HomeMy WebLinkAboutContract 19160 RESTAURANT LEASE CIT`( SECRET A
CONT RAC f No.
is r staurant lease (this "Lease") is made this 20/7day of
1992, by and between Fort Worth Botanical
soc:revy,, a 6Texas non-profit corporation, whose address is 3220
Botanic Garden Blvd. , Fort Worth, Texas 76107 ("Lessor") and Robert
Vivion, d/b/a Catering by Robert, whose address is 215 University
Drive, Fort Worth, Texas 76107 ("Lessee") .
RECITALS
23
WHEREAS Lessor has entered into a lease agreement with the
City of Fort Worth with respect to certain property located within
the Fort Worth Botanic Garden; and
WHEREAS Lessor desires that a restaurant be maintained and
operated within the Botanic Garden; and
WHEREAS Lessee wishes to enter into a sublease with Lessor 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, Lessor and Lessee agree as follows:
ARTICLE I.
DEMISE
1.01 Leased Premises. Lessor hereby leases to Lessee and
Lessee hereby rents from Lessor upon the terms and subject to the
conditions set forth in this lease, 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.
1.02 Quiet Enjoyment. Lessor warrants that, during the term
of this lease, so long as Lessee is not in default hereunder,
Lessee 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 lease.
Of FICK RECORD �
CM SECRETARY
FT. WORTH, TEX.
40& Aft
ARTICLE II.
TERM
2.01 Initial Term. The initial term of this lease shall be
for a period of six (6) months commencing on a date mutually agreed
between Lessor and Lessee but no more than ten (10) days after the
completion of the improvements to be made to the leased premises
by Lessor as set forth under Section 13.01.
2.02 Renewal Term. Upon the expiration of the initial term,
and unless terminated by either party as set forth below, this
lease shall be renewed for an additional term of two (2) 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 lease upon the expiration of the initial term. Upon the
expiration of the renewal term, this lease shall terminate unless
extended in writing by mutual agreement of the parties. The
initial term, the renewal term and any negotiated extensions are
hereinafter collectively referred to as the "Term" of this lease.
2.03 Early Termination. During the initial term of this
lease, either party may terminate this lease upon thirty (30) days
written notice to the other party. During the renewal term of this
lease, either party may terminate this lease upon sixty (60) days
written notice to the other party.
2.04 Termination Upon Lossi, of Leasehold. Notwithstanding
anything else herein to the contrary, in the event that Lessor's
lease with the City of Fort Worth is terminated or not renewed, for
whatever reason, during the term of this lease, this lease shall
terminate immediately upon the termination or expiration of the
lease between Lessor and the City of Fort Worth.
ARTICLE III.
RENTAL
3.01 Rentals Payable. Lessee covenants and agrees to pay to
Lessor each month as rental for the leased premises the greater of
the following:
(a) A monthly base rental of three hundred dollars ($300.00)
(the "Base Rent") ; or
(b) A monthly percentage renal of five percent (5%) of gross
sales for the preceding month (the "Percentage Rent") .
Lessor agrees to notify Lessee of the amount of the base rent prior
to the commencement date of this lease.
3.02 Gross sales Defined. The term "gross sales" as used in
o '
this lease means the actual total sales of Lessee, for cash, check,
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FT. WORTH, TAX.
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or on credit terms, from all sales of food, alcoholic and non-
alcoholic beverages, merchandise, services and entertainment,
including, without limitation:
(a) Sales from all sources derived from business conducted
on the leased premises or from catering within the
Botanic Gardens;
(b) All sales charged with Lessee on credit cards or
otherwise, regardless of the collection or collectability
thereof and without reduction for bad debts, collectable
accounts, refunds, or cost of collection;
(c) Orders received at the leased premises but filled
elsewhere, if allowed by Lessor; and
(d) All other receipts from all business conducted by Lessee
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 Lessee
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 Lessee received payment.
3.03 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 Lessee or collected from its customers;
(b) The amount of gratuities actually paid to employees.
3.04 Payment. Lessee agrees to make all payments of base
rent for each month of the lease term to Lessor, at Lessor's
address, on or before the first day of the month. If this lease
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
lease shall be made, with respect to each month's gross receipts,
on or before the 15th day of the following month, and shall be
accompanied by the monthly statement required in Section 4.01
below.
OFFICIAL RECORD
work/wko/botanic.con(42092) 3 CITY SECRETARY
FT. WORTH, TEX.
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ARTICLE IV.
ACCOUNTING
4.01 Recordkeeping. Lessee covenants and agrees that Lessee
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 Lessor of
any amounts due as rental, Lessee shall keep, retain and preserve
for at least three (3) years after the termination of this lease,
a general ledger, all sales slips, cash register tape readings,
sale 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 15th
day of the month, Lessee shall furnish to Lessor a statement
setting forth the amount of gross sales by Lessee for the preceding
month. Such statements shall contain such itemization as Lessor
shall reasonably require.
4.03 Periodic Audits. Either party may, upon reasonable
notice to the other, request periodic audits throughout the term
of the lease. Upon receipt of such notice, Lessee agrees to make
its books and other records available to Lessor for purposes of
such audit. The party requesting such a periodic audit shall be
responsible for the cost of the audit.
ARTICLE V.
USE OF PREMISES AND OPERATIONAL COVENANTS
5.01 Nature of Business and Services Provided by Lessee.
Throughout the term of this lease, Lessee agrees to continuously
occupy the leased premises for the purposes of operating a
restaurant thereon (the "Restaurant") . Lessee 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 lease.
5.02 Restaurant Lessee shall Operate and Maintain the
Restaurant or Full Lunch Service. At a minimum, Lessee shall
provide restaurant food service continuously during the hours of
11: 00 a.m. to 4: 00 p.m. , Tuesday through Saturday, and 12 :00 noon
to 4: 00 p.m. on Sunday, including holidays, except for Thanksgiving
Day, Christmas Day, and New Year's Day. Lessee may in its
discretion provide extended hours of food service in excess of
these minimums, provided, however, that said hours of operation
shall not conflict with the hours of operation of the; Botanic CORD
Garden, as established by the City of Fort Worth from time to time.
e- t.
work/wko/botanic.con(42092) 4 � � 5 �tTARY
FT. NORTH, TEX.
Lessee 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.
5.03 Alcoholic Beverage Service. Lessee shall obtain, at its
sole cost, all necessary permits and licenses required for the sale
of alcoholic beverages on the leased premises and Lessee covenants
and agrees that said permits and licenses will remain current and
in effect throughout the term of this lease. Lessee and Lessor
hereby mutually agree that they shall not at any time during the
term of this lease 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 violates any
such laws, rules or regulations. Further, Lessee 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 premises to supervise employees who serve
alcohol. Lessee shall maintain documentation verifying completion
of such a course by each manager.
5.04 Menus, Food and Beverage. Lessee shall provide food and
beverage service in accordance with such menus and other food and
beverage requirements as shall be acceptable to Lessor and Lessee.
Lessee may change menu prices at its sole discretion. Lessor and
Lessee must mutually agree to all other changes to the overall menu
concept and food and beverage requirement and presentation;
provided Lessor'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 Lessor, Lessee
agrees to provide catering for special events on the leased
premises, or elsewhere within the Botanic Garden, within the normal
operating hours of the Botanic Garden, upon ten (10) days notice,
and subject to such assured minimum sales volume as Lessee may
reasonably require.
5.06 Equipment and Furnishings. In addition to such
fixtures, equipment and furnishings as Lessor may provide pursuant
to Section 13 .01, Lessor shall supply the following food service
equipment and furnishings required to operate the restaurant:
furniture; refrigerator; food service equipment; decorations; and
eating utensils, glasses, and dishes. Lessee shall provide a
dishwasher, ice machine, 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, which items are specifically designated on the
inventory attached hereto as Attachment A. Lessee shall replace
or replenish such items listed in the inventory with items of the
same kind if reasonably available (or with items of like kind and
quality if not) on an annual basis, beginning with the first
anniversary of this lease, and upon termination of this lease, or
sooner if needed for the proper operation of Lessee's restaurant
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business. Lessee shall deposit with Lessor the sum of Five Hundred
Dollars ($500. 00) to guarantee the replacement of the inventory as
provided above and shall immediately restore said deposit to its
original balance upon receipt of notice from Lessor that funds have
been spent to meet Lessee's obligations herein.
5.07 Promotion. Lessee shall have the right to promote the
restaurant through such media and in such formats as Lessor may
approve. Lessor shall have the right to promote the restaurant in
any manner it deems appropriate, but shall have no specific
obligation to do so.
5.08 Restrictive Covenants. Lessee hereby agrees and
covenants to refrain from the following:
(a) The use of any equipment which produces grease or would
require the installation of a Type I exhaust hood system;
(b) The use of any styrofoam products in food service or
storage;
(c) The catering of any food or service outside the Botanic
Garden from the leased premises or in the name of the
restaurant;
(d) Catering of event within the Botanic Garden without the
express approval or authorization of Lessor.
5.09 Rights Not Exclusive. Lessee understands and agrees
that it shall not have the exclusive right to provide food service
within the Botanic Garden, except within the confines of the leased
premises.
5.10 Compliance with Law. Lessee 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 Lessor or of the Fort Worth Botanic Garden, or that
might in any way conflict with any of the terms and conditions set
forth in the Concessionaire Agreement between Lessor 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. Lessee shall promptly upon demand reimburse
Lessor for any additional insurance premium charges for any such
policy or policies caused by reason of Lessee's failure to comply
with the provisions of this section. The leased premises and every
part thereof, and all areas to be maintained by Lessee hereunder,
shall be kept by Lessee in a clean, sanitary and wholesome
condition, free from any objectionable noise, odors or nuisances,
public or private, including, without limitation, infestations of
insects or rodents. Lessee, at its own expense, shall conform in
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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 rules,
orders, regulations, and requirements of the local Fire Rating
Bureau, Health Department, Alcoholic Beverage Control Board and any
other organization or governmental entities having jurisdiction
over Lessee's operations.
5. 11 Staff, Supplies, Etc. Lessee 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.
Lessee 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; Lessee 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.
Lessee 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 Operating Costs. Lessee 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 costs, utility costs and insurance premiums.
5.13 Signs. Lessee shall not paint or place any sign, light,
advertisement or awning in the Botanic Garden or on the leased
premises without the prior written consent of Lessor.
5.14 Pick-UR of Refuse and Restaurant Equipment. Lessee
shall not allow refuse, garbage or trash to accumulate in any area
serviced by Lessee pursuant to this lease, except in receptacles
designated by Lessor. All areas serviced by Lessee hereunder shall
be cleaned by Lessee in a timely manner. If Lessee fails to do so,
Lessor, after notifying Lessee of such conditions and giving Lessee
a reasonable opportunity to correct such conditions, shall have the
right, but not the obligation, to clean such areas and to remove
from such areas all refuse, garbage and trash and in such event
Lessee agrees to pay Lessor's actual cost of such cleaning and
removal. Lessor may at all times and from time to time review
Lessee's cleaning schedule in order to assure Lessee's proper
maintenance and cleaning of the area serviced by Lessee. Lessee
agrees to cooperate with Lessor in revising such schedule in a
mutually agreeable manner if such objective is not being met.
5.15 Deliveries. Lessor and Lessee 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. All delivery trucks
or other vehicles servicing the leased premises shall park or stand
only near service entrances.
work/wko/botanic.con(42092) 7
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ARTICLE VI.
RIGHTS OF LESSOR
6.01 Access. Lessor and its agents shall have the right to
enter the leased premises 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 Lessor may deem
necessary or desirable; however, to the extent possible, Lessor
will make entry for purposes of making alterations, repairs,
improvements or additions at times when Lessee is not open to the
public for business. In the event of an emergency endangering
persons or property in the leased premises, Lessor may, if
necessary under the circumstances, forcibly enter the leased
premises, without liability to Lessee for such forcible entry and
without affecting this lease.
ARTICLE VII.
FI%TURES, EQUIPMENT AND FURNITURE
7.01 Title to Property. All fixtures, equipment and
furniture supplied by Lessor and all replacements and
refurbishments thereof shall be and remain the sole property of
Lessor, and Lessee shall not be entitled to any payment therefor
upon the expiration or sooner termination of the term hereof.
Lessee 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 Lessor, if required.
7.02 Surrender. Upon expiration or sooner termination of
this lease, Lessee 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 either by Lessor or Lessee in or about the leased premises in
as good condition as when received or installed, except for
reasonable wear and tear.
ARTICLE VIII.
TRADE NAME
The Lessee shall operate the restaurant on the leased premises
during the term of this lease only under the trade name of "Rock
Springs Garden Restaurant" or such other trade name as shall be
agreed to by Lessor and Lessee. Lessee shall not use or occupy the
restaurant for any other trade name without Lessor's prior written
consent. Lessee shall not use the trade name "Rock Springs Garden
Restaurant" for any purpose or at any location not specified in
this lease. Upon the expiration or earlier termination of this
work/wko/botanic.con(42092) 8
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lease, Lessee agrees that the trade name "Rock Springs Garden
Restaurant" shall remain the sole property of Lessor.
ARTICLE IX.
PERMITS AND LICENSES
Lessee, at its sole cost and expense and in its name, shall
obtain and maintain all necessary alcoholic beverage licenses and
governmental permits required by any law, ordinance or regulation
of any governmental authority with jurisdiction over the operations
of tenant, pursuant to this lease. Prior to the commencement of
the term of hereof and annually thereafter, Lessee shall provide
to Lessor evidence of the receipt and renewal of each such license
or permit. Lessee shall not transfer, assign, pledge, hypothecate,
sublease or agree to transfer any such permit or license during the
term of this lease.
ARTICLE X.
TAXES
10.01 Personal Property Taxes. In each tax year during the
term, as additional rental, Lessee shall pay directly or reimburse
Lessor 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 owned by
Lessee and located in or about the leased premise.
10.02 Real Property Taxes. Lessor 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 Lessee's License Fees and Taxes. All separate license
of permit fees and business taxes, including sales taxes, imposed
or payable with respect to Lessee's interest and operations
hereunder shall at all times be kept current and in full force and
effect and shall be paid by Lessee when due.
ARTICLE XI.
UTILITIES
For each month during the term, as additional rental, Lessee
shall pay directly or reimburse Lessor for the full amount of any
and all utilities used upon the leased premises, including, but not
limited to electricity, water, and natural gas. The cost of said
utilities attributable to the leased premises shall be the total
work/wko/botanic.con(42092) 9
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monthly amount of utilities charged to the Rock Springs building
which is in excess of the average monthly utility bill at such
building during the three year period immediately preceding the
effective date of this lease.
ARTICLE XII.
INSURANCE
12.01 Commercial General Liability Insurance. Lessee shall
maintain at all times during the term of this lease a commercial
general liability insurance policy written by an insurer approved
by Lessor 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 other services to be provided by Lessee hereunder,
with a minimum primary coverage of $500, 000 per occurrence and with
a general aggregate and products aggregate of $1, 000, 000 each.
Lessor and the City of Fort Worth shall be named as additional
insureds in each such policy. The policy shall include Fire Legal
Liability coverage at the $50, 000 limit. The Deductible per
occurrence shall not exceed $1, 000.
12.02 Liquor Liability Insurance. Lessee shall maintain
liquor liability insurance written by an insurer approved by
Lessor, naming Lessor and the City of Fort Worth as additional
insureds, with minimum coverage of $500, 000 per occurrence and a
minimum aggregate of $500, 000 each.
12 .03 Workers' Compensation Insurance. Lessee shall maintain
Employer's Liability Insurance and statutory Workers ' Compensation
insurance.
12 .04 Notice of Cancellation. The failure of Lessee to keep
in full force and effect any insurance required by this lease shall
be deemed a breach of this lease. 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
Lessor and the City of Fort Worth.
ARTICLE XIII.
IMPROVEMENTS AND ALTERATIONS
13.01 Lessor's Improvements. Lessee accepts the premises and
improvements made by Lessor in their current condition and
acknowledges that they are suitable for its restaurant operations
as contemplated in this lease.
13.02 Lessee' s Improvements. Lessee shall make no
alterations, additions, changes or improvements to the leased
premises or any part thereof without Lessor's prior written
consent. Any alterations, additions or improvements installed by
work/wko/botanic.con(42092) 10
Lessee shall be in conformity with a valid building permit and
other permits or licenses as required by law, which shall obtained
by Lessee at Lessee's sole cost and expense. Copies of such
permits or licenses shall be furnished to Lessor before the work
is commenced. Lessor shall have no responsibility for alterations,
additions or improvements installed by Lessee. Any alterations,
additions or improvements installed by Lessee during the lease term
shall become the property of the Lessor upon the expiration or
earlier termination of this lease.
13.03 Liens. Lessee shall promptly pay all costs and charges
for all labor done or materials furnished for any work, repair,
maintenance, improvement, alteration or addition provided by or on
behalf of Lessee, and Lessee shall indemnify and hold Lessor 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, improvement, alteration or addition provided by or on
behalf of Lessee.
ARTICLE %IV.
MAINTENANCE AND REPAIRS
14.01 Lessee's Obligation. Lessee, at its sole cost and
expense, shall at all times keep, clean, maintain, repair, replace,
renew and restore the leased premises including, without
limitation, floor coverings, interior walls, furniture and
furnishings, food preparation areas, restrooms, appliances,
ceiling, doors, door frames, windows, entrances, signs, locks and
closing devices, except for normal wear and tear. Necessary
repairs and maintenance shall be done by Lessee 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 Lessee diligently pursues and completes the
repair.
14.02 Lessors Obligations. Lessor, 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.
Lessor shall also maintain the foundation, exterior walls, down
spouts, gutters and roof of the leased premises. Lessor shall not
be obligated to make any such repairs until after the expiration
of ten (10) days notice from Lessee to Lessor stating the need for
such repairs or maintenance, except for those repairs of an
emergency nature or creating a health hazard. If, Lessee
reasonably believes an imminent danger exists to public health or
safety, Lessee may make the necessary repairs to correct the
dangerous condition. In such case, Lessor shall promptly, upon
Lessee's demand, reimburse Lessee for any reasonable sum expended
in making such repairs. Lessor shall not be obligated to repair
any damage caused by the willful or negligent acts or omissions of
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Lessee or Lessee 's agents and employees, and Lessee shall be
responsible for repair of such damage.
ARTICLE %V.
DAMAGE AND DESTRUCTION
15.01 Casualty. If the leased premises are damaged by fire
or other insured casualty and insurance proceeds have been made
available therefor to Lessor, the damage shall be repaired by and
at the expense of Lessor within one hundred eighty (180) days after
the amount of insurance proceeds payable with respect to such
casualty have been made available to Lessor, subject to force
majeure, to substantiate the condition existing immediately prior
to such casualty. Lessor shall have no obligation or liability to
Lessee 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 Lessor to Terminate. Notwithstanding any
other provision of this lease, if in the sole judgment of Lessor,
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
Lessor shall within a period not to exceed one hundred twenty (120)
days after the insurance proceeds payable with respect to such
occurrence of such damage or destruction have been made available
to Lessor, notify Lessee of Lessor's election either to terminate
this lease, or at Lessor's sole discretion, to repair or rebuild
the leased premises to the extent provided in Section 15. 01 above;
provided, however, that if Lessor elects to repair or rebuild and
has not substantially completed such repairs or rebuilding within
one hundred and eighty (180) days after the casualty, Lessee shall
have the right to terminate this lease upon thirty (30) days notice
to Lessor. In the event that Lessor elects to terminate this lease
pursuant to the foregoing, such termination shall be made without
liability of any kind on the part of Lessor to Lessee and Lessee
shall pay all required rent and other charges and payments through
the effective date of termination.
ARTICLE %VI.
DEFAULT BY LESSEE
16.01 Events of Default. Any one or more of the following
events shall constitute an event of default:
(a) Failure by Lessee to make all payments to Lessor or any
third party as required by the terms of this lease;
(b) Default by Lessee in the due, prompt and complete
performance and observation of any covenant, agreement,
or obligation of Lessee contained in this lease;
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(c) Failure by Lessee to occupy and provide full service from
the restaurant on or after the commencement date or
failure of Lessee to continuously operate in the manner
required in this lease;
(d) To the extent permitted by law:
(1) the making by Lessee of any general assignment for
the benefit of creditors;
(2) the filing by or against Lessee of a petition to
have Lessee adjudged insolvent or bankrupt;
(3) the appointment of a trustee or receiver to take
possession of any Lessee's assets;
(4) the attachment, execution or other judicial seizure
of substantially all of the Lessee's assets; or
(5) the admission in writing by Lessee of its inability
to pay its debts when due.
(e) Lessee's failure to obtain, maintain or operate under all
permits or licenses required hereunder;
(f) Lessor's discovery of the material falsity of any
financial statement of Lessee given to Lessor to induce
it to enter into this lease;
(g) Lessor's discovery of the material falsity of any audit
or monthly sworn statement given to Lessor by Lessee
under the terms of this lease;
(h) Lessee's vacation or abandonment of the restaurant at any
time during the term of this lease.
16.02 Remedies. Upon the occurrence and the continuation of
any event of default beyond the time period stated herein or the
period given by Lessor in its notice thereof to Lessee, Lessor
shall be entitled to exercise any rights and remedies available to
it under the laws of the State of Texas, including terminating this
lease and the tenancy created hereby. In the event of termination
of this lease by Lessor, Lessee shall remain liable for any rentals
and damages which may be due or sustained by Lessor and all
reasonable costs, fees and expenses including, but not limited to
attorneys fees, costs and expenses incurred by Lessor in pursuance
of its remedies hereunder, or in renting the leased premises to
others from time to time.
work/wko/botanic.con(42092) 13
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ARTICLE XVII.
DEFAULT BY LESSOR
17.01 Opportunity to Cure. Lessor 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 Lessee to Lessor specifying wherein Lessor has failed to
perform such obligation; provided, however, that if the nature of
Lessor's obligation is such that more than thirty (30) days are
required for its performance then Lessor shall not be 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, Lessee may, at its option,
terminate this lease by giving Lessor written notice of its
intention to do so within thirty (30) days after the expiration of
said thirty (30) day period. In that event, this lease will
terminate on the date stated in the notice.
ARTICLE XVIII.
NATURE OF RELATIONSHIP
Lessor and Lessee agree that the nature of the relationship
between them is one of landlord and tenant, and no other. Nothing
contained in this lease 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 Lessor and Lessee, 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 lease, nor any acts of the parties hereto shall
be deemed to create any relationship between Lessor and Lessee
other than the relationship of landlord and tenant. Lessee shall
maintain exclusive control, direction and management of its
employees, and Lessor shall have no rights with respect thereto,
except for Lessor's right to enforce covenants of the Lessee as set
forth in this lease.
ARTICLE XIX.
ASSIGNMENT
Lessee may not assign or sublet the leased premises or any
portion thereof, nor may Lessee assign, transfer or delegate to any
person Lessee's rights or duties with respect to the leased
premises or the operation of the restaurant.
work/wko/botanic.con(42092) 14
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ARTICLE %%.
INDEMNIFICATION
20.01 Lessee's Obligations. Lessee shall indemnify Lessor
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
Lessee's use of the leased premises or operation of the
restaurant thereon or from the conduct of Lessee's
business or from any activity, work, construction or
thing done, permitted or suffered by Lessee in or about
the leased premises or within the Botanic Garden, even
where negligence of the Lessor 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
proceeding for alleged breach or default in the
performance of any obligation of Lessee hereunder
including, without limitation, Lessee's obligation to
procure certain insurance as hereinafter provided;
(c) Any and all litigation related to activities of Lessee
in the leased premises or in the Botanic Garden where
Lessee and/or the City of Fort Worth has been joined as
a party therein; or
(d) Any other act or omission of Lessee or any of Lessee's
agents, employees, contractors, invitees or licensees.
Lessee's indemnification of Lessor and the City of Fort Worth
hereunder shall in all respects survive the expiration of
termination of this lease.
ARTICLE %%I.
GENERAL PROVISIONS
21.01 Notices. All rent shall be paid or mailed to Lessor
at the address set forth at the first of this document, and all
notices required herein shall be sent to the respective parties by
certified mail, return receipt requested, at the addresses set
forth at the first of this document.
21.02 Binding Effect. The provisions of this lease shall be
binding upon and enure to the benefit of the parties hereto and
their respective heirs, successors and assigns.
work/wko/botanic.con(42092) 15
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21.03 Interpretation and Place of Performance. This lease
shall be construed under the laws of the State of Texas and is
deemed by the parties to be performable in Tarrant County, Texas.
21.04 Partial Invalidity. If any one or more of the
provisions contained in this lease 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 lease shall be construed as if such
invalid, illegal or unenforceable provision had never been
contained herein.
21.05 Attorneys Fees. If either party engages an attorney
to file suit in order to enforce any rights under this lease, 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.
21.06 Amendment. This lease may not be altered, waived, or
otherwise modified, except where done in writing, and signed by
Lessor and by Lessee.
21.07 Entire Contract. This instrument contains the entire
agreement between the parties relating to the subject matter
herein. There are no other verbal or written understandings,
promises, agreements, or representations relating to the subject
matter of this lease which have not been included herein, and this
lease supersedes any and all other agreements, either oral, or in
writing, between the parties hereto with respect to the subject
matter herein.
EXECUTED this day of , 1992.
LESSOR:
Fort Worth Botanical Society, Inc.
B e y Leche, P sident
LESSEE•
ert Vivi d/b/a Catering by ert
Robert Vivion
work/wko/botanic.con(42092) 16
The City consents to this sub-
contract pursuant to Sec. 20 of
City Secretary Contract No. 12331.
CITY OF FORT WORTH
By:
Libby Watsaii
Assistant City Manager
Date: S l j/ y
APPROVED AS TO FORM AND LEGALITY:
Assistant City torney
Date: '/_ .>e 7- tj Z
KmQQ
Ric and Zavala, Director
Par and Recreation
ATTEST:
Alice Church
City Secretary
4Conra Authorization
Date
work/wko/botanic xon(42092) 17
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ATTACHMENT "A"
Dinnerware- Lyrica Doz.
614 cup 6 1/2 oz 9
605 plate salad 7 1/8" 15
602 bowl 10 oz. 6
601 bouillon 7 oz. 6
615 saucer 5 7/8" 9
619 mug 9 oz. 3
600 bowl fruit 3 oz. 9
616 platter 13 3/8" 9
Flatware-Cove II
016 bouillon spoon 6
001 tea spoon 6
030 fork lunch 9
038 fork salad 9
750/2 knife 9
Glassware- Libby
8412 wine 12 oz. 6
8011 water 11 oz. 9
3747 juice 7 oz. 3
3795 flute 6 oz. 9