licenses shall be furnished to Sublessor before the work is commenced. Neither the City of Fort Worth nor Sublessor shall have any responsibility for alterations,additions or improvements installed by Sublessee. Upon the expiration or earlier termination of this sublease,any alterations,additions or improvements installed by Sublessee during the sublease term shall become the property of either Sublessor or the City of Fort Worth depending on the terms of the Master Lease; under no circumstances shall Sublessee retain any right,title,or interest in the Leased Premises following the expiration or earlier termination of this sublease. 13.03 L_. Sublessee shall promptly pay all costs and charges for all labor done or materials furnished for any work,repair,maintenance,improvements,alteration or addition provided by or on behalf of Sublessee,and Sublessee shall indemnify and hold Sublessor and the City of Fort Worth free,clear and harmless of and from all liens and claims of liens and all other liability,claims,demands and causes of action that arise by reason of any work,repair,maintenance,improvemait alteration or addition provided by or on behalf of Sublessee. Liens shall be liquidated or otherwise corrected within ten days of notification of such lien. ARTICLE XIV MAINTENANCE AND REPAIRS 14.01 Sublessee's Obligation. Sublessee,at its sole cost and expense,shall at all times keep clean and maintain the Leased Premises including,without limitation,floor coverings,interior walls,furniture and furnishings,food preparation areas,restrooms, appliances,grease trap,ceiling,doors,doorframes,windows,entrances,signs,locks and closing devices. Sublessee shall be responsible for structural repairs for damages caused by Sublessee or Sublessee's customers. Necessary repairs and maintenance shall be done by Sublessee within ten(10)days unless the nature of the repair requires a period of longer than ten(10)days,whereupon a reasonable extension of time shall be given provided Sublessee diligently pursues and completes the repair and provided that the City of Fort Worth consents to such extension. 14.02 Sublessor's Obligatio_. Sublessor,at its own cost and expense, shall keep,maintain,repair,replace,renew and restore all utility systems,meters,pipes, ventilation and exhaust systems,conduits,fire sprinkler systems,air conditioning systems, and heating equipment servicing the Leased Premises. Sublessor shall also maintain the foundation,exterior walls,down spouts,gutters and roof of the leased premises. Sublessor shall not by obligated to make any such repairs until after the expiration of ten(10)days written notice from Sublessee to Sublessor stating the need for such repairs or maintenance, except for those repairs of an emergency nature or creating a health hazard. If,Sublessee reasonably believes an imminent danger exists to public health or safety,Sublessee may make the necessary repairs to correct the dangerous condition. In such case,Sublessor shall promptly,upon Sublessee's demand,reimburse Sublessee for any reasonable sum expended in making such repairs;under no circumstances shall Sublessee have any claim or direct recourse against the City of Fort Worth for such costs. Neither the City of Fort Worth nor Sublessor shall be obligated to repair any damage caused by the willful or negligent acts or omissions of Sublessee or Sublessee's agents and employees,and Sublessee shall be responsible for repair of such damage. ARTICLE XV DAMAGES AND DESTRUCTION 15.01 Casual . If the Leased Premises are damaged by fire or other insured casualty and insurance proceeds have been made available therefor to Sublessor,the damage shall be repaired by and at the expense of Sublessor to the extent of the insurance proceeds within one hundred eighty(180)days after the amount of insurance proceeds payable with respect to such casualty have been made available to Sublessor,subject to force majeure,to substantially repair the condition existing immediately prior to such casualty. Neither the City of Fort Worth nor Sublessor shall have any obligation or liability to Sublessee or otherwise to repair or replace any portion of the Leased Premises in the event of an uninsured casualty loss,damage or destruction. 15.02 Right of Sublessor to Terminate. Notwithstanding any other provision of this sublease,if in the sole judgment of Sublessor,any major component of the Leased Premises is damaged or destroyed to an extent exceeding 25%or more of its then monetary value,whether such damage or destruction is insured against or not,then Sublessor shall within a period not to exceed one hundred twenty(120)days alter the insurance proceeds payable with respect to such occurrence of such damage or destruction have been made available to Sublessor,notify Sublessee of Sublessor's election either to terminate this lease,or at Sublessor's sole discretion,to repair or rebuild the Leased Premises to the extent provided in Section 15.01 above;provided,however,that if Sublessor elects to repair or rebuild within one hundred and eighty(180)days after the casualty, Sublessee shall have the right to terminate this lease upon thirty(30)days notice to Sublessor. In the event that Sublessor elects to terminate this sublease pursuant to the foregoing,such termination shall be made without liability of any kind on the part of Sublessor to Sublessee and Sublessee shall pay all required rent and other charges and payments through the effective date of termination. ARTICLE XVI DEFAULT BY SUBLESSEE 16.01 Events of Default. Any one or,more of the following events shall constitute an event of default: (a) Failure by Sublessee to make any payment to Sublessor or any third party as required by the terms of this sublease; (b) Default by Sublessee in the due,prompt and complete performance and observation of any covenant,agreement,or obligation of Sublessee contained in this lease; (c) Failure by Sublessee to occupy and provide full service from the Restaurant on or after the commencement date or failure of Sublessee to continuously operate in the manner required in this sublease; (d) To the extent permitted by law: (1) the making by Sublessee of any general assignment for the benefit of creditors; (2) the filing by or against Sublessee of a petition to have Sublessee adjudged insolvent or bankrupt; (3) the appointment of a trustee or receiver to take possession of any Sublessee's assets; (4) the attachment,execution or other judicial seizure of substantially all of the Sublessee's assets;or (5) the admission in writing by Sublessee of its inability to pay its debts when due. (e) Sublessee's failure to obtain,maintain or operate under all permits or licenses required hereunder; (f) Sublessor's discovery of the material falsity of any financial statement of Sublessee given to Sublessor to induce it to enter into this lease; (g) Sublessor's discovery of the material falsity of any audit or monthly sworn statement given to Sublessor by Sublessee under the terms of this sublease; (h) Sublessee's vacating or abandonment of the Restaurant at any time during the term of this sublease. 16.02 Remedies. In the event of a default by Sublessee,Sublessor shall give written notice of said default to Sublessee by personal delivery or by certified mail to the Leased Premises,with the opportunity for Sublessee to cure said default within five(5) days from date of mailing or personal delivery of said notice. In the event default continues after said five(5)days written notice,then Sublessor shall be entitled to exercise any rights and remedies available to it under the laws of the State of Texas,including terminating this sublease and the tenancy created hereby. In the event of termination of this sublease by Sublessor,Sublessee shall remain liable for any rentals and damages which may be due or sustained by Sublessor and all reasonable cost,fees and expenses including,but not limited to attorneys fees,costs and expenses incurred by Sublessor in pursuance of its remedies hereunder,or in renting the Leased Premises to others from time to time. 16.03 Ogno�rtun_ity, t_Cure. Sublessee shall not be deemed to be in default in the performance of any obligation required to be performed by it hereunder unless and until it has failed to perform such obligation within thirty(30)days after receipt of written notice by Sublessor to Sublessee specifying wherein Sublessee has failed to perform such obligation;provided,however,that if the nature of Sublessee's obligation is such that more than thirty(30)days are required for its performance then Sublessee shall not by deemed to be in default if it commences such performance within such thirty(30)day period and thereafter diligently prosecutes the same to completion. ARTICLE XVII DEFAULT BY SUBLESSOR 17.01 Ou,_,=tvt Cure. Sublessor shall not be deemed to be in default in the performance of any obligation required to be performed by it hereunder unless and until it has failed to perform such obligation within thirty(30)days after receipt of written notice by Sublessee to Sublessor specifying wherein Sublessor has failed to perform such obligation;provided,however,that if the nature of Sublessor's obligation is such that more than thirty(30)days are required for its performance then Sublessor shall not by deemed to be in default if it commences such performance within such thirty(30)day period and thereafter diligently prosecutes the same to completion. 17.02 Extended Closure. If at any time during the term hereof,the Botanic Garden is not open to the public for any consecutive thirty(30)day period, Sublessee may, at its option,terminate this sublease by giving Sublessor written notice of its intention to do so within sixty(60)days after the expiration of said thirty(30)day period. In that event, this sublease will terminate on the date stated in the notice. ARTICLE XVIII NATURE OF RELATIONSHIP 18.01 Sublessor and Sublessee agree that the nature of the relationship between them is one of landlord and tenant,and no other. Nothing contained in this sublease shall be deemed or construed to create the relationship of principal and agent or that of partnership or of joint venture or of any association between the City of Fort Worth, Sublessor,and Sublessee,and any intention to create a joint venture or partnership relationship between the parties hereto is hereby expressly disclaimed. Neither the method of computation of rental,nor any other provisions contained in this sublease,nor any acts of the parties hereto shall be deemed to create any relationship other than that of landlord and tenant. Sublessee shall maintain exclusive control,direction and management of its employees;neither the City of Fort Worth nor Sublessor shall have any rights with respect thereto,except for the City of Fort Worth's or Sublessor's right to enforce covenants of the Sublessee as set forth in this sublease. ARTICLE XIX ASSIGNMENT 19.01 Sublessee may not assign or sublet the Leased Premises or any portion thereof,nor may Sublessee assign,transfer or delegate to any person Sublessee's rights or duties with respect to the Leased Premises or the operation of the Restaurant. ARTICLE XX INDEMNIFICATION 20.01 Sublessee's Obligations. Sublessee shall indemnify Sublessor and the City of Fort Worth and their respective officers,directors,employees,agents,successors and assigns,against and hold them harmless from,and promptly reimburse them for,all payments of money(including fines,damages,legal fees,expenses,etc.)occurring, suffered or incurred in connection with: (a) Any and all claims of damage or injury arising from Sublessee's use of the Leased Premises or operation of the Restaurant thereon or from the conduct of Sublessee's business or from any activity,work,construction or thing done,permitted or suffered by Sublessee in or about the Leased Premises or within the Botanic Garden,EVEN WHERE NEGLIGENCE OF THE SUBLESSOR AND/OR THE CITY OF FORT WORTH IS ALLEGED; (b) Any and all claims arising from any claim,demand,tax,penalty or judicial or administrative investigation or ping from alleged breach or default in the performance of any obligation of Sublessee hereunder including, without limitation,Sublessee's obligation to produce certain insurance as hereinafter provided; (c) Any and all litigation related to activities of Sublessee in the Leased Premises or in the Botanic Garden where Sublessee and/or the City of Fort Worth has been joined as a party therein;or (d) Any other act or omission of Sublessee or any of Sublessee's agents, employees,contractors,invitees or licensees. Sublessee's indemnification of Sublessor and the City of Fort Worth hereunder shall in all respects survive the expiration or termination of this sublease. ARTICLE XXI NOTICES 2 1 0 1 All notices required or permitted, including rental payments, under this sublease may be given to a party personally or by mail,return receipt requested, addressed to such party at the address stated below or to such other address as one party may from time to time notify the other in writing. Any notice so given shall be deemed received when deposited in the United States mail so addressed with postage prepaid: Sublessor: Fort Worth Botanical Society,Inc. 3220 Botanic Garden Blvd. Fort Worth TX 76107 Sublessee: Arif Fazal Ripika Fazal 2911 St.Martin Mansfield,TX 76063 ARTICLE XXII GENERAL PROVISIONS 22.01 Relationship to Master Lease; Approvals from Citv, Sublessor and Sublessee acknowledge and understand that the terms of this agreement are subject and subordinate to the terms of the Master Lease between the Sublessor and the City of Fort Worth. In the event of a conflict between the terms of this agreement and the Master Lease, the terms of the Master Lease shall control. Wherever this sublease requires approval from the City of Fort Worth, such approval may be obtained from the Director of the Parks and Community Services Department or that individual's authorized representative. 22.02 Bi din Effect. The provisions of this sublease shall be binding upon and enure to the benefit of the parties hereto and their respective heirs,successors and assigns. 22.03 Inter retation and Place of Performance. This sublease shall be construed under the laws of the State of Texas and is deemed by the parties to be performable in Tarrant County,Texas. 22.04 Partial Invalidity. If any one or more of the provisions contained in this sublease shall for any reason be held invalid,illegal,or unenforceable in any respect,such invalidity,illegality,or unenforceability shall not affect any other provision herein,and this sublease shall be construed as if such invalid,illegal or unenforceable provision had never been contained herein. 22.05 Att, , Fees. If either party engages an attorney to file suit in order to enforce any right under this sublease,the party against whom such action is taken agrees to pay the filing party the reasonable costs of necessary attorneys fees incurred therewith, provided the filing party prevails in such judicial action However,the parties hereto agree to mediation prior to the filing of any suits. 22.06 Amendment. This sublease may not be altered,waived,or otherwise modified,except where done in writing,and signed by Sublessor and Sublessee and consented to by the City of Fort Worth. 22.07 Entire _ This instrument contains the entire agreement between the patties relating to the subject matter herein. There are no other verbal or written understanding,promises,agreements,or representations relating to the subject matter of this sublease which have not been included herein,and this sublease supersedes any and all other agreements,either oral,or in writing,between the parties hereto with respect to the subject matter herein. [SIGNATURES APPEAR ON NEXT PAGE] EXECUTED in multiple copies this the 1 $ qday of 2009 SUBLESSOR: Fort Worth Botanical Society,Inc. "—�0 f=— a-Y-11 CLI,-("Q Mrs. Fran Mizell,President SUBLESSEE: l Arif Fazal 1O�dA-C Ripika Fazal "The City consents to this subcontract pursuant to Sec. 15 of City Secretary Contract No. 32788. CITY OF FORT WORTH By: C aniels Assistant City Manager Date: APP ED AS F AND LEGALITY: ll v Assistant diAtto Date: A0 3 Zaac( A 2-- Marg Hoodrix, Secretary OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX EXHIBIT B FWBS RESTAURANT INVENTORY 1 Walk in Freezer(located in storage building) 1 Ice Machine 1 Vent A Hood SS 1 Gas Range 1 3 Door Freezer SS 1 2 Door Refrigerator 1 2 Door Refrigerator SS 1 Work Table SS 1 Work Table SS on rollers 1 Mirror-wrought iron frame 2 Upholstered Chairs 19 Chinese Flower Pots 81 Black Padded Chairs(dining) 13 Square Tables-36X36# 2 Round Tables 48"2 Round Tables 36"no plastic tops 6 Rattan Arm Chairs 1 Rattan Sofa 12 Leather Arm Chairs 2 Windsor Arm Chairs 1 Large Sideboard 1 Small Server 1 Refinished dining table 1 Chandelier 1 Set-Gas Logs and Andirons 4 Booster Chairs 1 CD Player-Sony 3 Large round Folding Tables I Movie Screen 2 Wooden Blinds-Board Room EXHIBIT C INVENTORY OF PERSONAL PROPERTY BELONGING TO SUBLESSEE Inventory necessary to operate the business. PAGE 1 PAGE 1 PAGE 2 n. PJL to -ur aMC6 omm cao ar+ua t7G IT, 172 N.h 4% � i Avrcao..+ i • 1 3 54' ' bou�na.1 a�wui ieeoM �� 5v -155 T 7ZO 1W-Y- ' 15 W7W MW f/ �� a Ltxt Micsi. Go ALL 3 6F-OUP5 f�O AFJ14A.L. ;0UETY/6rrY10 oFN lzoc l�SPR i►�ila5 � [�►�L�T' Maintenance Compound 41 } V �@ o f 0 Main Entrance Gate &Courtyard 0 Ticket Office © Suzuki Garden 0 Karesansui (Dry Landscape:Garden) 0 Lake Arbor Sj 2i r r r 0 Waterfall Overlook t � + 0 Hill Arbor 0 Moon B#dge 0 Mary K Umstead Teahouse r 4 4) Summer House T �� ®Moon Viewing Deck 9 Bride's`Room & Restrooms Pavilion (ID Checkerboard Bridge Y r' ® Mikoshi Waterfall �.. � ® Pagoda y� (D The Treasure Tree Gift Shop m Exit © Restrooms (facility near Main Entrance is accessible) 0 Parking 0 Fishfood Dispensers 0 Accessible Path Markers are Located ORT WOR Throughout The Garden. For accessible route directions to the Pavilion CITY OF FORT WORTH and Moon Viewing Deck,please contact the 3220 BOTANIC GARDEN BOULEVARD Ticket Office. FORT WORTH.TEXAS 76107 (817)871-7686 03/2007