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HomeMy WebLinkAboutContract 46805-A1csc # 46805-Al AMENDED AND RESTATED LEASE AGREEMENT This Amended and Restated Lease Agreement (the "Lease") is entered in to on this the day of July 2023, between the City of Fort Worth, Texas, a home -rule municipal corporation ("Landlord") and the Pocket Theatre, Inc., d/b/a Hip Pocket Theatre, a Texas non- profit corporation ("Tenant"). WHEREAS, since 2004, Landlord and Tenant have been party to a series of lease agreements pursuant to which Tenant is provided use of 11.25 acres of property owned by the Landlord for the operation of a theater complex; and WHEREAS, the most recent lease was executed to be effective June 23, 2015, with a five-year initial term and five one-year renewal options and with a rental payment of $14,702.00 per year; and WHEREAS, with the advent of the COVID-19 public health emergency in March of 2020, Tenant was unable to operate the theater or make rent payments; and WHEREAS, the Fort Worth City Council has found that the operation of a theater by Tenant serves a public purpose and has authorized an amended and restated lease pursuant to which Tenant's monetary obligation will be reduced and made more consistent with other Landlord - owned facilities that are operated by non-profit entities for cultural and artistic endeavors; and WHEREAS, the parties wish to execute this Amended and Restated Lease Agreement to reflect the revised terms to apply to their relationship. NOW, THEREFORE, Landlord and Tenant do hereby agree as follows: ARTICLE 1. LEASE OF PREMISES § 1.01. Leased Premises. In consideration of the mutual covenants and agreements of this Lease, and other good and valuable consideration, Landlords demises and leases to Tenant, and Tenant leases from Landlord, the premises situated in Fort Worth, Tarrant County, Texas, depicted in Exhibit A attached to this Lease, and made a part of this Lease for all purposes (hereinafter referred to as "the Premises" or the "the Leased Premises" in this Lease). ARTICLE 2. LEASE TERM §2.01 Primary Term. The term of the Lease shall govern a period commencing on June 23, 2022, and continuing for six (6) years from said date, unless tetiiiinated sooner as provided in the Lease (the "Primary Term"). So long as this Lease has not been terminated under Article 13, the Lease may, prior to the expiration of the then -current term, be renewed for an extension of one year, with a total of five such extensions available. Tenant shall notify Landlord in writing 30 days prior to Tenant's commencement of on -site seasonal activities on the Leased Premises. It is Lease Between the City of Fort Worth and Hip Pocket Theatre Page 1 of 17 OFFICIAL RECORD CITY SECRET RY FT. ORM, TX specifically understood and agreed that the Leased Premises shall be used for an outdoor amphitheater in accordance with the permitted use described in Section 3.01 below. § 2.02. Termination. The Lease will terminate without further notice when the Primary Term or any extension thereof under § 2.01 expires, and any holding over by Tenant after the term expires will not constitute a renewal of the Lease or give Tenant any rights under the Lease in or to the Premises except as a tenant at will. § 2.03. Holdover Tenancy. If Tenant holds over and continues in possession of the Premises after the Primary Term or an extension under § 2.01 expires, Tenant will be considered to be occupying the Premises at will subject to all terms of this Lease. ARTICLE 3. USE OF PREMISES § 3.01. Permitted Use of Premises. Tenant may use the Premises only for the purpose of developing, constructing, and operating a public theater known as the Hip Pocket Theatre (the "Theater") and for purposes ancillary to the operation of Theater and for no other purpose without the written consent of Landlord. § 3.02. No Hazardous or Toxic Substances. Under no circumstances during the Tenn and extension of this Lease will Tenant (i) use or cause to be used in the business operated on the Premises any hazardous or toxic substance or materials or (ii) store or dispose of any such substances or materials on the Premises. § 3.03. Illegal Use Not Permitted. Tenant may not use all or any part of the Premises or any building situated on them for any use or purpose that violates any valid and applicable law, regulation, or ordinance of the United States, the State of Texas, the County of Tarrant, or the City of Fort Worth, or of any other lawful authority with jurisdiction over the Premises. § 3.04. Prohibited Uses. Tenant shall not use or allow the Premises to be used for camping or outdoor cooking. Tenant also shall not use or allow to be used all -terrain vehicles on the Premises. § 3.05. Condition of Premises. Tenant agrees to accept the Leased Premises in their present condition, finds them suitable for the purposes intended, and further agrees that it is thoroughly familiar with such condition by reason of a personal inspection and does not rely on any representation by Landlord as to the condition of the Premises or their suitability for the purposes intended. ARTICLE 4. RENT § 4.01. Base Rent Obligation. During the Primary Teiiii, the base rent for the Leased Premised shall be $1,000.00 per year, due and payable in accordance with § 4.02. Lease Between the City of Fort Worth and Hip Pocket Theatre Page 2 of 17 § 4.02 Additional Rent. The parties acknowledge and agree that certain monetary rent obligations were not met beginning in 2020 and that a current balance of $30,404.00 is unpaid. In lieu of immediate full cash payment, the parties have agreed that Tenant will either: (a) Fully complete, to Landlord's reasonable satisfaction, the construction of all mandatory improvements as detailed in Exhibit B on or before November 30, 2023; or (b) Make five payments of $4,167.34 each, with the first such payment due on or before December 15, 2023, and subsequent payments due at the same time as base rent under § 4.04 PLUS a sixth payment of $5,067.34 due no later than June 23, 2028. § 4.03 Additional Obligations. In addition to payment of base rent and additional rent, Tenant shall be obligated to perform maintenance and repairs in accordance with Article 8. § 4.04. Payment of Rent. Tenant shall pay the rent annually. The rent shall generally be due on or before June 23 of each year of the Lease, provided, however, that $2,000.00 in base rent for the lease years commencing on June 23, 2022 and June 23, 2023 shall be due and payable on execution of this Lease and the initial payment of additional monetary rent, if any, due under § 4.02(b) shall be due and payable in accordance with the terms of that section. ARTICLE 5. CONSTRUCTION BY TENANT § 5.01. General Conditions. Tenant may, at any time and from time to time during the Teini, erect, maintain, alter, remodel reconstruct, rebuild, replace and remove buildings and other improvements on the Premises, and correct and change the contour of the Premises, subject to the following: a. Tenant bears the cost of any such work. b. The Premises must at all times be kept free of mechanics' and materialman's liens. c. Tenant must provide performance and payment bonds covering any such work, in form acceptable to the City Attorney. d. Landlord must be notified of the time for beginning and the nature of any such work, other than routine maintenance of existing building or improvements, prior to the work being performed. e. Landlord shall not be responsible for reimbursing the Tenant for any improvements constructed on the Leased Property. All improvements costs are the sole responsibility of the Tenant. f. The condition of § 5.03 concerning Landlord's approving plans must be followed. Lease Between the City of Fort Worth and Hip Pocket Theatre Page 3 of 17 § 5.02. Easements, Dedications, Zoning, and Restrictions. Landlord will cooperate with Tenant concerning easements, dedications, zoning, and restrictions of the Premises as follows: a. Easements and Dedications. To provide for the more orderly development of the Premises, it may be necessary, desirable, or required that street, water, sewer, drainage, gas, power lines, and other easements and dedications and similar rights be granted or dedicated over or within portions of the Premises, Landlord will, on Tenant's request, join with Tenant in executing and delivering the documents, from time to time, and throughout the Primary Term or any extension thereof, as may be appropriate, necessary, or requited by any governmental agency, public utilities, and companies for the purpose of granting the easements and dedications, provided, however, any such grant of easement or dedication shall be subject to City Council approval. b. Zoning If Tenant considers it necessary or appropriate to obtain use, zoning, or subdivision and plan approval and permits for the Premises or any part of them, Landlord, subject to any required approval by the City Council or other appropriate City board or commission, will execute the documents, petitions, applications, and authorizations as are appropriate or requited to submit the Premises, or any part of them, for the purposes of obtaining conditional use permits, zoning and rezoning, tentative and final tract approval, and plan approval. Landlord, at its sole discretion, will execute these documents from time to time as requested by Tenant. c. Expenses. Tenant exclusively bears the cost and expense of any action required of Landlord under subparagraphs a and b, above. § 5.03. Landlord's Approval of Plans. The following rules govern Landlord's approving construction, additions, and alterations of building or other improvements including cutting trees on the Premises: a. Written Approval and Permits Required. No building or other improvements may be constructed on the Premises unless the plans, specifications, and proposed location of the building or other improvement has received Landlord's written approval and the building or other improvement complies with the approved plans, specifications, and proposed location. It shall be the responsibility of the Tenant to pay for and acquire all necessary building permits prior to initiating work approved through the city review process. No material addition to or alteration of any building or structure erected on the Premises may begin until plans and specifications covering the exterior of the proposed addition or alteration have been first submitted to and approved by Landlord. No cutting of trees or building of roads may occur until Tenant receives Landlord's written approval. b. Submission of Plans. Tenant must, at its own expense, engage a licensed architect or engineer to prepare plans and specifications for constructing the Theater or for constructing any other buildings or improvements or additions or alterations to any buildings or improvements that require Landlord's approval under subparagraphs a Lease Between the City of Fort Worth and Hip Pocket Theatre Page 4 of 17 above. Tenant must submit one electronic and two complete written sets of construction plans and of detailed working drawings, plans, and specifications and any additional copies of site plans as required by Landlord for constructing the Theater for Landlord's approval after this Lease is executed. If Tenant wishes to construct any other building or improvements or make any additions or alterations to building or improvements for which Landlord's approval is required under subparagraph a above, Tenant must submit one electronic and two written copies of detailed working drawings, plans, and specifications for any such projects for Landlord's approval before the project begins. c. Landlord's Approval. Landlord will promptly review and approve all plans submitted pursuant to subparagraph b above or note in writing any required changes or corrections that must be made to the plans. Any required changes or corrections must be made, and the plans resubmitted to Landlord. d. Exception to Landlord's Approval. The following items do not require submission to, and approval by, Landlord: i. Minor repairs and alterations necessary to maintain existing structures and improvements in a useful state of repair and operations. ii. Changes and alterations required by an authorized public official with authority or jurisdiction over the buildings or improvements, to comply with legal requirements. e. Effect of Approval. Landlord's approval does not constitute approval of the architectural or engineering design, and Landlord, by approving the plans and specifications, assumes no liability or responsibility for the architectural or engineering design or for any defect in any building or improvement constructed from the plans or specifications. § 5.04. Ownership of Buildings, Improvements, and Fixtures. Any buildings, improvements, additions, alterations, and fixtures (except furniture and trade fixtures) constructed, placed or maintained on any part of the Leased Premises during the term are and will be considered part of the real property of the Premises and must remain on the Premises and become Landlord's Property when the Lease terminates. § 5.05. Right to Remove Personal Property; Fixtures. Tenant may, at any time while it occupies the Premises, or within a reasonable time thereafter, not to exceed ninety (90) days, remove personal property, furniture, machinery, equipment, or other trade fixtures owned or placed by Tenant, its subtenants or licensees, in, under, or on the Premises, or acquired by Tenant, whether before or during the Primary Term or any extension thereof. Tenant must, within ten business days of any such removal, repair any damage to any buildings or improvements on the Premises resulting from the removal. Any such items not removed by the ninetieth (90`") day after date on which the Lease terminates or expires, will become Landlord's property on as of the ninety-first (91St) day after the Lease tettiiination/expiration date. Lease Between the City of Fort Worth and Hip Pocket Theatre Page 5 of 17 ARTICLE 6. TAXES § 6.01. Payment by Tenant. In addition to the rent and other obligations specified in Article 4, Tenant will pay and discharge all taxes, general and special assessments, and other charges of any kind levied on or assessed against the Premises and all interest in the Premises and all improvements and other property on them during the Teiiii and any extension, whether belonging to Landlord or to Tenant. Tenant will pay all the taxes, charges, and assessments directly to the public officer charged with their collection before they become delinquent, AND TENANT WILL INDEMNIFY LANDLORD AND HOLD IT HARMLESS FROM ALL SUCH TAXES, CHARGES, AND ASSESSSMENTS. TENANT MAY, IN GOOD FAITH AT ITS OWN EXPENSE (AND IN ITS OWN NAME) CONTEST ANY SUCH TAXES, CHARGES AND ASSESSMENTS BUT MUST PAY THE CONTESTED AMOUNT, PLUS ANY PENALTIES AND INTEREST IMPOSED, IF AND WHEN FINALLY DETERMINED TO BE DUE. ARTICLE 7. UTILITIES § 7.01. Payment by Tenant. Tenant will pay or cause to be paid all charges (including any deposits or connection fees) for water, heat, gas, electricity, sewer, internet, telecommunications, and all other utilities used or needed to be constructed to serve the Premises throughout the Primary Term and any extension thereof. ARTICLE 8. REPAIRS, MAINTENANCE, AND RESTORATION § 8.01. Tenant's Duty to Maintain and Repair. At all times during the Primary Term and any extension thereof, Tenant will, at Tenant's own expense, ensure all buildings and improvements erected on the Premises are kept and maintained in a good state of appearance and repair. § 8.02. Damage or Destruction. If any building or improvement constructed on the Premises is substantially damaged or destroyed by fire or any other casualty, Tenant must, within ninety (90) days from the date of the damage or destruction, begin to repair, reconstruct, or replace the damaged or destroyed building or improvement and pursue the repair, reconstruction, or replacement with reasonable diligence so as to restore the building to substantially the condition it was in before the casualty. But if beginning or completing this restoration is prevented or delayed by war, civil commotion, acts of God, strikes, governmental restrictions, or regulations, or interferences, fire or other casualty, or any other reason beyond Tenant's control, whether similar to any or those enumerated or not, the time for beginning or completing the restoration (or both) will automatically be extended for the period of such delay. ARTICLE 9. MECHANICS' LIENS § 9.01. Mechanic's Liens. Tenant will not cause or pettnit any mechanic's liens or other liens to be filed against the fee of the Premises or against Tenant's leasehold interest in the land or against any buildings or improvements on the Premises by reason of any work, labor, services, or Lease Between the City of Fort Worth and Hip Pocket Theatre Page 6 of 17 materials supplied or claimed to have been supplied to Tenant or anyone holding the Premises or any part of them through or under Tenant. If such a mechanic's lien or materialman's lien is recorded against the fee, leasehold, or any buildings or improvements on the Premises, Tenant must either cause it to be removed or, if Tenant in good faith wishes to contest the lien, take timely action to do so, at Tenant's sole expense. IF TENANT CONTESTS THE LIEN, TENANT WILL INDEMNIFY LANDLORD AND HOLD IT HARMLESS FROM ALL LIABILITY FOR DAMAGES OCCASIONED BY THE LIEN OR THE LIEN CONTEST AND WILL, IN THE EVENT OF A JUDGMENT OF FORECLOSURE ON THE LIEN, CAUSE THE LIEN TO BE DISCHARGED AND REMOVED BEFORE THE JUDGMENT IS EXECUTED. ARTICLE 10. INDEMNIFICATION AND INSURANCE § 10.01 IMDEMNITY. TENANT SHALL BE IN EXCLUSIVE CONTROL OF THE PREMISES, AND LANDLORD SHALL NOT HAVE ANY LIABILITY TO TENANT OR ANY THIRD PARTY IN CONNECTION WITH THE PREMISES. LANDLORD IS NOT LIABLE FOR ANY LOSS, DAMAGE, OR INJURY OR ANY KIND TO ANY PERSON OR PROPERTY ARISING FROM ANY USE OF THE PREMISES (OR ANY PART OF THEM), OR CAUSED BY ANY DEFECT IN ANY BUILDING, STRUCTURE, IMPROVEMENT, EQUIPMENT, OR FACILITY ON THE PREMISES OR CAUSED BY OR ARISING FROM ANY ACT OR OMISSION OF TENANT, OR ANY OF ITS AGENTS, EMPLOYEES, LICENSEES, OR INVITEES, OR BY OR FROM ANY ACCIDENT, FIRE, OR OTHER CASUALTY ON THE LAND, OR BROUGHT ABOUT BY TENANT'S FAILURE TO MAINTAIN THE PREMISES IN SAFE CONDITION. TENANT SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE LANDLORD, AND LANDLORD'S OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST SUCH LOSS, DAMAGE, INJURY, CLAIMS, AND ATTORNEYS FEES INCURRED IN THE DEFENSE THEREOF, EVEN IN THE EVENT SUCH LOSS, DAMAGE, INJURY OR CLAIM RESULTING FROM THE ALLEGED NEGLIGENCE OF THE LANDLORD, ITS OFFICERS, AGENTS, AND EMPLOYEES OR OTHERWISE. UNDER NO CIRCUMSTANCES WILL LANDLORD EVER BE LIABLE UNDER THIS LEASE FOR CONSEQUENTIAL OR SPECIAL DAMAGES. THIS INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION, OR BENEFITS PAYABLE UNDER INSURANCE POLICIES, WORKERS COMPENSATION ACTS, DISABILITY BENEFITS ACTS, OR OTHER EMPLOYEES' BENEFIT ACTS. THE PROVISIONS OF THIS SECTION APPLY TO ALL ACTIVITIES OF TENANT WITH RESPOECT TO THIS LEASE, WHETHER OCCURRING DURING ANY OCCUPANCY OR CONSTRUCTION BY TENANT. § 10.02. WAIVER OF LIABILITY. TENANT WAIVES ALL CLAIMS AGAINST INDEMNITEES FOR INJURY TO OR DEATH OF PERSONS OR FOR ANY LOSS OF OR DAMAGE TO PROPERTY OF TENANT, ITS EMPLOYEE, AGENTS, CUSTOMERS, OR INVITEES REGARDLESS OF WHETHER THE LOSS OR DAMAGE IS DUE TO CASUALTY, THEFT, OR ANY OTHER CAUSE. ALL PERSONAL PROPERTY ON THE Lease Between the City of Fort Worth and Hip Pocket Theatre Page 7 of 17 PREMISES IS AT THE RISK OF TENANT ONLY, AND TENANT WAIVES ALL CLAIMS AGAIST INDEMNITEES FOR ANY DAMAGE TO OR THEFT OF PERSONAL PROPERTY ON THE PREMISES. § 10.03. Insurance Required Related to Construction Tenant shall require the following lines of insurance and limits of coverage of contractors(s) and professionals during the development, design, and construction of improvements on the Premises. In addition, Tenant shall require its contractor(s) and/or professionals to name the Landlord, its officers, agents, and employees as additional insureds on relevant policies and obtain such coverage through insurance companies admitted or approved to issue the coverage in the State of Texas and having an AM Best rating of A: VII or better. Landlord shall have no responsibility for any costs associated with the required insurance. 10.03.1. Worker's Compensation and Business Auto Tenant shall require its contractor(s) to obtain and maintain statutory worker's compensation insurance and business automobile liability insurance ($1,000,000 limit) during any construction work. Tenant shall require its contractor(s) to cover its subcontractor on its (their) policies or shall require the subcontractor(s) to obtain and maintain statutory worker's compensation coverage and business automobile liability insurance ($1,000,000 limit). 10.03.2. Professional Liability Insurance Tenant shall require any architects and/or engineers providing professional services in the development, design, and/or construction management of improvements on the Premises to obtain and/or maintain professional liability insurance at a limit of not less than $1,000,000. Coverage underwritten on a claims -made basis shall include a retroactive date to be coincident with or prior to the date of construction. The certificate of insurance shall state both the retroactive date and that the coverage is claims -made. The policy shall be maintained in force for a minimum two (2) year period subsequent to the term of the respective project. 10.03.3. Commercial General Liability Tenant shall require its contractor(s) to obtain commercial general liability insurance at a limit of not less than $1,000,000 per occurrence with a $2,000,000 aggregate. 10.03.4. Builder's Risk Tenant shall require construction contractor to purchase and maintain a Builder's Risk policy with a company or companies lawfully authorized to do business in the State of Texas and with such property insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of the initial construction cost, plus the value of subsequent Lease Between the City of Fort Worth and Hip Pocket Theatre Page 8 of 17 construction modifications and cost of materials supplied or installed by others, comprising total value for the entire construction project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Agreement or otherwise agreed in writing by all persons and entities who are beneficiates of such insurance (including the Landlord), until final payment has been made or until no person or entity other than the Landlord has an insurable interest in the property. This insurance shall include interests of the Landlord, the Tenant, construction manager, contractors, and subcontractors. Property insurance shall be on an "all-risk" or equivalent policy form and shall include, without limitations, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplications of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstottu, falsework, testing, and startup, temporary buildings and debris removal, including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for construction manager's and contractor's services and expenses required as a result of such insured loss. § 10.04. Insured Required Related to On -Going Occupancy and Use of the Premises Insurance Tenant shall provide and maintain a Certificate of Insurance documenting the following insurance limits for the entire Primary Term of this Lease and any extension thereof: Commercial General Liability Insurance Limits of Coverage $1,000,000.00 per occurrence $2,000,000.00 Aggregate Worker's Compensation Workers Compensation Statutory Limits Insurance (only applicable to employees of Tenant) Employer's Liability $100,000.00 per accident/ occurrence $1,000,000.00 disease per each employee $500,000.00 disease/employee limit Liquor Liability Tenant shall cause to remain in effect during the Primary Term of the Lease and any extension thereof, liquor liability insurance coverage for bodily injury or property damage for which the Tenant may be held liable. Minimum limit $1,000,000 per occurrence $2,000,000 aggregate Lease Between the City of Fort Worth and Hip Pocket Theatre Page 9 of 17 or Auto Liability $1,000,000.00 each accident or a combined single limit basis; $250,000.00 property damage and $500,000.00 per person per occurrence This shall be business auto to cover any auto owned, non -owned or hired. 10.04.1 Building and Improvements At all times during the Primary Term and any extension thereof, Tenant shall maintain commercial all-risk property insurance on all buildings and other improvements located or being constructed on the Premises at not less than eighty percent (80%) of the replacement cost of such improvements. Tenant shall pay all costs for such insurance and shall be responsible for any deductible required. The insurance policy or policies must name both the Landlord and Tenant as named insured and may provide that any loss of $100,000 or less will be payable solely to Tenant for restoration of the improvements. Any loss over $100,000 will be made payable jointly to the Landlord and Tenant, but Landlord shall promptly allow the release of insurance proceeds to enable Tenant to meet its repair obligations in Section 8.02 above. § 10.05. Certificates of Insurance • The Landlord, its Officers, Agents, Employees, and Volunteers shall be named, as its interest shall appear, as Loss Payee and as Additional Insured. Exception: the additional insured requirement does not apply to Workers' Compensation policies. • Any insurance required under this Lease must be written so that the policy shall not be cancelled, limited in scope or coverage, or non -renewed, until after thirty days (30) prior written notice has been given to the Landlord. • All required policies of insurance must be written so that to provide a waiver of rights of recovery (subrogation) in favor of the Landlord. • The insurers for all policies must be licensed/ approved to do business in the State of Texas. Except for Workers' Compensation, all insurers must have a minimum rating of A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Tenant's Risk Management division. If the ratings are below that required, written approval of Risk Management is required. • Such insurance policies shall be primary, without right of contribution and not subject to any offset by any other insurance carried by Landlord. • If insurance policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance for any differences is required. Excess Liability shall follow form of the primary coverage. Lease Between the City of Fort Worth and Hip Pocket Theatre Page 10 of 17 • Unless otherwise stated, all required insurance shall be written on the "occurrence basis". If coverage is underwritten on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement and the certificate of insurance shall state that the coverage is claims -made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for five (5) years following completion of the service provided under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the Landlord shall evidence such insurance coverage. • The deductible or self -insured retention (SIR) affecting required insurance coverage shall be acceptable to and approved in writing by the Risk Manager of the City of Fort Worth in regards to asset value and stockholders' equity. In lieu of traditional insurance, alternative coverage maintained through insurance pools or risk retention groups, must also be approved by the City's Risk Manager. • The Landlord, at its sole discretion, reserves the right to review the insurance requirements and to make reasonable adjustments to insurance coverages and their limits when deemed necessary and prudent by the Landlord based upon changes in statutory law, court decision, or claims history of the industry as well as of the Tenant. In the event the Landlord requires the insurance limits to be increased or changes in policy categories or types of coverage, the Landlord shall provide written notice to the Tenant. The Tenant will have ninety days from the date of the notice to comply with the additional requirements. • The Landlord shall be entitled, upon request and without expense, to receive copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modifications of particular policy terms, conditions, limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of party or the underwriter on any such policies. ARTICLE 11. ASSIGNMENT AND SUBLEASE § 11.01. Assignment and Sublease. Tenant may not sell or assign its leasehold estate, or any portion of it, without the prior written approval of the Landlord. ARTICLE 12. MISCELLANEOUS PROVISIONS § 12.01. Cutting of Trees, Brush, and Grasses. Tenant has represented that trees, brush, or grasses may need to be cut on the Premises. Before cutting any trees or brush on the Premises, Tenant shall physically flag and provide to Landlord a diagram of the general area of trimming and clearing on the Premises. This diagram shall show the general manner of clearing. Once Tenant provides Landlord with the diagram, Tenant shall obtain Landlord's written consent prior to beginning any clearing or trimming on the Premises. Tenant shall contact Nita Shinsky, Lake Worth Coordinator, at 817-392-8053 to make arrangements for the inspection of the Premises prior to any trimming or clearing. Tenant shall remove all cuttings and trimmings Lease Between the City of Fort Worth and Hip Pocket Theatre Page 11 of 17 The Tenant shall be responsible for all costs associated with the cutting of trees, brush, and grasses and removal. § 12.02. Food Sold or Provided on the Premises. If food will be served on the Premises, Tenant shall ensure that all food vendors and food handlers are in compliance with State and City of Fort Worth regulations. In addition if food is served on the Premises, Landlord shall be named as an additional insured on all food vendors' insurance policies. § 12.03 Alcoholic Beverages. Alcoholic beverage sales are permitted on the Premises, subject to compliance with the tettiis of this provision and all applicable laws and regulations. Tenant shall comply with all state, federal, and local laws and regulations regarding the sale and consumption of alcoholic beverages on the Premises. If Landlord discovers that Tenant has not complied with all state, federal, and local laws and regulations or that Tenant has failed to obtain and maintain insurance required under this Lease, Tenant acknowledges and agrees that Landlord may terminate the Lease and immediately proceed to escort all persons off the Premises and that TENANT AGREES TO INDEMNIFY LANDLORD AND HOLD LANDLORD HARMLESS FOR ANY CLAIM, SUIT, OR CAUSE OF ACTION THAT RESULTS IN THE LEASE BEING TERMINATED AS A RESULT OF TENANT'S FAILURE TO COMPLY WITH THIS SECTION. § 12.04. Restroom Facilities. Tenant shall comply with all federal, state, and local laws regarding providing restroom facilities. Tenant shall provide sufficient restrooms for its patrons and guests. § 12.05. Solid Waste. Tenant shall be responsible for the proper collection, storage, and disposal of solid waste on the Premises. Tenant shall comply with all federal, state, and local laws and regulations regarding collection, storage, and disposal of solid waste on the Premises. ARTICLE 13. TERMINATION AND REMEDIES § 13.01. Termination on Default. If Tenant defaults in performing any covenant or term of this Lease and does not correct the default within thirty (30) days after receipt of written notice from Landlord to Tenant (or an additional reasonable period of Tenant is proceeding with diligence to cure the default), Landlord may declare this Lease and all rights and interest created by it terminated. If Landlord elects to terminate, this Lease will cease as if the day of the Landlord's election were the day originally fixed in the Lease for its expiration. § 13.02. Termination Without Cause. The Landlord may terminate this Lease with or without cause as of the end of the Primary Term by providing thirty (30) days' notice. § 13.03. Other Remedies. Any termination of this Lease as provided in this article will not relieve Tenant from paying any sum or sums due and payable to the Landlord under the Lease at the time of termination or any claim for damages then or previously accruing against Tenant under this Lease. Any such termination will not prevent Landlord from enforcing the payment of any such sum or sums or claim for damages by any remedy provided for by law, or from Lease Between the City of Fort Worth and Hip Pocket Theatre Page 12 of 17 recovering damages from Tenant for any default under the Lease. All Landlord's rights, options, and remedies under this Lease will be construed to be cumulative, and not one of them is exclusive of the other. Landlord may pursue any or all such remedies or any other remedy or relief provided by law, whether or not stated in this Lease. ARTICLE 14. NOTICES § 14.01. Notices. Any notice, demand, request, or other communication hereunder given or made by either party to the other shall be in writing and shall be deemed to be delivered whether actually received or not, when deposited in the United States mail, postage prepaid, certified or registered mail, return receipt requested, addressed to the parties hereto at the respective addresses set out below, or at such other address as they may hereafter specify by written notice so given. (a) If to Landlord: City Manager City of Fort Worth 200 Texas Street Fort Worth, TX 76102 Copy to: City Attorney City of Fort Worth 200 Texas Street Fort Worth, Texas 76102 (b) If to Tenant: Hip Pocket Theatre PO Box 136758 Fort Worth, TX 76136 ARTICLE 15. GENERAL PROVISIONS § 15.01. Right of Entry and Inspection. Tenant must permit Landlord or its agents, representatives, or employees to enter the Premises at any time for the purposes of (i) inspection; (ii) determining whether Tenant is complying with this Lease; (iii) maintaining repairing, or altering the Premises; or (iv) any other reasonable purpose. Tenant will schedule through the Landlord at least one annual Code Compliance inspection. This inspection should be scheduled with adequate time to correct any violations found prior to the first theater performance of the season. § 15.02. No Partnership or Joint Venture. The relationship between Landlord and Tenant is at all times solely that of landlord and tenant and may not be deemed a partnership or a joint venture. § 15.03. Force Majeure. If curing any default (other than failure to pay rent, insurance premiums, or ad valorem taxes) or perfottiting any other covenant or term is delayed by reason of war, civil commotion, act of God, governmental restrictions, regulations, or interference, fire or other casualty, or any other circumstances beyond Tenant's control or that of the party obligated or permitted under this Lease to do or perfottit the term or covenant, regardless of Lease Between the City of Fort Worth and Hip Pocket Theatre Page 13 of 17 whether the circumstance is similar to any of those enumerated or not, each party so delayed is excused from performance during the delay period. § 15.04. Multiples; Electronic Signature. That this Lease may be executed in several counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. A signature received via facsimile or electronically via email shall be as legally binding for all purposes as an original signature. § 15.05. Governing Law; Venue. This Lease and the relationship created hereby shall be governed by the laws of the State of Texas. Venue for any action brought to interpret or enforce the terms of the Lease or for any breach shall be in Tarrant County, Texas. § 15.06. Entire Agreement. This Lease shall constitute the entire agreement of the Landlord and Tenant and shall supersede any prior agreements, either oral or written, pertaining to the Premises. CITY OF FORT WORTH POCKET THEATRE, INC. D/B/A HIP POCKET THEATRE ?.2 Ita. • r, a Bo oghdfilft (Se P (..` 2023 CDT) Assistant City Manager CONTRACT COMPLIANCE MANAGER By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name: Nita Shinsky Title: Land Agent Date: 9/12/2023 APPROVED AS TO FORM AND LEGALITY: ) Assistant City Attorney 7,0°"°-..9-e2. ,-, .0 ,v-s•o° ATTEST: gal 8x0 o . . g City Secretary Contract Authorization: M&C 23-0427 Lease Between the City of Fort Worth and Hip Pocket Theatre Page 14 of 17 OFFICIAL RECORD CITY SECRET RY FT. VORTH, TX ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF TARARNT § On this 18th day of September , 2023, the before undersigned, a Notary Public, duly commissioned, qualified and acting within and for the said County of State, appeared in person the within named Dana Burghdoff to me personally known, who stated the he was an Assistant City Manager for the City of Fort Worth, Texas, and was duly authorized in his respective capacity to execute the foregoing instrument and acknowledged that he had so signed, executed and delivered said instrument for the considerations, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand an official seal this l8th day of SEptember , 2023. SELENA ALA Notary Public STATE OF TEXAS Notary I.D. 132422528 My Comm. Exp. Mar. 31 2024 STATE OF TEXAS § COUNTY OF TARARNT § .1[Ena Ala (Sp 1.0„ 2023 12,47 CID111 NotaryPublic Printed Name of Notary: Selena Ala My Commission Expires: 3-31-2024 ACKNOWLEDGMENT BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared eil)oea,/7/4 t-1,-(16,64.14.", known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed. IN ESTIMONY WHEREOF, I have hereunto set my hand and official seal this /day of ei,st , 2023. a_ ..+11, 4 RICHARD HARTMANN Notary Public, State of Texas 0 Notary ID 13151564-4 My Commission Exp, 04-03-2026 Ilmeemememermirmipmep.w...imumemer.• Lease Between the City of Fort Worth and Hip Pocket Theatre Page 15 of 17 Notary Public, State of Texas Exhibit A - Leased Premises .,g NOTE: This exhibit depicts the area for the proposed lease site, for 'Right of Entry' and does not represent a boundary survey. ..e.r.pel• rf rp•••••11m.•••40, Lease Between the City of Fort Worth and Hip Pocket Theatre DyD 1 M r‘f 1 Exhibit B Mandatory Improvements On or before November 30, 2023, Tenant shall ensure completion of all of the following improvements on the Premises: New entrance gate and fencing Repairs to concession and restroom buildings Solar lighting upgrades in the parking lots Grading entrance drive and public parking lot Upgrading the walking path to the theatre entrance On completion, title to all such improvements shall vest with the Landlord. Lease Between the City of Fort Worth and Hip Pocket Theatre Page 16 of 17 FORTWORTII IL Create New From This M&C ............................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................... DATE: 5/23/2023 REFERENCE NO.: **M&C 23- 0427 LOG NAME: 212022HIPPOCKET CODE: L TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: (CD 7 / Future CD 7) Authorize an Amended and Restated Lease Agreement with Existing Tenant, Pocket Theatre, Inc. d/b/a Hip Pocket Theatre, for an Eleven Acre Tract of Land Located at 1950 Silver Creek Road, 76108 in West Fort Worth for Nominal Consideration and Find that Execution of the Lease Serves a Public Purpose RECOMMENDATION: It is recommended that the City Council: 1. Authorize the City Manager to enter into an amended and restated lease agreement with the existing tenant, Pocket Theatre, Inc., d/b/a Hip Pocket Theatre, for an eleven -acre tract of land located at 1950 Silver Creek Road, 76108 in West Fort Worth; and 2. Find that execution of the lease in accordance with the specified terms serves a public purpose and that adequate controls exist to ensure the public purpose is met. DISCUSSION: The purpose of this Mayor and Council Communication (M&C) is to authorize an amended and restated lease agreement between the City of Fort Worth (City) and Pocket Theatre, Inc.,d/b/a Hip Pocket Theatre (Hip Pocket), for the City -owned property currently utilized as the Hip Pocket Theatre. Since 2004, Hip Pocket has leased an 11.25-acre City -owned tract with partial frontage on Sliver Creek Road located near Lake Worth for use as an outdoor theater facility (M&Cs G-14394, L-15779; City Secretary Contract Nos. 30117, 46805). For most of this period, Hip Pocket has been required to make annual lease payments of $14,702.00. Because of the pandemic, Hip Pocket was unable to operate in 2020 and subject to limited operations in 2021. As a result, the organization could not generate income to cover expenses, and the lease payments for 2020 and 2021 were deferred. In connection with the upcoming lease renewal, City and Hip Pocket staff engaged in discussions regarding a possible restructuring of the lease with an eye toward enhancing the organization's long- term viability while facilitating repayment of the unpaid lease balance. Because conversations have been ongoing and the new lease has not yet been executed, the annual lease payment for 2022 has not yet been made either. Pocket Theatre, Inc. is a Texas Nonprofit Corporation that engages in the production of live outdoor theatrical performances. For other City -owned theater facilities that are operated by non-profit organizations, the required monetary lease payment is generally a nominal amount because the organizations provide a public benefit by expanding the cultural offerings in the City, with the tenant also obligated to make improvements to and/or maintain the leased facilities. For example, the Casa Manana lease includes a $1,200.00 annual lease payment (City Secretary Contract No. 19139, as amended and addended), and the Rose Marine lease includes a $1.00 annual lease payment (City Secretary Contract No. 46908, as renewed) with the tenants in both instances subject to certain facilities obligations as well. To bring this lease in line with those other similar facilities, the staff is proposing that the outstanding balance for 2020-2022 ($30,404.00) be offset via a combination of cash payment and facility improvements with a total combined value of $16,500.00 and that, going forward, a more modest lease payment be imposed. The following terms are proposed for the amended and restated lease: Initial term Six years (2022-2027) A cash payment of $2,000.00 is due upon execution of the renewal (the proposed 2022 renewal rate, along with the 2023 renewal rate) Mandatory improvements to be completed by November 30, 2023, with estimated cost/value: New entrance gate and fencing Repairs to concession and restroom buildings Solar lighting upgrades in the parking lots Grading entrance drive and public parking lot Upgrading the walking path to the theatre entrance TOTAL OF THESE IMPROVEMENTS $6,000.00 $3,000.00 $2,000.00 $2,000.00 $1,500.00 $14,500.00 If Mandatory Improvements are not made by November 30, 2023, the lease obligation during the initial term will be cash payments of $5,067.34 (1/6 of the $30,404.00 in prior lease obligation plus $100.00 for ongoing/new use while past amounts are being caught up). Hip Pocket will be obligated to maintain the property and improvements at its sole cost and expense (and subject to any specifically required standards spelled out in the lease). Renewals Five one-year renewal options The lease monetary rate during each renewal option will be $1,000.00 a year, due in one single payment on October 1 of each year. Hip Pocket will be obligated to maintain the property and improvements at its sole cost and expense (and subject to any specifically required standards spelled out in the lease). The amended and restated lease reflects updated terms and conditions and requires that any permanent improvements constructed by Hip Pocket during the term of the lease will become the property of the City of Fort Worth upon the termination of the lease. In approving this M&C, the City Council will be finding that execution of the lease subject to the terms outlined above serves a public purpose by providing additional opportunities for members of the public to experience the performing arts in Fort Worth and that adequate controls are in place to ensure the lease serves its public purpose — i.e., the reduced lease rate is subject to the facility continuing to be operated as a theater that is open to the public. The property is located in COUNCIL DISTRICT 7 / FUTURE COUNCIL DISTRICT 7 FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that upon approval of the above recommendations and execution of the lease agreement, funds will be deposited into the General Fund. The Property Managment Department (and Financial Management Services) is responsible for the collection and deposit of funds due to the City. TO Fund FROM ............................. Fund Department ID Department ID Account Project ID Account Project ID Program Program Activity Activity Budget Year....... Budget Year Submitted for City Manager's Office by: Dana Burghdoff (8018) Reference # (Chartfield. 2) Reference # (Ch rtf, eld 2) Originating Department Head: Steve Cooke (5134) Additional Information Contact: ATTACHMENTS 1295.pdf (CFW Internal) 212022HIPPOCKET M AND C MAP.pdf (Public) FID Table.XLSX (CFW Internal) Nita Shinsky (8053) Mark Brown (5197) CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos. 1 - 4 and 6 if there are interested parties. Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 2022-943943 Date Filed: 10/12/2022 Date Acknowledged: 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Pocket Theatre, Inc. dba Hip Pocket Theatre Fort Worth, TX United States 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Fort Worth 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 212022HIPPOCKET Property Lease for production of outdoor theatrical performances 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary 5 Check only if there is NO Interested Party. 6 UNSWORN DECLARATION My name is tiZ WC -WTI FA ti CI IV/Xi , and my date of birth is , TV-. a My address is ‘'S )'-.1;1 •#1 • -0...e.c.‘rt-r- ,a.../ a , /oft„Wb '7 iii. I ca. , (street) (city) (state) I declare under penalty of perjury that the foregoing is true and correct, Executed in I .4.41-0.-aratr— County, State of ‘ le;LA.c on the 1 (zip code) say of (month) (month) . (country) , . (year) ignatur authorized . (Declarant) gent of contracting business entity Forms provided by Texas Ethics Commission www.ethics,state.tx.us Version V3.5.1.8b4250f1