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HomeMy WebLinkAboutContract 44109 (2)011M.DI rg ) Cele la RI " OFFICE SPACE LICENSE AGREEMENT a7HIS OFFICE SPACE LICENSE AGREEMENT (this "License") is entered into as of _TS day of ,y Gtl.- , 2O1-2t (the "Effective Date") by and between BEHRINGER HARVARD BURNETT PLAZA LP, a Texas Wilted partnership ("Licensor'), and CITY OF FORT WORTH, a Texas municipal corporation ("Licensee") individually referred to as a "Party," collectively referred to as the "Parties." RECITALS A. Licensor owns the building known as Burnett Plaza, located at 800 and 801 Cherry Street, Fort Worth, Texas (the "Building"); and B Licensor has agreed to grant Licensee a license to use the License Space (hereinafter defined) upon the terms and conditions below. AGREEMENT For good and valuable consideration which the parties acknowledge receiving, Licensor hereby grants to Licensee a license to use the License Space subject to the following terms and conditions: 1. License Space. "License Space" means Suite 3175 on the 31 st floor of the Building and containing approximately 816 rentable square feet as shown on Exhibit A attached hereto. 2. Condition of License Space. Licensee hereby accepts the License Space in "AS IS" condition. Except as provided in Exhibit C attached hereto, Licensor will have no obligation to make improvements or alterations to the License Space. Taking possession of the License Space by Licensee shall conclusively establish that Licensee is fully familiar with the physical condition of the License Space, and that the License Space is in the condition required for the License and is suitable for the purposes for which it is licensed. 3. Use. The License Space shall be used solely for general administrative non -governmental office use consistent with that of a first-class office building. 4. Term. The initial term ("Initial Term") of this License shall be five (5) years, commencing on November 1, 2012 ("Commencement Date"), and expiring on October 31, 2017 ("Expiration Date"), unless otherwise terminated as provided in this License. Licensee shall have the right to extend the Term for two (2) successive five (5) year periods (each, a "Renewal Term") on the same terms and conditions as set forth herein. This License shall automatically be extended for such successive Renewal Terms unless Licensee notifies Licensor of its intention not to renew this License at least one hundred twenty (120) days prior to the commencement of the succeeding Renewal Term. For the purposes of this License, "Term" shall mean the Initial Term plus any applicable Renewal Term(s). 5. Rental. Licensee shall pay to Licensor during the License Term a monthly "License Fee," due on the first (1st) day of each month during the License Term and which will be prorated for any partial months in accordance with the following schedule: Months Annual License Fee per RSF November 1, 2012 through October 31, 2013 _ City of Fort Worth_Bumett Plaza Office Space License Agreement Page 1of14 $2.5.00_ OFFICIAL RECORD CITY SECRETARY rrWORTH,TX Annual License Fee Monthly License Fee $20,400.00 $1,700.00 01-24-1 3 Fu4 : November 1, 2013 through October 31, 2014 November 1, 2014 through October 31, 2015 November 1, 2015 through October 31, 2016 November 1, 2016 through October 31, 2017 $25.50 $26.01 $26.53 $27.06 $20,808.00 $21,224.16 $21,648148 $22,080.96 $1,734.00 $1,768.68 $1,804.04 $1,840.08 Notwithstanding anything to the contrary herein contained, Licensor acknowledges that funds for payment of the License Fee are appropriated by Licensee annually, for fiscal year periods beginning October 1 and ending September 30 of each year. If funds are not appropriated by the Fort Worth City Council to pay the License Fee beyond September 30, 2013, or for any subsequent fiscal year period during the initial License Term or any renewal License Term of this License, Licensee shall have the right to terminate this License on the last day of the fiscal year for which funds have been appropriated to pay the License Fee Licensee will give Licensor thirty (30) days written notice of non -appropriation of funds. 6. Utilities. Licensee shall provide and pay for all utilities required for its use of the License Space. All installation and maintenance of same shall be at the sole risk and expense of Licensee. 7. Termination or Expiration of License At the termination or expiration of the License, Licensee must surrender the License Space to Licensor in broom clean condition, with all of its personal property and equipment removed, and all damages repaired except for normal wear and tear, and otherwise in the same condition as the License Space was delivered to Licensee. 8. Compliance with Laws Licensee shall obtain at its sole expense any permits and licenses required for Licensee's use of the License Space and comply with all laws, ordinances and codes applicable to Licensee's use or occupancy of the License Space. 9. No Leasehold. This License shall not be, and shall not be deemed to be, a grant, conveyance or creation of any leasehold, easement or other interest in real property. 10. No Assignment or Sublicensing. Licensee shall not assign this License or sublicense any portion of the License Space. Any assignment or sublicense in violation of this section shall be void and of no force and effect. 11. No Alterations. Licensee may not make alterations or improvements to the License Space without Licensor's prior written consent. 12. Insurance. Licensor acknowledges that Licensee is a self -funded governmental entity, subject to statutory tort laws. Licensee does not maintain a commercial policy of general liability insurance and/or automobile liability insurance. Such claims and damages will be paid directly by Licensee. Licensee shall maintain reserves that are sufficient to cover its liability exposure, subject to the caps established under Texas law. 13. Indemnity/Liability. a LICENSEE SHALL BE LIABLE FOR ANY AND ALL INJURY, LOSS OR DAMAGE (OR ANY CLAIMS IN RESPECT OF THE FOREGOING), COSTS AND EXPENSES, TO THE EXTENT CAUSED BY THE City of Fort Worth_Bumett Plaza Office Space License Agreement Page 2 of 14 NEGLIGENT, WILFULL ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF LICENSEE ITS OFFICERS, EMPLOYEES, SERVANTS OR AGENTS b. LICENSOR SHALL BE LIABLE FOR, AND HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD LICENSEE HARMLESS FROM AND AGAINST ANY AND ALL INJURY, LOSS, DAMAGE OR LIABILITY (OR ANY CLAIMS IN RESPECT OF THE FOREGOING), COSTS OR EXPENSES (INCLUDING REASONABLE ATTORNEY'S FEES AND COURT COSTS) ARISING FROM ANY NEGLIGENT, WILFULL ACT OR OMISSION OF LICENSOR OR ANY OF ITS EMPLOYEES, AGENTS CONTRACTORS SUBCONTRACTORS, SERVANTS, LICENSEES, INVITEES, OR INDEPDENDENT CONTRACTORS, OR THE BREACH OF THIS LICENSE EXCEPT TO THE EXTENT ATTRIBUTABLE TO THE NEGLIGENCE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF LICENSEE, ITS OFFICERS, EMPLOYEES, SERVANTS OR AGENTS. c. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS LICENSE, LICENSOR AND LICENSEE EACH HEREBY RELEASE THE OTHER (THE "RELEASED PARTY') AND AGREE THAT THE RELEASED PARTY SHALL NOT BE LIABLE TO THE OTHER OR TO ANY INSURANCE COMPANY (BY WAY OF SUBROGATION OR OTHERWISE) INSURING THE OTHER PARTY, FOR LOSS OF OR DAMAGES TO ANY IMPROVEMENTS, EQUIPMENT, FURNITURE OR OTHER PROPERTY LOCATED IN THE LICENSE SPACE, TO ANY EXTENT THAT, ANY SUCH LOSS OR DAMAGE ARISES OUT OF A RISK GENERALLY COVERED BY "ALL RISK" PROPERTY DAMAGE INSURANCE, WHETHER OR NOT ACTUALLY CARRIED BY THE PARTY SUFFERING SUCH LOSS OR DAMAGE (INCLUDING ANY LOSS WHICH WOULD BE COVERED BY DEDUCTIBLES OR ANY CO-INSURANCE OR SELF-INSURANCE). 14. Access. Licensor may upon reasonable advance notice to Licensee (except no such notice shall be required in the event of an emergency or in connection with Licensor's enforcement of remedies) enter upon the License Space at reasonable times during normal business hours to perform its obligations under this Agreement. Licensor and Licensee hereby acknowledge the critical nature of the radio communications equipment located in the License Space, and the need for support staff to have quick access to the Building, the Equipment Room, and rooftop Antenna Mount locations. Licensor agrees to provide one (1) parking space located in Licensor's parking garage to be reserved specifically for Licensee's service personnel and supporting vendors. In the event Licensee needs additional parking spaces for service personnel and supporting vendors to perform work under the License, Licensor agrees to provide such additional parking spaces in Licensor's parking garage at no additional cost to Licensee. Licensee will be provided 24-hour access seven days per week. After normal business hours, Licensee personnel will register with Licensor's security personnel. If Licensor's security personnel are not present at their normal duty station, Licensee personnel will leave a business card or written note at the duty station with personnel's name and time of arrival. 15. No Personal Liability. Licensor and it's agents and employees shall not be liable to Licensee for any injury to persons or damage to property sustained by Licensee or any person claiming through Licensee resulting from any accident or occurrence in or around the License Space, including parking areas, except where due to the negligence or willful misconduct of Licensor or its agents or employees. Neither Party shall be liable hereunder for consequential damages or special damages. 16. Holding Over. If Licensee possesses any portion of the License Space after the expiration or termination of the License Term, then Licensee shall be deemed to be occupying the License Space as a tenant at will at a daily fee equal to 150% of the per diem License Fee, and otherwise subject to all the conditions of this License insofar as the same are applicable to a tenancy at will; provided, however, that nothing herein shall be construed as consent to any such holding over or a waiver by Licensor of any rights or remedies on account thereof. 17 Renewal Option. Licensee shall have two (2) options to extend the License Term in accordance with the terms and conditions g ..r,ibi ^"acl : at_s so;04 So_ailstm.) 4,1ektia City of Fort Worth_Bumett Plaza Office Space License Agreement Page 3 of 14 18. Remedies/Termination. If either Party fails to comply with any provision of this License, and does not cure such failure within thirty (30) days of receipt of notice from the other Party, then such failure shall be considered a breach, then, in addition to any other rights or remedies available to the non breaching Party, the non - breaching Party may immediately terminate this License by written notice to the other Party. Upon such termination, Licensee shall immediately surrender the License Space to Licensor Such termination shall not relieve Licensee from any accrued but unpaid License Fees. 19. Entire Agreement. This agreement constitutes the entire agreement between Licensor and Licensee with respect to the License Space. No prior written or oral promises or representations regarding the License Space shall be binding. 20. Licensor's Rules and Regulations. During the License Term, Licensee shall comply with all Rules and Regulations for the Building promulgated by Licensor, attached hereto as Exhibit B. 21. Attorney's Fees. In any dispute regarding this License, each Party shall be liable for its own attorney's fees and expenses. 22. Force Majeure. Time is of the essence for all of Licensee's and Licensor's obligations under this Agreement, except neither party may be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to compliance with any government law, ordinance or regulation acts of God, acts of the public enemy, fires strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. [SIGNATURE PAGES FOLLOW] City of Fort Worth_Bumett Plaza Office Space License Agreement Page 4 of 14 Licensor and Licensee have executed this this License as of the Effective Date. LICENSOR: BEHRINGER HARVARD BURNET T PLAZA LP, a Texas limited partnership By: Behringer Harvard Burnett Plaza GP, LLC, A Delaware limited liability company Its general partner By: Greg Brode Vice �sident Date: /Z/5"76 BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Greg Brooke, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of Behringer Harvard Burnett Plaza, LP, and that s/he executed the same as the act of Behringer Harvard Burnett Plaza, LP for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this LeeThiA&k , 201A City of Fort Worth_Bumett Plaza Office Space License Agreement Page 5 of 14 13 day Jr1/141c7/1/0 Notary Public in and for the State of Texas �o=a� �s�►��a,�4.®��,�ao�oc�a� <�ocv� oGh�; ,,,,,� Y ,,1�,,y,�Tamara Lee Ann Weaver fi raNcs. Notary Public, State of 'texas N F;I '7%r„ ',n�`` Comm. Exp.07-05 14 <-,111:11%�®ems%ww.see.w.' Go° LICENSEE: CITY OF FORT WORTH: a Texas Municipal Corporation cy:?BJ1 pi- SuAan Alanis Assistant City Manager Date: !!24 I I92 BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Susan Alanis, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that s/he executed the same as the act of the City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day « 0)O.20 . UNDA i �. H d;11It.• LAGER MY COMMISSION EXPInES February 2, 20t14 i[— av ..b L. bpi.. 64.1 . .. I. APPROVED AS TO FORM AND LEGALITY: B Males is B. Farmer Assistant City Attorney Contract Authorization;m&c: thmoca- Date Approved: I Qi/N I, e) City of Fort Worth_Bumett Plaza Office Space License Agreement Page6of14 J s CIAO rn- ft?sedi Notary Public in and for the State of Texas -- ATTEST: i ALki f Mary Kayser City Secretary ri e) 0 N.(62° 4111/4-E°0 vh - °o C2- a®�2)� 4tr- \ V cS Q0 e8:4(;; � a. a o0" 0000 z-cy •w�aw 111 ges 111-0" 19'-0" DIMENSIONS ARE APPROXIMATE. City of Fort Worth_Bumett Plaza Office Space License Agreement Page 7of14 F EXHIBIT A - LOCATION OF LICENSE SPACE ELISABETH MEYER PALMER TEXAS REGISTERED INTERIOR DESIGNER TBAE REGISTRATION NO. 10382 04-18-12 NOT TO BE USED FOR REGULATORY APPROVAL, PERMIT OR CONSTRUCTION. 31 ST FLOOR KEY PLAN INTERPRISE TM Ruin Na a,ae• 5060 Sprdnn0 DUN Sulk 115 East Mdbon. T279001 Te 972.385.3191 F1 91L960.2519 rw.MhrprludN9nsan Interiors • Planning • Graphics BURNETT PLAZA Br_I_Ri;\i;eR1- A vAMD 801 CHERRY STREET FORTH WORTH, TX 11 uuu ❑n NCYIDM P930M9 ENSINEE10Na 1K MEW ND CONSTRUCTION 1111 till SPACE PLAN #1 04-18-12 "m 1/8"=1'-0" EAM t1111' 1' EMP 680 "' 816 0829-1121-16 _O sP#1 Mil 1, EXHIBIT B - BUILDING RULES AND REGULATIONS 1. Licensor's Entry. In accordance with Section 14 of the License, Licensor may, upon reasonable advance notice to Licensee (except no such notice shall be required in the event of an emergency or in connection with Licensor's enforcement of remedies), enter upon the License Space at reasonable times during normal business hours to perform its obligations under this Agreement. 2. Right to Exclude. Subject to Section 14 of the License, Licensor may require that Licensee, its Affiliates and guests comply with each reasonable security measure that Licensor may establish as a condition of entry to the Premises, Building or Project. These measures may include submitting to a search by persons or devices employed by Licensor, presenting an identification card or pass issued by the government, Licensor, or both being announced to Licensee and accepted as a visitor by Licensee, and signing a register on entry and exit Any person who cannot comply with these requirements may be excluded from the Project. If Licensor requires a Building pass issued by Licensor as a condition of entry to the Premises Building or Project, Licensor will furnish a Building pass to all persons reasonably designated by Licensee in writing Licensor may exclude or expel from the Project any person who, in Licensor's reasonable opinion, is intoxicated or under the influence of alcohol or drugs. Notwithstanding any of the foregoing, Licensor shall not unreasonably delay access to the Premises to Licensee, or Licensee's personnel or supporting vendors. 3. Obstructions. Licensee will not cause the Common Areas, or sidewalks or driveways outside the Building to be obstructed Licensor may, at Licensee's expense, remove any such obstruction without prior notice to Licensee. 4. Trash Licensee will place trash in proper receptacles in the Premises provided by Licensee at Licensee's cost, or in Building receptacles designated by Licensor Licensee may not litter in the Common Areas, or sidewalks or driveways outside the Building. 5. Public Safety. Licensee will not throw anything out of doors windows or skylights, down passageways or over walls. Licensee will not use any fire exits or stairways in the Building except in case of emergency. 6. Keys and Locks. Licensor may from time to time install and change locks on entrances to the Project, Building, Common Areas or Premises, and will provide Licensee a number of keys to meet Licensee's reasonable requirements. Additional keys will be furnished by Licensor at Licensee's cost At the end of the Term, Licensee will promptly return to Licensor all keys for the Building and Premises issued by Licensor to Licensee. Unless Licensee obtains Licensor's prior written consent, Licensee will not add any locks or change existing locks on any door to the Premises, or in or about the Premises. If with Licensor's consent, Licensee installs any lock incompatible with the Building master locking system, Licensee will: relieve Licensor of each License obligation that requires access to each affected area; and, at the end of the Term, remove each incompatible lock and replace it with a Building Standard lock at Licensee's expense. 7. Aesthetics. Unless Licensee obtains Licensor's prior written consent (which may be withheld in Licensor's sole and absolute discretion), Licensee may not: (a) Attach any awnings, signs displays or projections to either the outside walls or windows of the Building, or to any part of the Premises visible from outside the Premises; (b) Hang any non -Building Standard curtains, blinds, shades or screens in any window or door of the Premises; (c) Coat or sunscreen the interior or exterior of any windows; or (d) Place any objects on windowsills. City of Fort Worth_Bumett Plaza Office Space License Agreement Page 8 of 14 8. Directories and Signs. Subject to any space limitations, Licensee will be entitled to listing in the Building's directory in the main lobby, and one (1) Building Standard Licensee identification sign (consisting of Licensee's name and suite number) at the entrance to the Premises The initial lobby directory listing and Premises sign will be at Licensor's cost and expense, and any changes to the listing or sign will be made at Licensee's cost and expense. 9. HVAC Operation. Licensee will not obstruct the HVAC convectors or diffusers, or adjust or interfere with the HVAC system. Licensee will assist the HVAC system in maintaining comfort in the Premises by drawing shades, blinds and other window coverings in the Premises as may be reasonably required Licensee may not use any method of heating or cooling the Premises other than that supplied by Licensor 10 Plumbing. Licensee will use plumbing fixtures only for the purpose for which they are constructed. Licensee will reimburse Licensor for any damage caused by Licensee's misuse of plumbing fixtures. 11. Equipment Location. Licensor may specify the location of any of Licensee's Business machines, mechanical equipment or other property that are unusually heavy, may damage the Building, or may cause vibration, noise or annoyance to other Licensees. Licensee will reimburse Licensor for any professional engineering certification or assistance reasonably required to determine the location of these items. 12. Bicycles. Licensee may not bring bicycles or other vehicles into the Building or Premises. Bicycles and other vehicles may only be parked in areas designated by Licensor. 13. Animals. Licensee may not bring any birds or animals, excepting seeing-eye/assistance dogs, into the Building or Premises. 14. Carpet Protection. To protect carpeting in the Premises, Licensee will, at its own expense, install and maintain pads to protect the carpet under all furniture having castors other than carpet castors. 15. Elevators. Any use of the elevators for purposes other than normal passenger use (such as moving to or from the Building or delivering freight), whether during or after Business Hours, must be scheduled through the office of the Property Manager Licensee will reimburse Licensor for any extra costs incurred by Licensor In connection with any such non -passenger use of the elevators. 16. Moving and Deliveries. Moving of Licensee's Personal Property and deliveries of materials and supplies to the Premises must be made during the times and through the entrances elevators and corridors reasonably designated by Licensor. Moving and delivenes may not be made through any of the main entrances to the Building without Licensor's prior permission. Any hand truck or other conveyance used in the Common Areas must be equipped with rubber tires and rubber side guards to prevent damage to the Building and its property. Licensee will promptly reimburse Licensor for the cost of repairing any damage to the Building or its property caused by any person making deliveries to the Premises. 17. Solicitation. Canvassing, soliciting and peddling in the Building are prohibited and Licensee will cooperate in preventing the same. 18. Food Only persons approved from time to time by Licensor may prepare, solicit orders for, sell, serve or distribute food in or around the Project. Except as may be specified in the License or on construction drawings for the Premises approved by Licensor, and except for microwave cooking, Licensee will not use the Premises for preparing or dispensing food, or soliciting of orders for sale, serving or distribution of food. 19. Work Orders. Only authorized representatives of Licensee may request services or work on behalf of Licensee Licensee may not request that Building employees perform any work outside of their duties assigned by Licensor. 20. Smoking. Neither Licensee nor its Affiliates shall smoke or permit smoking in any part of the Project in which Licensor, in Licensors sole and absolute discretion prohibits smoking. Licensor may designate the entire Project a no -smoking area, excepting areas in which Licensor, in Licensors sole and absolute discretion, permits smoking. City of Fort Worth_Bumett Plaza Office Space License Agreement Page 9 of 14 21. Rules Applied. These Rules and Regulations apply equally to Licensee's Affiliates and others permitted by Licensee to access, use or occupy the Premises City of Fort Worth_Bumett Plaza Office Space License Agreement Page 10 of 14 EXHIBIT C - WORK LETTER 1. Acceptance of License Space. Except as set forth in this Exhibit C, Licensee accepts the License Space in its "AS -IS" condition on the date it is delivered to Licensee by Licensor. 2 License Space Plans Licensor and Licensee have approved the space plans for the License Space drawn by Licensor's architect Interprise Design (the "Architect") dated April 18, 2012 depicting improvements to be installed in the License Space (the "License Space Plans'). Work shall include improvements depicted in Exhibit E. 3. Working Drawings. (a) Preparation and Delivery. On or before the twentieth (20th) day following the Effective Date of this Lease, Licensor shall cause the Architect to provide to Licensee working drawings, prepared by the Architect, of all improvements to be installed in the License Space as set forth in the License Space Plans (b) Approval Process Licensee shall promptly notify Licensor whether it approves of the submitted working drawings. Licensee's approval of such working drawings shall not be unreasonably withheld or delayed. If Licensee disapproves of such working drawings then Licensee shall notify Licensor thereof specifying in reasonable detail the reasons for such disapproval, in which case Licensor shall cause the Architect to revise such working drawings and submit the revised working drawings to Licensee for its review and approval. This process shall be repeated if necessary, until the working drawings have been finally approved by Licensee and Licensor. As used herein, "Working Drawings' means the final working drawings approved by Licensor and Licensee, as amended from time to time by any approved changes thereto, and "Work' means all improvements to be constructed in accordance with and as indicated on the Working Drawings. (c) Licensor's Approval: Performance of Work. The Architect's submission of the License Space Plans and the Working Drawings, and Licensor's approval of any changes thereto, shall not be a representation or warranty of Licensor that such License Space Plans and Working Drawings are adequate for any use or comply with any applicable law, but shall merely be the consent of Licensor thereto. After the Working Drawings have been approved, Licensor shall cause the Work to be performed in a good and workmanlike manner in substantial accordance with the Working Drawings. 4. Bidding of Work. Prior to commencing the Work, Licensor shall competitively bid the Work to at least three (3) contractors approved by Licensor, unless requested by Licensee to submit fewer bids. If the estimated Total Construction Costs exceed the Construction Allowance Licensee shall notify Licensor of any items in the Working Drawings that Licensee desires to change within ten business days after Licensor's submission thereof to Licensee If Licensee fails to notify Licensor of its election within such ten business day period Licensee shall be deemed to have approved the bids. 5. Change Orders. Licensee may initiate changes in the Work, provided that any resulting increased costs shall be added to the Total Construction Costs Each such change must receive the prior written approval of Licensor, such approval not to be unreasonably withheld or delayed; however, (a) if such requested change would adversely affect (in the reasonable discretion of Licensor) (1) the Base Building, (2) the exterior appearance of the Building, or (3) the Common Areas or (b) if any such requested change might delay the Commencement Date, Licensor may withhold its consent in its sole and absolute discretion. City of Fort Worth_Bumett Plaza Office Space License Agreement Page 11 of 14 6. Definitions. As used herein, and subject to Section 22 of this License Agreement, a "Licensee Delay Day" means each day of delay in the performance of the Work that occurs (a) because Licensee unreasonably fails to timely furnish any information or deliver or approve any required documents, (b) because of any change by Licensee to the License Space Plans or Working Drawings not approved by Licensor, or (c) because of any specification by Licensee of materials or installations other than Licensor's standard finish -out materials. As used herein "Substantial Completion,' "Substantially Completed ' and any derivations thereof mean the Work in the License Space is substantially completed (as reasonably determined by Licensors Architect) in substantial accordance with the Working Drawings or the date that the Work would have been substantially completed but for Licensee Delay Substantial Completion shall have occurred even though minor details of construction, decoration, and mechanical adjustments remain to be completed. As used herein "business day" means regular working days, Monday through Friday, excluding Saturday and Sunday and excluding legal holidays. 7. Walk -Through; Punchlist. When Licensor considers the Work to be Substantially Completed, Licensor will notify Licensee, and within five business days thereafter, Licensors representative and Licensee's representative shall conduct a walk-through of the License Space and identify any necessary touch-up work and minor completion items that are necessary for final completion of the Work. Neither Licensor's representative nor Licensee's representative shall unreasonably withhold his or her agreement on punchlist items. Licensor shall use reasonable efforts to cause the contractor performing the Work to complete all punchlist items within 30 days after agreement thereon; however, Licensor shall not be obligated to engage overtime labor in order to complete such items. 8. Excess Costs. The entire cost of performing the Work, including design of and planning for the Work and preparation of the Working Drawings, costs of construction labor and materials, electrical usage during construction, additional janitorial services, general Licensee signage, related taxes and insurance costs, licenses permits certifications, surveys and other approvals required by applicable law, and the construction supervision fee set forth below (all of which costs are herein collectively called the 'Total Construction Costs') in excess of the Construction Allowance funded by Licensor, shall be paid by Licensee. Upon approval of the Working Drawings and selection of a contractor, Licensee shall promptly execute a work order agreement prepared by Licensor which identifies such drawings and itemizes the Total Construction Costs and sets forth the Construction Allowance, and pay to Licensor any amount by which Total Construction Costs exceed the Construction Allowance. 9. Construction Allowance If there exists no default by Licensee, Licensor shall make available a construction allowance not to exceed $160,000.00 (the "Construction Allowance") to be applied toward the Total Construction Costs during the Initial Term, as adjusted for any changes to the Work. The Construction Allowance shall not be disbursed to Licensee in cash, but shall be applied by Licensor to the payment of the Total Construction Costs annually, whereby Licensor shall credit Licensee $32,000 on October 1s' of each year, if, as, and when the cost of the Work is actually incurred and paid by Licensee. 10. Construction Management. Licensor or its affiliate or agent shall supervise the Work, make disbursements from the Construction Allowance required to be made to the contractor and act as a liaison between the contractor and Licensee. In consideration thereof Licensor or Licensors designee shall be paid a construction supervision fee equal to three percent (3%) of Total Construction Costs. The fee shall be included in Total Construction Costs and paid from the Construction Allowance. 11. Construction Representatives. Licensors and Licensee's representatives for coordination of construction and approval of change orders will be as follows, provided that either party may change its representative upon written notice to the other: City of Fort Worth_Bumett Plaza Office Space License Agreement Page 12 of 14 Licensor's Representative: Licensee's Representative: City of Fort Worth_Bumett Plaza Office Space License Agreement Page 1313114 Russ Leverman c/o Behringer Harvard Burnett Plaza, LP 801 Cherry Street, Suite 900 Fort Worth, TX 76102 Telephone: 817-332-6390 Email reverman@behringerharvard.com City of Fort Worth c/o Kevin McNamara 1515 11th Avenue Fort Worth, Texas 76102 Telephone (817) 392 2869 Email kevin.mcnamara@fortworthtexas.gov EXHIBIT "E" IMPROVEMENTS Scope of Work (Including, but not limited to these items) • Remove walls (as needed) • Construct Demising wall(s) • Remove ceiling • Relocate sprinkler heads • Remove existing flooring • Install VCT flooring • Install access door(s) • Install lighting • Install electrical main service • Install 175 KW Diesel generator (In parking garage). o Generator fuel tank will be designed to City of Fort Worth Fire Codes and hold a minimum of 300 gallons o All conduits to be run from generator location to licensees space on 31sr floor. o Include proper size Automatic Transfer Switch (Located in licensees space) o Include enunciator panel (mounted in licensee space) o Include remote fuel fill o Install proper sized conduits (as required by code) including: • Power • Control wiring to transfer switch • Wiring to enunciator panel • Install 2ea — 7.5 ton HVAC units. • Install electrical main and sub -panels as required. • Install conduits between licensees space on 31sr floor and it's existing radio room. • Include all Architectural and Structural plans, review and permitting • Licensee will approve all design plans, equipment lists and engineering work prior to commencement of construction. • Licensee, at its own expense, reserves the right to make additions to final design as necessary to ensure the space meet the requirements of the City of Fort Worth and/or its vendors and subcontractors. • Licensee, at its own expense, reserves the right to make changes to any work, already in progress. City of Fort Worth_Bumett Plaza Office Space License Agreement Page 14 of 14 M&C Review City of Fort Wort Texas City Council Agenda COUNCIL ACTION: Approved on 12/18/2012 DATE: CODE: SUBJECT: 12/18/2012 REFERENCE NO.: C TYPE: **C-26012 LOG NAME: 04BEHRINGER HARVARD BURNETT PLAZA LEASE CONSENT PUBLIC HEARING: NO Authorize Execution of a Rooftop Site License Agreement and an Office Space License Agreement with Behringer Harvard Burnett Plaza LP, in the Amount of $100,000.00 Annually for the Lease of Space at Burnett Plaza Plus $35,000 00 Annually for Utility Costs and $320,000.00 for Implementation of a Public Safety Radio Site with Credits of $160,000.00 for the First Five Years (COUNCIL DISTRICT 9) RECOMMENDATION: It is recommended that the City Council authorize the execution of a Rooftop Site License Agreement and an Office Space License Agreement with Behringer Harvard Burnett Plaza LP, in the amount of $100,000 annually for the lease of space at Burnett Plaza plus $35,000.00 annually for utility costs and $320,000.00 for implementation of a Public Safety Radio Site with credits of $160,000.00 for the first five years. DISCUSSION: On June 14, 2011, (M&C G-17303) the City Council authorized the execution of a system purchase Agreement with Motorola Solutions, Inc., for the upgrade of the City's public safety communications system. The upgrade includes the implementation of new radio equipment and supporting infrastructure at Burnett Plaza in downtown Fort Worth. The site also supports the City's legacy radio systems, and will continue to house these systems through March 2015 This site provides radio coverage in central Fort Worth and throughout much of the City. The Agreements with Behringer Harvard Burnett Plaza LP (Burnett Plaza), will replace existing leases previously authorized in 1992. The Rooftop Site License Agreement will have an annual rate in the amount of $79,600.00, and the Office Space License Agreement will have an annual rate in the amount of $20,400.00. The amount of $100,000 00 combined annual rate under the new Agreements will reduce the City's cost by approximately 59 percent. In addition to the annual rates, utility costs are estimated to be in the amount of $35,000.00 per year. Costs for space build -out, implementation of new electrical components including backup generator, and rooftop installations are estimated in the amount of $320,000.00. However the office space Agreement calls for credits totaling $160 000.00 to be applied to the annual rate during the first five years of the Agreement. As a result, the net cost to the City during the first five years will be approximately $70,000.00 annually. The selection of Burnett Plaza is based on its location and height. Staff also reviewed another downtown structure, but determined the lower cost associated with maintaining service at Burnett Plaza, coupled with the significantly lower rates under the new Agreement, warranted the recommendation for the execution of the proposed Agreements. Execution of the Agreements will allow the City to begin planning and construction of the space to house the radio equipment at this site in time for the go -live of the public safety radio system now scheduled for July 2013. TERM - Each Agreement shall be for an initial term of five years. ADMINISTRATIVE INCREASE An administrative amendment or increase may be made to each Agreement by the City Manager for an amount up to $50,000.00 and does not require specific City Council approval as long as sufficient funds have been appropriated. http://apps.cfwnet.org/council_packet/mc_review.asp?ID=17780&councildate=12/18/2012 (1 of 2) [12/27/2012 9:18:22 AM] M&C Review RENEWALS - Each Agreement shall have two options to renew for five years each providing for a potential term of up to fifteen years to align with the anticipated life of the radio communications system. Each Agreement is subject to an annual increase not to exceed two percent. This action does not require specific City Council approval provided that sufficient funds have been appropriated during the renewal terms. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Information Systems Fund and Information Systems Capital Projects Fund. TO Fund/Account/Centers FROM Fund/Account/Centers P251 539120 041030173580 $320,000.00 P168 539120 0046020 $1051000.00 Submitted for City Manager's Office by: Susan Alanis (8180) Originating Department Head: Peter Anderson (8781) Additional Information Contact: ATTACHMENTS Steve Streiffert (2221) Alan Girton (8484) http://apps.cfwnet.org/council_packet/mc_review.asp?ID=17780&councildate=12/18/2012 (2 of 2) [12/27/2012 9:18:22 AM]