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HomeMy WebLinkAboutContract 32703 (2) CITY SECRETARY:P7(6 CONTRACT NO, MANAGEMENT AND LEASE AGREEMENT FORT WORTH COMMUNITY ART CENTER This agreement is entered into by and between the City of Fort Worth, acting by and through Libby Watson, its duly authorized Assistant City Manager, hereinafter called "Lessor", and the Fort Worth Community Arts Center, acting by and through Flora Maria Garcia, its duly authorized President, hereinafter called "Lessee". WITNESSETH: 1. PREMISES AND TERM Section 1.1 Leased Premises. In consideration of a $100 annual lease fee and under the terms included herein and the commitments made herein by Lessee and Lessor, Lessor leases to Lessee and Lessee takes from Lessor the following property, collectively referred to in this lease as the "Leased Premises": (a) the grounds and building known together as the Fort Worth Community Arts Center, with the street address of 1300 Gendy Street, Fort Worth, Texas, 76107; and (b) all the equipment, fixtures, furnishings, design, decor, decorations, installations, appurtenances, and personal property that has been placed, installed, and erected in said building by Lessor or the Modern Art Museum. Section 1.2 Term. The term of this Lease will be effective November 1, 2005 and will end October 31, 2010, unless otherwise renewed or terminated pursuant to the terms hereof. This Lease may be renewed for successive terms of five years each up to a maximum of two successive five-year terms, subject to the termination provisions of this Lease. Four months prior to any renewal of this lease, the Lessee shall provide to the Lessor a report outlining the use of and services provided by the Lessee under the terms of this lease. The terms of this Lease shall continue to govern and control the relationship of the parties during the renewal periods. This lease throughout the term shall constitute both a lease and a management agreement for the operation of the Fort Worth Community Arts Center. 2. CONDITION OF PREMISES Section 2.1 Condition. (a) Lessee covenants and agrees to accept the Leased Premises in their present condition, finds them suitable and in good condition 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 representations by Lessor as to the condition of the premises or their suitability for the purposes intended. (b) Should the Lessee find that there are other repairs necessary to make the Leased Premises suitable and in good condition for the purpose intended, the Lessee may petition the Lessor to provide funding to bring the premises to a useable state. (c) The Lessee agrees to use its grant-writing and fund raising abilities in conjunction with the Lessor to secure funding to enhance the condition of the building and to implement the Reuse Plan for the Leased Premises developed and adopted by the Committee on the Reuse of the Old Modern Museum, hereinafter referred to as the "Reuse Plan." 3. USE; SIGNS; PARKING Section 3.1 General Use. Lessee will use and occupy the Leased Premises as a multi-cultural, recreational and entertainment facility solely for the benefit of the general public. Lessee shall use and occupy the Leased Premises in accordance with the provisions listed on the attached Exhibit "A". Functions, programs, and events exclusively for members of the Arts Council of Fort Worth and Tarrant County or for members of other organizations may be held on the Leased Premises only at times and in such a manner as not to interfere with the operating of the Leased Premises as a public facility. In its use of the Leased Premises and the presentation of programs of Lessee, Lessee will not discriminate against any person because of race, religion, color, sex, national origin, age or disability and will operate the Leased Premises and the programs thereon in full compliance with all applicable local, state, and federal laws and regulations. Section 3.2 Use of Museum and Theatre Facility. Lessee will utilize a part of the office space in the facility to house an arts incubator. Any other office space shall be used to lease to and house arts organizations. The facility will also be used to provide exhibit space for collections of art works that reflect and celebrate the cultural diversity of the city. The Lessee shall use the museum and theatre facility for instructional and rehearsal activities and other arts associated activities that it deems appropriate and that are consistent with the Reuse Plan. Lessee will provide management services, and may enter into rental agreements with performing arts entities, other organizations and individuals for use of the Leased Premises; provided, however, that any such agreements will be in accordance with and subject to the terms and conditions of the lease. The Lessee shall furnish sufficient personnel to conduct all its operations. Section 3.3 Signs. Lessee may place on and in the Leased Premises such signs as Lessee deems necessary and proper in the conduct of Lessee's business; provided that all signage shall conform to the sign code of the City of Fort Worth. "f,fiJb' ( c; Section 3.4 Parking. Except for the period of time each year when the Southwestern Exposition and Livestock show is holding its stock show and rodeo, Lessee will have the non-exclusive right to use for vehicular parking purposes the public parking area of the Will Rogers Memorial Center provided, however, that at the discretion of the Fort Worth City Council, Lessor may charge or authorize the charging of a fee for any such vehicular parking, and provided also that the said paved vehicular parking area may be altered or reduced in size or upon sixty days notice cease to be used for vehicular parking purposes at any time at the discretion of the Fort Worth City Council. If parking is reduced in size or ceased and Lessor does not provide adequate substitute parking, Lessee may terminate this Lease upon sixty (60) days prior written notice. Provided further, that in the event Lessor authorizes a charge for vehicular parking, the non-exclusive right granted to Lessee hereunder shall be on financial terms no less favorable than non-exclusive rights are granted to any other museum facility or other user in the Cultural District. 4. MAINTENANCE; IMPROVEMENTS Section 4.1 Maintenance. Lessee covenants and agrees that it will, at its sole expense perform all upkeep, maintenance and repair necessary to keep the leased premises, and its operating systems, in good condition and in compliance with all applicable codes and regulations. Lessee will do all work and make all repairs necessary or advisable to keep the leased premises from deteriorating in value or condition and to restore and maintain the Leased Premises in as good condition as Lessee found them at the time it took possession under this lease, normal wear and tear excepted. For repairs to the roof, structural systems and foundation, exterior walls and windows, the heating, ventilation, and air conditioning systems and other major systems, the Lessee may petition the Lessor to fund the repair or replace these items. In addition, the Lessee may petition the Lessor to fund the capital improvements itemized on Exhibit B attached hereto over the initial term of this Lease as part of the Reuse Plan. If Lessor denies Lessee's petition and Lessor will not fund the improvements, Lessee has the option of either completing the improvements with its own funds or Lessee may terminate the Lease by giving Lessor thirty days notice. Lessor will provide general grass mowing services on the premises, on a schedule it deems appropriate to the season, in the manner such mowing is performed at other of Lessor's facilities. Lessee may perform additional landscaping and grounds keeping activities it deems necessary. Section 4.2 Improvements. Lessee covenants and agrees that it will not make or suffer any waste of the Leased Premises, nor shall Lessee make any structural alterations to said premises, except such alterations as may be first approved in writing by Lessor. Any such alterations, if permitted by Lessor, shall be made at Lessee's sole expense and shall be done in a good and workmanlike fashion approved by and u ,-Lo acceptable to the Director of Public Works of the City of Fort Worth, and shall be in full compliance with all local, state and federal requirements. In no event shall any person participating in any such alterations on the Leased Premises be considered an officer, agent, servant, employee, contractor or subcontractor of the City of Fort Worth. Any such alteration which is of a permanent nature and which cannot be removed without structural damage shall become and be the property of the City of Fort Worth and shall be surrendered as a part of the Leased Premises upon the-expiration or termination of this agreement. It is understood, however, that minor alterations and adjustments for which a City building permit is not required may be made to the Leased Premises by the Lessee without the prior written approval of the Lessor. Such minor alterations and adjustments shall be of the nature of, but not necessarily limited to, realigning or otherwise changing bookshelves, display cases, and non-loadbearing partitions and/or room dividers, interior painting, carpeting, and lighting fixtures. Any alterations or improvements that are funded in whole or in part with City funds shall be performed in compliance with all state competitive bid requirements and City purchasing regulations, including without limitation, the Disadvantaged Business Enterprise policy. Nothing herein shall be construed as a commitment or appropriation of City funds for any alterations or improvements. Section 4.3 Liens. Lessee shall have no power to create any liens against the Leased Premises and shall indemnify Lessor against any and all liens imposed or attempted to be imposed against the Leased Premises as a result of Lessee's actions. Section 4.4 Americans with Disabilities Act Compliance. In addition to the funds listed in Section 4.1, Lessor, at its sole cost, will fund up to a maximum of$25,000 worth of improvements to the Leased Premises necessary to comply with all applicable requirements of the Americans with Disabilities Act of 1990 ("ADA") during the term of this Lease. If the cost of the improvements exceed $25,000, Lessor shall determine in its sole discretion whether to complete the renovations. If the Lessor determines not to make the improvements, Lessor shall notify Lessee of its decision in writing. Within 30 days of receiving Lessor's determination not to complete the improvements, Lessee may complete the improvements at its sole cost or may terminate this Lease with forty- five days written notice to Lessor. If Lessee determines it will complete the improvements at its sole cost, all plans and specifications for such improvements must be approved by Lessor's ADA Compliance Office prior to the start of construction. Section 4.5 Ordinances; Inspection. Lessee covenants and agrees that neither it, nor its officers, agents, employees, licensees, invitees or patrons shall make or suffer any unlawful, improper or offensive use of the Leased Premises or any part thereof. Lessee further agrees to maintain and police the area in order to keep the Leased Premises in a clean safe and sanitary condition at all times and shall comply with all ordinances of the City of Fort Worth. The City's agents, servants or employees shall be permitted by Lessee to make inspection of the Leased Premises, after reasonable notice to Lessee, to ascertain compliance with the terms and provisions of this lease. 4 Section 4.6 Asbestos. Lessee acknowledges that asbestos-containing material exists on the Leased Premises. Lessee covenants and agrees to comply With all federal, state and local laws and regulations, concerning containment and maintenance of these materials including but not limited to those of the Environmental Protection Agency, the Occupational Safety and Health Administration, the Texas Department of Health and the City of Fort Worth plan for containment or removal of asbestos containing materials, now in existence or promulgated in the future. Lessee agrees that maintenance to areas of the premises containing asbestos will be provided under the supervision of personnel trained in the containment of asbestos containing materials and Lessee will notify Lessor's Department of Environmental Management if such asbestos containing materials are damaged or disturbed. Lessee covenants and agrees to notify Lessor prior to Lessee's undertaking any repairs, renovations, alterations, or remodeling of the Leased Premises or any other activity that might disturb asbestos-containing material, and' Lessee will not proceed with any such activity until approved in writing by Lessor's Department of Environmental Management. 5. CONCESSIONS; ASSIGNMENT; SUBLETTING Section 5.1 Concessions and Licenses. Lessee shall have the right, without Lessor's consent, to grant concessions or licenses for sale of any or all of the merchandise, products, food, beverages, and items within the Leased Premises deemed necessary by Lessee for its operations. Section 5.2. Assignment of Lease. With Lessor's consent, Lessee shall have the right to assign this lease. If this lease is assigned, such assignment shall be upon and subject to all of the terms, covenants, and conditions contained in this lease, and Lessee shall continue to remain liable thereunder. Upon any subsequent assignment, each subsequent assignee shall continue to be and remain liable hereunder. Within thirty (30) days after the execution and delivery of any such assignment Lessee shall furnish to Lessor a duplicate original of the assignment which shall contain an assumption by the assignee of all of the obligations of Lessee under this lease. Section 5.3. Subletting. Lessee may sublet portions of the Leased Premises without Lessor's consent provided such uses are consistent with this Lease and Lessee submits a copy of the sublease to Lessor within thirty days of execution. [ELI' 5 ,.o 6. BASIC UTILITY SERVICES Section 6.1 Utilities. Lessor warrants that the Leased Premises are served by electricity, water, gas, and sanitary sewer utilities. All charges for utility services provided to the Leased Premises, except for electricity, shall be paid for by Lessee. Lessor, upon Lessee providing copies of electric bills to Lessor, shall pay electricity costs up to $100,000 per year during the term of the lease subject to the yearly appropriation of funds by the City Council . Lessee shall be responsible for paying any electricity costs over $100,000 per year during the term of the lease, however the parties agree that the $100,000 per year amount will be reviewed annually and may be adjusted to reflect the changes in electrical rates. 7. INDEMNITY AND INSURANCE; INDEPENDENT CONTRACTOR Section 7.1 Indemnification. LESSEE COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE LESSOR, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, OF WHATSOEVER KIND OR CHARACTER; ARISING OUT OF OR ALLEGED TO ARISE OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE LEASING, OCCUPANCY, USE, CONDITION AND/OR MAINTENANCE OF THE LEASED PREMISES AND ANY AND ALL ACTIVITIES CONDUCTED THEREON, OR IN CONNECTION WITH THE ACTS OR OMISSIONS OF LESSEE, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, SUBLESSEES, PATRONS, GUESTS, LICENSEES, INVITEES OR TRESPASSERS OR IN CONNECTION WITH THE SALE AND/OR CONSUMPTION OF ANY FOOD, BEVERAGE, OR OTHER ITEM HEREUNDER; AND SHALL INDEMNIFY AND HOLD HARMLESS LESSOR FROM AND AGAINST ANY AND ALL INJURY OR DAMAGE TO SAID LEASED PREMISES OR ANY OTHER PROPERTY OF LESSOR, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE LEASING, OCCUPANCY, USE, CONDITION AND/OR MAINTENANCE OF THE LEASED PREMISES. Section 7.2. Liability Insurance. Lessee shall at all times during the term hereof, maintain a Commercial General Liability Policy of insurance with limits not less than $1,000,000 per occurrence, combined single limit for bodily injury or death and property damage, $2,000,000 aggregate. Said policy shall include the Lessor as an additional insured, as its interests may appear (ATIMA). Lessee shall furnish to Lessor a certificate of insurance verifying such coverage with a confirmation that such policy shall not be subject to cancellation except upon thirty (30) days' prior written notice to Lessor. Lessor may, at its option, also require Lessee to submit a copy of the policy or policies in effect as well as proof of payment of premiums. Insurance must be carried with firms licensed to do business in the State of Texas, and that have financial capability acceptable to Lessor. 6 Section 7.3. Insurance for Contents of Buildings. Lessee shall be responsible for maintaining any policy of insurance that will insure against loss of property owned by Lessee that is located on the Leased Premises. Said insurance shall waive any right of subrogation in favor of Lessor. Section 7.4. Fire and Extended Coverage: Boiler and Machinery Coverage. Lessor shall maintain a policy of fire and extended coverage insurance and boiler and machinery coverage to cover the structures and mechanical systems included in the Leased Premises. Such insurance policies shall be for full replacement value. Said insurance shall waive any right of subrogation in favor of Lessee. Section 7.5. Hazardous Use. Lessee will not permit the Leased Premises to be used for any purpose which would render the insurance thereon void or the insurance risk more hazardous and will use its best efforts to use the Leased Premises and to store its property in such a manner as to minimize risk of loss by casualty, it being acknowledged that the use of the Leased Premises in the proper and ordinary conduct of Lessee's business for the purposes set forth herein shall not be considered in violation of this Section. Section 7.6 Independent Contractor. It is expressly understood and agreed that Lessee shall perform its obligations and responsibilities hereunder as an independent contractor and not as an officer, agent, representative or employee of the Lessor; that Lessee shall have exclusive control of and the exclusive right to control the details of its obligations and responsibilities and all persons performing same; that Lessee shall be solely responsible for the acts or omissions of its officers, agents, employees or other persons under its supervision, management and control; that the doctrine of respondeat superior shall not apply as between Lessor and Lessee and that nothing herein shall be construed as creating a partnership or joint enterprise between Lessor and Lessee. 8. CASUALTY EVENT Section 8.1. Substantial Casualty. (a) As used herein, the term "substantial casualty" shall mean (1) a fire, explosion, flood, tornado or other casualty of like character, or (2) a structural defect in any part of the Leased Premises, or (3) any other act, condition or event, in any case not due to the negligence or breach of this Lease by Lessee and resulting in needed repairs, replacement or other expenditure in connection with the Leased Premises in an amount in excess of the sum of One Hundred Thousand Dollars ($100,000) plus any insurance proceeds received by or otherwise available to lessee from the occurrence of such substantial casualty. (b) If the Leased Premises are the subject of a substantial casualty, Lessee will have the option, exercisable by written notice given to Lessor within ninety (90) days after the,--- N occurrence of such substantial casualty, to terminate this Lease upon the date specified in said notice, said date not to exceed one (1) year from the date of the substantial casualty. In such event, the Lease shall expire as of such date in the same manner as if the date specified in said notice were the date herein originally specified for the expiration of the Lease term and Lessee shall have no obligation to make any expenditure in connection with such substantial casualty or the results thereof, unless Lessee's continued occupancy requires such expenditure. (c) If Lessee does not give notice as specified in Subsection (b) or waives its right to terminate, Lessor at its sole discretion may proceed to repair, restore, and rebuild the Leased Premises to its former condition within one hundred eighty (180) days from the date of such damage; provided, however, that Lessor will be under no obligation to expend any amount on rebuilding or repairing the Leased Premises in excess of the amount of insurance proceeds actually received by Lessor. (d) If Lessor chooses not to rebuild or restore the Leased Premises, the Lease will terminate. Such choice shall be made by written notice to Lessee within ninety (90) days after the occurrence of such substantial casualty. (e) In choosing whether to rebuild or restore the Leased Premises, Lessor may consider as a factor, without limitation as to other factors, the agreement by Lessee to fund at least One Hundred Thousand Dollars ($100,000) in uninsured repairs and such other funding as to which Lessee may agree in its discretion. Section 8.2. Minor Casualty. The term "minor casualty" shall be defined in like manner as "substantial casualty" in Section 8.1 except that the amount of uninsured repairs, replacements or other expenditures (the "needed repairs") is One Hundred Thousand Dollars ($100,000) or less. If the leased premises are the subject of a minor casualty, and there are insurance proceeds available to the Lessor in amounts sufficient to cover the needed repairs, Lessor will proceed with reasonable diligence to repair such damage. In the event that insurance proceeds are not available or not sufficient to cover the needed repairs, Lessor shall have no obligation to make such repairs until either (1) it . receives sufficient funds from Lessee to cover the uninsured needed repairs or (2) Lessee agrees to make the needed repairs at its own expense. In any case, if such repairs are not completed within ninety (90) days after the casualty, Lessee may terminate this Lease. 9. RECORDS — FEES—FUNDING Section 9.1. Records; Right to Audit. Lessee agrees to keep and maintain adequate books and records showing its receipts and disbursements. In addition, the Lessee agrees to have an audit and report of such books and records made each year by a qualified auditor who is independent of the Lessee and to furnish the City Council a copy of the report of such audit each year, certified as to truth and accuracy by the auditor making same. Such audit reports shall include, but not be limited to, a com statement of receipts and disbursements for the preceding year. ; U y J J 4 Lessor and Lessee agree that, until the expiration of three (3) years after the final payment under this Lease Agreement, Lessor shall have access to and the right to examine any directly pertinent books, documents, papers, subleases, agreements and records of the Lessee involving transactions relating to this Contract. Section 9.2. Fees. Lessee may make or authorize the making of reasonable admission, attendance or tuition charges for attendance at and/or participation in programs, events and functions conducted by or under the authorization of the Lessee in the Leased Premises, and Lessee may make reasonable charges to individuals, groups of individuals or organizations for their use of the Leased Premises. The Lessee may further make or authorize the making of reasonable charges for food and/or drink sold in or on, the demised premises in connection with activities herein set forth; however, a schedule of all such charges under this section shall be subject to review by the City Council, at the discretion of City Council. Such funds as may be realized by the Lessee from charges made in accordance with this paragraph shall be used by the Lessee only for the benefit of the general public and the operation and management of the Leased Premises. Upon notice of termination being sent to Lessor as provided under this Lease, all funds collected under the authority of this section shall not be spent by Lessee outside the purview of operating costs of the Arts Center. Upon termination of this lease, any funds collected under the authority granted under this section shall become the property of Lessor. Section 9.3. Funding. In consideration of Lessee providing the services outlined in this lease agreement, Lessor shall pay Lessee a total of $200,000 each year during the term of this lease paid quarterly beginning on the effective date of this Lease and on each anniversary date thereafter, made payable to the Fort Worth Community Arts Center, and shall pay up to $100,000 of the electricity costs subject to the annual appropriation of funds by the City Council, as that amount may increase as provided in Paragraph 6.1 above. 10. DEFAULT - REMEDIES Section 10.1. Default, Notice, Termination. If Lessee defaults in the performance of any of the terms, covenants, or conditions of this lease, Lessor may give to Lessee written notice of such default, and if Lessee does not cure such default within forty-five (45) days, after the giving of such notice (or, if such default is of a nature that it cannot be completely cured within such forty-five (45) days, if Lessee does not commence such curing within forty-five (45) days and thereafter proceed with reasonable diligence and in good faith to cure such default), then Lessor may terminate this lease on not less than thirty (30) days written notice to Lessee, and on the date specified in said notice the term of this lease shall terminate, and Lessee shall then quit 9 and surrender the Leased Premises to Lessor. If this lease shall have been so terminated by Lessor, Lessor may at any time thereafter resume possession of the Leased Premises by any lawful means and remove Lessee and other occupants and their effects. 11. CONTRACTING REQUIREMENTS Section 11.1. Disadvantaged Business Enterprise Commitment. It is the policy of the City of Fort Worth to involve disadvantaged business enterprises (DBE's) in all phases of its procurement practices and to provide them an equal opportunity to compete for contracts for construction, provision. of professional services, purchase of equipment and supplies and provision of other services required by the City. Therefore, Lessee agrees to incorporate City Council Policy No. 148, dated March 13, 1990, and all amendments or successor policies thereto, into all contracts of the Lessee and will further require all persons or entities with whom it contracts to comply with said Policy. A true and correct copy of City Council Policy No. 148 is attached hereto as Exhibit "B". 12. NOTICES Section 12.1. 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 duly given if hand-delivered or if mailed by registered or certified mail in a postpaid envelope addressed as follows: (a) If to Lessee: Fort Worth Community Arts Center President 1300 Gendy Fort Worth, TX 76107 (b) If to Lessor: City Manager City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 or at such other addresses as Lessee or Lessor, respectively, may designate in writing by notice pursuant to this Section 12.1. 13. QUIET ENJOYMENT Section 13.1. Quiet Enioyment. Lessor covenants that if and so long as Lessee performs the terms, covenants, and conditions required on Lessee's part by this Lease Agreement, Lessee shall peaceably and quietly have, hold and enjoy the Leased Premises for the term of this lease, subject to the provisions of this lease. 10 Section 13.2. Title Warranty. Lessor warrants and represents that Lessor has good and marketable title to the real property of which the Leased Premises form a part, free and clear of all liens and encumbrances. 14. RIGHT TO TERMINATE Section 14.1 Termination Without Cause. In addition to any other provisions of this Lease Agreement governing rights of termination, Lessor or Lessee shall have the right at any time during the term of this Lease Agreement, for any reason, to terminate this Lease on no less than twelve (12) months' notice, by written notice to the other party. The notice to terminate shall include a copy of the Arts Center's financial statement for the Leased Premises. 15. MISCELLANEOUS PROVISIONS Section 15.1. No Waiver. The failure of either party to insist on strict performance of any term; covenant, or condition hereof, or to exercise any option herein contained, shall not be construed as a waiver of such term, covenant, condition, or option in any other instance. Section 15.2. Written Modification. This lease cannot be changed or terminated orally, but only by an instrument in writing signed by both parties. Section 15.3. Access to Premises. Lessor may enter the Leased Premises at any reasonable time or reasonable notice to Lessee for the purpose of inspection and to repair the Leased Premises as required herein. Section 15.4. Captions. The captions in this lease are included for convenience only and shall not be taken into consideration in any construction or interpretation of this lease or any of its provisions. Section 15.5. Partial Invalidity. If any provision of this lease, or the application thereof to any person or circumstances, shall to any extent be held invalid or unenforceable, the remainder of this lease, or the application of such affected provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this lease shall be valid and shall be enforced to the fullest extent permitted by law. It is further the intention of Lessor and Lessee that if any provision of this lease is capable of two constructions, one of which. would render the provision void and other of which would render the provision valid, then the provision shall have the meaning which renders it valid. Section 15.6. If Lessee as a charitable association, corporation, entity, or individual enterprise, has or claims an immunity or exemption (stat therwise) UUU L .rA�l l! �l ilj J13 �L, from and against liability for damage or injury to persons or property, Lessee hereby expressly waives its rights to plead defensively such immunity or exemption as against Lessor. Section 15.7. Upon termination of this Lease for any reason, Lessee shall have the right to remove from the Lease Premises all art works and other personal property of Lessee, but may not remove improvements, alterations, or fixtures which may not be removed without structural damage to the Leased Premises. LESSOR: LESSEE CITY ORT WORTH Fort Worth Community Arts ter LS-Ty Watsoe Flora Maria Uarcia Assistant City Manager President ATTEST MAA� City Secret NO M&C REQUIRED APPROVED AS TO FORM AND LEGALITY Assistant City Attorney 12 4 EXHIBIT "A" Lessee agrees to use and occupy the Leased Premises as a multi-cultural, multi-aged arts facility in accordance with the following: A. The Arts Council Grants Process shall be isolated from the Fort Worth Community Arts Center (FWCAC) management through several mechanisms: 1. The chair person of each of the grants panels (Majors, Mid-Size, Small, Youth) is a member of the Board of Directors, not an Art Council staff member. The chair has the responsibility to ensure that only the grants criteria enter into the evaluation and grants awarding process. The chair is specifically directed to disallow any discussion of issues not related to those criteria, and that includes issues with residency or use of the FWCAC. 2. The grants panels are composed of no-conflict of interest arts organization peers, artists and arts professionals, community advocates for the arts, businessmen and the City of Fort Worth budget analysts. No one from the Arts Council staff including the President of the Arts Council shall rank the grant applications or make recommendations on grants funding. 3. Applications from arts organizations for grants are reviewed and scored by the grants panel on grants criteria only, namely; a) Artistic Merit, b) Managerial Ability, and c) Service to the Community. 4. The recommendations of each grants panel go directly to the Arts Council Board of Directors, which makes the final decision on the grants to be awarded to each arts group. 5. The President of the Arts Council has only an administrative role in the grants process, specifically, to screen applications for compliance of requirements, to summarize the requests of the arts organizations, to compute the results of the grants panelists evaluations and scoring, and to document the proceedings of the panel discussion. The President has not evaluative or grants recommending role. 6. The Director of the Fort Worth Community Arts Center, who is the Arts Council's Director of Finance and Operations, and who has day-to-day responsibility for managing the FWCAC and resolving operational 13 issues with the resident and using arts organizations, is specifically excluded from any role in the grants making process. B. On March 25, 2005, the Arts Council Board of Directors formally approved the creation of the position of Ombudsman for the Fort Worth Community Arts Center. The Ombudsman is a member of the Arts Council Board of Directors, and is to ensure responsiveness to the issues and concerns of the resident and user arts organizations of the FWCAC. The Ombudsman is a direct avenue to the Board of Directors if the arts organizations are unable to resolve issues with the Director of the FWCAC or the President of the Arts Council. This position is a further step in ensuring the isolation of the management of the FWCAC from the grants making process, while assuring advocacy for the FWCAC arts organization son the Board of Directors. Until the Ombudsman is formally named, the Chairman of the Arts Council Board of Directors will fill the Ombudsman role. C. The Chairman of the Board of Directors of the Arts Council is instituting a semi- annual meeting with the resident and user arts organizations of the FWCAC to assure another avenue of communication. It is the intent of the first meeting in April to go over the actions outlined in this memo, so the arts organizations are up to date on the grants process and the management of the FWCAC, and to hear about on-going issues. D. The Chairman of the Board of Directors of the Arts Council will meet on a quarterly basis with the Mayor and interested members of the City Council to provide updates on the status of the FWCAC and to assure understanding of issues associated with its management. I:\PROGERSWrts CounciltLease Agreement 2nd Term 2nd change 8-26-05.doc 14