Loading...
HomeMy WebLinkAboutContract 44763CONTRACTCITY SECRETARY ) jai ,z_ O. 1"/ („ _> AGREEMENT BETWEEN CITY OF FORT WORTH AND THE BAC EDUCATION FOUNDATION FOR LEASE OF GUINN ELEMENTARY SCHOOL BUILDING AND OPERATION OF BUSINESS INCUBATOR This agreement (hereinafter referred to as "Agreement") is entered into by and between the City of Fort Worth, acting by and through Fernando Costa, its duly authorized Assistant City Manager, hereinafter called "City", and the Fort Worth Business Assistance Center Education Foundation, Inc., a Texas non-profit corporation, acting by and through Lucas A. Sawyer, its duly authorized Chair, hereinafter called "Foundation". WHEREAS, City is the owner of the former Guinn Elementary School Building, located at the Guinn School Complex at 600 East Rosedale, Fort Worth, Texas; WHEREAS, City desires to lease to Foundation, and Foundation desires to lease from City, the Guinn Elementary School Building for the purpose of operating a business incubator; WHEREAS, business incubators are used as a successful mechanism to start, assist and stabilize businesses and increase the probability that businesses will succeed, which, in turn, creates jobs and contributes to economic growth, as demonstrated by the success of the technology -focused business incubator, Tech Fort Worth, which is located in the former Guinn School Industrial Arts and Gymnasium Building, also located on the Guinn School Complex; WHEREAS, Foundation is a non-profit supporter of the Fort Worth Business Assistance Center ("BAC"), which is operated by the City and is located in the former Guinn Middle School Building; WHEREAS, Foundation supports the mission of the BAC, is a non-profit corporation that can seek and obtain corporate sponsorships, and represents a public -private partnership with City as reflected by its Board of Directors, which consists of major corporate representatives and small business owners who possess a broad range of business expertise and experience; WHEREAS, because Foundation already supports the mission of the BAC, provides business expertise and experience, has extensive history with supporting the mission of the BAC and is able to seek private sector sponsorships and other funding sources, it is uniquely positioned to manage and operate the proposed business incubator. NOW, THEREFORE, in consideration of the mutual covenants and obligations and responsibilities contained herein, including all Exhibits, and subject to the terms and conditions hereinafter stated, the parties understand and agree as follows: 1. PREMISES AND TERM Section 1.1 Premises. In consideration of a $1.00 annual lease fee and under the terms included herein and the commitments made herein by Fou• y, "Cify leases to OFFICIAL RECORD Lease and Operating Agreement with The BAC Education FoundationSECRETARY Page 1 of 15 Ci%TY FT. WO, TX RECEIVERTHD SE? 0 3 2013 Foundation and Foundation takes from City the following property, collectively referred to in this Lease as the "Premises": (a) the building known as the Guinn Elementary School Building, located at 600 East Rosedale, Fort Worth, Texas, and more specifically depicted in the attached and incorporated Exhibit "A"; 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 City or Foundation. Section 1.2 Term. The term of this Agreement will be effective August 30, 2013 and will end August 29, 2016, unless otherwise renewed or terminated pursuant to the terms hereof. This Agreement may be renewed, upon sixty (60) days' notice from Foundation to City, for successive terms of one year each up to a maximum of three successive one-year tennis, subject to the termination provisions of this Agreement. Four months prior to any renewal of this Agreement, the Foundation shall provide to the City a report outlining the use of and services provided by the Foundation under the terns of this Agreement. The terms of this Agreement shall continue to govern and control the relationship of the parties during the renewal periods. 2. CONDITION OF PREMISES Section 2.1 Tenant Acceptance Letter. Upon issuance by the City of a Certificate of Occupancy for the Premises, Foundation shall perform an inspection and subsequently Foundation shall promptly execute and deliver to City the Tenant Acceptance Letter attached hereto as Exhibit "B". If Foundation does not deliver the Tenant Acceptance Letter to the City within 10 business days of the issuance of the Certificate of Occupancy, the City may terminate this Agreement without any further obligation on the part of either party. Section 2.2 Surrender. Upon the expiration or termination of the Agreement, Foundation shall surrender the Premises to City in the good and clean condition as received, noinnal wear and tear excepted. 3. USE OF PREMISES Section 3.1 Use of Premises. Foundation acknowledges that the use of the Premises is as a Business Incubator (hereinafter defined). Pursuant to this Agreement, Foundation is the operator of the Business Incubator, and therefore Foundation understands and agrees that the failure to meet the requirements of for the operation of the Business Incubator is an event of default and may result in termination if not cured as provided in Section 10. Foundation shall provide any reports requested by City regarding the activities of Foundation relating to the Business Incubator. Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 2 of 15 Section 3.2 Non -Discrimination. In its use of the Premises and the operation of the Business Incubator, Foundation will not discriminate against any person because of race, religion, color, sex, national origin, age, disability, familial status, gender expression, gender identity, or transgender, and will operate the Premises and the Business Incubator thereon in full compliance with all applicable local, state, and federal laws and regulations. Section 3.3 General Use. Foundation will provide management services, and may enter into rental agreements with businesses, entities, other organizations and individuals for use of the Premises; provided, however, that any such agreements will be in accordance with and subject to the terms and conditions of the Agreement. The Foundation shall furnish sufficient personnel to conduct all its operations. Section 3.4 Signs. Foundation may place on and in the Premises such signs as Foundation deems necessary and proper in the conduct of Foundation's business; provided that all signage shall conform to the sign code of the City of Fort Worth. Section 3.5 No Hazardous or Toxic Substances. Under no circumstances during the term of this Agreement will Foundation use or cause to be used on the Premises any hazardous or toxic substances or materials, or store or dispose of any such substances or materials on the Premises. 4. MAINTENANCE; IMPROVEMENTS Section 4.1 Maintenance. (a) Except where otherwise expressly provided herein, City agrees that it will, at its sole expense, perform as determined in City's discretion all upkeep, maintenance and repair necessary to keep the Premises, and its operating systems, in good condition and in compliance with all applicable codes and regulations. (b) City will do all work and make all repairs necessary or advisable as deteiriiined in City's discretion to keep the Premises from deteriorating in value or condition and to restore and maintain the Premises in a good condition, normal wear and tear excepted. (c) City 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 City's facilities. Foundation may perform additional landscaping and grounds keeping activities it deems necessary. In addition, City shall maintain air filters. Section 4.2 Liens. Foundation shall have no power to create any liens against the Premises and shall indemnify City against any and all liens imposed or attempted to be imposed against the Premises as a result of Foundation's actions. If any lien is created or filed against the Premises, Foundation, at Foundation's sole cost and expense, shall have the lien discharged within 10 days after the filing thereof, and Foundation's failure to discharge the lien shall constitute a breach of the Agreement. Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 3 of 15 Section 4.3 Ordinances; Inspection. Foundation 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 Premises or any part thereof. Foundation further agrees to maintain and police the area in order to keep the 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 Foundation to make inspection of the Premises to ascertain compliance with the terms and provisions of this Agreement. Section 4.4 Improvements to Premises. City must review and approve any proposed improvements, changes, or enhancements to the Premises ("Improvements"). All Improvements must adhere to all applicable federal, state and local ordinances. Further, City may assign a representative to oversee the construction or installation of the Improvements. Such representative shall have final authority over any proposed work relative to its conformance with City requirements. Any Improvements shall be at Foundation's sole cost and expense, unless City, in advance, agrees in writing otherwise. 5. ASSIGNMENT; SUBLETTING Section 5.1 Assignment of Agreement. Any assignment without the City's consent shall be void. Section 5.2. Subletting. Foundation may sublet portions of the Premises without City's consent provided such uses are consistent with this Agreement and Foundation submits a copy of the sublease to City within thirty (30) days of execution. Foundation will retain all rents for use towards operation of the incubator. The amount of rents collected shall be included in periodic reports to the City. Section 5.3. Sublessees. Foundation shall be responsible for developing procedures for ensuring that potential sublessees conform to criteria and standards that are consistent with the intent and use of a general business incubator. Additionally, the Foundation shall ensure that its potential tenants are not viable candidates for the Tech Fort Worth, technology -focused incubator and that it does not compete with Tech Fort Worth. Foundation agrees that Foundation's general business incubator is intended to complement the Tech Fort Worth Incubator and not compete with it. Further, all tenants shall present an image and behavior that is consistent with City standards and applicable laws. The City, in the event that a sublessee is deemed unacceptable (which is at the sole discretion of the City), may require the Foundation to not execute an initial lease or to terminate, with acceptable notice, an existing sublease. 6. BASIC UTILITY SERVICES City warrants that the Premises are served by electricity, water, gas, and sanitary sewer utilities. All charges for utility services provided to the Premises shall be paid for by City. Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 4 of 15 7. BUSINESS INCUBATOR Section 7.1 Operations. Section 7.1.1 Business Incubator on Premises. Foundation shall be responsible for developing and implementing the operation of a business incubator at the Premises for the purpose of starting, assisting, and stabilizing businesses in the City of Fort Worth ("Business Incubator"). Foundation shall have the ability, in full compliance with all applicable local, state, and federal laws and regulations, to determine the businesses assisted by Foundation. Section 7.1.2 Personnel. Foundation shall be responsible for hiring appropriate personnel required to effectively manage and operate the Business Incubator. All personnel who work on -site at the Premises shall be contracted service providers or employees of Foundation, and the salary, wages, benefits shall be the sole responsibility of Foundation. Foundation shall cooperate with City to address any reasonable objections of City to Foundation's personnel. Section 7.1.3 Meeting. Foundation shall meet periodically or as needed with the City, at City's sole discretion, to discuss the Business Incubator and any other relevant matters. Section 7.1.4 Liaison. City shall designate a primary liaison to the Foundation to serve as its primary point of contact and for communication and discussion of relevant matters. This designation shall be made in writing to Foundation, and may be changed by City from time to time, at City's sole discretion. Section 7.2 Funding. Section 7.2.1 UNTHSC Grant. The City has entered into an agreement with the University of North Texas Health Science Center (UNTHSC) for the purpose of funding economic development, job creation and technology commercialization activities ("Grant Agreement"). Conditioned upon the receipt of sufficient funds from UNTHSC pursuant to the Grant Agreement, the City shall transfer to the Foundation a lump sum in the amount of One Hundred Thousand Dollars and 00/100 ($100,000.00) upon the execution of this Agreement. Each year thereafter for so long as this Agreement is in effect, and conditioned on receipt of sufficient funds from UNTHSC pursuant to the Grant Agreement, the City will transfer One Hundred Thousand Dollars and 00/100 ($100,000.00) to Foundation, to be dispersed in four quarterly installments in the amount of Twenty-five Thousand Dollars and 00/100 ($25,000.00) beginning in January 2014. The funds transferred from the City to Foundation under this Section 7.2.1 shall collectively be referred to herein as the "Grant Funds." Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 5 of 15 Foundation shall use the initial installment of the Grant Funds for start-up expenses for the Business Incubator. All other installments of the Grant Funds shall be used by the Foundation for direct expenses related to the Business Incubator. Foundation shall be responsible for all costs related to the Business Incubator that are not covered by the Grant Funds. Foundation shall pursue and retain private sector sponsorships and other funding sources for the Business Incubator costs. Section 7.2.2 Reports. Foundation shall provide quarterly general reports and an annual report to the City, in the foiinat and containing all infoiination specified by the City. Such reports shall include, but not be limited to, the number of companies in the incubator, teiins and duration of subleases, basic client company information, entrance and exit criteria, training and support services provided or referred, number of companies graduated, jobs created, jobs retained, financial infoiiriation regarding operations, and other reasonable information determined in City's sole discretion. Foundation shall also provide to City detailed quarterly reports on the expenditure of the Grant Funds, as well as provide to City any documentation and records reasonably required to verify expenditure of Grant Funds. Section 7.3 Audit. City and Foundation agree that, until the expiration of three (3) years after the termination of this Agreement, City shall have access to and the right to examine any directly pertinent books, documents, papers, subleases, agreements and records of the Foundation involving transactions relating to this Contract. City reserves the right to perform an audit of Foundation's operations and finances pertaining to this Agreement at any time during the term of this Contract. Foundation agrees to allow access to all pertinent materials. If such audit reveals a questioned practice or expenditure, such questions must be resolved within 15 business days after notice to Foundation of such questioned practice or expenditure. If questions are not resolved within this period, City reserves the right to withhold further funding under this and/or future contract(s) with Foundation. IF AS A RESULT OF ANY AUDIT IT IS DETERMINED THAT FOUNDATION HAS FALSIFIED ANY DOCUMENTATION OR MISUSED, MISAPPLIED OR MISAPPROPRIATED GRANT FUNDS OR SPENT GRANT FUNDS ON ANY INELIGIBLE EXPENDITURES, FOUNDATION AGREES TO REIMBURSE CITY THE AMOUNT OF SUCH MONIES PLUS THE AMOUNT OF ANY SANCTIONS, PENALTY OR OTHER CHARGE LEVIED AGAINST CITY BECAUSE OF SUCH ACTIONS. 8. INDEMNITY AND INSURANCE; INDEPENDENT CONTRACTOR Section 8.1 Indemnification. FOUNDATION COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, 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, Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 6 of 15 DIRECTLY OR INDIRECTLY, THE LEASING, OCCUPANCY, USE, CONDITION AND/OR MAINTENANCE OF THE PREMISES AND ANY AND ALL ACTIVITIES CONDUCTED THEREON, OR IN CONNECTION WITH THE ACTS OR OMISSIONS OF FOUNDATION, 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 CITY FROM AND AGAINST ANY AND ALL INJURY OR DAMAGE TO SAID PREMISES OR ANY OTHER PROPERTY OF CITY, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE LEASING, OCCUPANCY, USE, CONDITION AND/OR MAINTENANCE OF THE PREMISES. Section 8.2. Liability Insurance. Foundation shall at all times during the teiiu 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 City as an additional insured, as its interests may appear (ATIMA). Foundation shall furnish to City 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 City. City may, at its option, also require Foundation 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 City. Section 8.3. Insurance for Contents of Buildings. Foundation shall be responsible for maintaining any policy of insurance that will insure against loss of property owned by Foundation that is located on the Premises. Said insurance shall waive any right of subrogation in favor of City. Section 8.4. Fire and Extended Coverage: Boiler and Machinery Coverage. City shall maintain a policy of fire and extended coverage insurance to cover the structures and mechanical systems included in the Premises and those structures immediately adjacent thereto. Such insurance policies shall be for full replacement value. Said insurance shall waive any right of subrogation in favor of Foundation. Section 8.5. Hazardous Use. Foundation will not permit the 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 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 Premises in the proper and ordinary conduct of Foundation's business for the purposes set forth herein shall not be considered in violation of this Section. Section 8.6 Independent Contractor. It is expressly understood and agreed that Foundation shall perform its obligations and responsibilities hereunder as an independent contractor and not as an officer, agent, representative or employee of the City; that Foundation Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 7 of 15 shall have exclusive control of and the exclusive right to control the details of its obligations and responsibilities and all persons performing same; that Foundation 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 City and Foundation and that nothing herein shall be construed as creating a partnership or joint enterprise between City and Foundation. 9. CASUALTY EVENT Section 9.1. 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 Premises, or (3) any other act, condition or event, in any case not due to the negligence or breach of this Agreement by Foundation and resulting in needed repairs, replacement or other expenditure to the Premises that would require more than sixty (60) days for completion. (b) If the Premises are the subject of a substantial casualty, Foundation shall give immediate notice to the City and to Foundation's casualty insurance provider. Foundation shall follow all required procedures to file a claim(s) for the damage caused by the casualty event, and shall assign any and all proceeds for damage to or replacement costs for the building on the Premises to City received as a result of the casualty event. Foundation will have the option, exercisable by written notice given to City within ninety (90) days after the occurrence of such substantial casualty, to teiininate this Agreement 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 Agreement 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 Agreement term and Foundation shall have no obligation to make any expenditure in connection with such substantial casualty or the results thereof, unless Foundation's continued occupancy requires such expenditure. (c) If Foundation does not give notice as specified in Subsection (b) or waives its right to terminate, City at its sole discretion may proceed to repair, restore, and rebuild the Premises to its former condition within one hundred eighty (180) days from the date of such damage; provided, however, that City will be under no obligation to expend any amount on rebuilding or repairing the Premises in excess of the amount of insurance proceeds actually received by City. (d) If City chooses not to rebuild or restore the Premises, the Agreement will terminate. Such choice shall be made by written notice to Foundation within ninety (90) days after the occurrence of such substantial casualty. Section 9.2. Minor Casualty. The term "minor casualty" shall be defined in like manner as "substantial casualty" in Section 9.1 except that the length of time for repairs, replacements or other expenditures (the "needed repairs") to the Premises is less than sixty (60) days. If the Premises are the subject of a minor casualty, Foundation shall give immediate notice to the City Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 8 of 15 and to Foundation's casualty insurance provider. Foundation shall follow all required procedures to file a claim(s) for the damage caused by the casualty event, and shall assign any and all proceeds for damage to or replacement costs for the building on the Premises to City received as a result of the casualty event. If there are insurance proceeds available to the City in amounts sufficient to cover the needed repairs, City 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, City shall have no obligation to make such repairs until either (1) it receives sufficient funds from Foundation to cover the uninsured needed repairs or (2) Foundation 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, Foundation or City may terminate this Agreement. 10. DEFAULT AND TERMINATION. 10.1 Failure to Begin the Business Incubator. If Foundation fails to begin the Business Incubator, which for purposes of this Agreement shall the Foundation shall have executed a sublease with one anchor business tenant and at least one business incubator tenant, within seven (7) months of the execution of this Agreement, City may terminate this Agreement upon written notice to Foundation, without further warning or opportunity to cure, and with no penalty or liability to City, and Foundation shall vacate the Premises. 10.2 Failure to Submit Reports. If Foundation fails to maintain all records and documentation as required herein, or fails to submit any report or documentation required by this Agreement, or if the submitted report or documentation is not in compliance with this Agreement as determined by City, City will notify Foundation in writing and Foundation will have 15 calendar days to cure the issue of non-compliance. If Foundation fails to cure within such time, City shall have the right to teiininate this Agreement effective immediately upon written notice of such intent with no penalty or liability to City, and Foundation shall vacate the Premises immediately. 10.3 In General. Subject to Sections 11.1 and 11.2, and unless specifically provided otherwise in this Agreement, Foundation shall be in default under this Agreement if Foundation breaches any term or condition of this Agreement. In the event that such a breach remains uncured after 30 calendar days following written notice by City (or such other notice period as may be specified herein), or if Foundation has diligently and continuously attempted to cure following receipt of such written notice but reasonably required more than 30 calendar days to cure, as determined by both parties mutually and in good faith, City shall have the right to elect, in City's sole discretion, (i) to terminate this Agreement effective immediately upon written notice of such intent to Foundation or (ii) to pursue any other legal remedies available to City. 10.4 No Funds Disbursed while in Breach. Foundation understands and agrees that no Grant Funds will be paid to Foundation until all defaults are cured to the satisfaction of City. Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 9 of 15 10.5 Rights of City Not Affected. Termination shall not affect or terminate any of the existing rights of City against Foundation, or which may thereafter accrue because of such default, and this provision shall be in addition to any and all other rights and remedies available to City under the law. Such termination does not terminate any applicable provisions of this Agreement that have been expressly noted as surviving the terror or termination of this Agreement. 10.6 Waiver of Breach Not Waiver of Subsequent Breach. The waiver of a breach of any term, covenant, or condition of this Agreement shall not operate as a waiver of any subsequent breach of the same or any other term, covenant or condition hereof. 10.7 Termination for Cause. 10.7.1 City may teiuninate this Agreement in the event of Foundation's default, inability, or failure to perform subject to notice, grace and cure periods. In the event City terminates this Agreement for cause, all Grant Funds paid to but not expended by Foundation pursuant to this Agreement shall be immediately rescinded and Foundation shall have no further right to such funds and any Grant Funds already paid to Foundation must be repaid to City within 30 days of teiniination. Failure to repay such Grant Funds will result in City exercising all legal remedies available to City under this Agreement. 10.7.2 Foundation may terminate this Agreement if City does not provide the Grant Funds substantially in accordance with this Agreement. 10.8 Termination for Convenience. In addition to any other provisions of this Agreement governing rights of termination, City or Foundation shall have the right at any time during the term of this Agreement, for any reason, to teiiirinate this Agreement on no less than three (3) months' notice, by written notice to the other party. In the event of termination under this Section, all Grant Funds paid to Foundation but unexpended by Foundation are subject to repayment to City. 10.9 Dissolution of Foundation Terminates Agreement. In the event Foundation is dissolved or ceases to exist, this Agreement shall terminate. In the event of termination under this Section, all unexpended Grant Funds are subject to repayment and/or City may exercise all of its remedies under this Agreement. 10.10 Vacation of Premises Upon Termination. In the event of termination of this Agreement, Foundation shall vacate the Premises immediately. Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 10 of 15 11. 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 Foundation: Lucas A. Sawyer — FW BAC Board Chair VP; Commercial Lending & Chief Deposit Officer 500 Main St. Ft Worth, TX 76102 (817) 303-1207 Phone (817) 303-1206 Fax (b) If to City: With a copy to: City Manager City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 City Attorney City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 or at such other addresses or persons as Foundation or City, respectively, may designate in writing by notice pursuant to this Section 11. 12. QUIET ENJOYMENT Section 12.1. Ouiet Eniovment. City covenants that if and so long as Foundation performs the terms, covenants, and conditions required on Foundation's part by this Agreement, Foundation shall peaceably and quietly have, hold and enjoy the Premises for the term of this Agreement, subject to the provisions of this Agreement. Section 12.2. Title Warranty. City warrants and represents that City has good and marketable title to the real property of which the Premises foiiu a part, free and clear of all liens and encumbrances. 13. MISCELLANEOUS PROVISIONS Section 13.1. Written Modification. This Agreement cannot be changed or terminated orally, but only by an instrument in writing signed by both parties. Section 13.2. Access to Premises. City may enter the Premises at any reasonable time or reasonable notice to Foundation for the purpose of inspection and to repair the Premises as required herein. Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 11 of 15 Section 13.3. Captions. The captions in this Agreement are included for convenience only and shall not be taken into consideration in any construction or interpretation of this Agreement or any of its provisions. Section 13.4. Partial Invalidity. If any provision of this Agreement, or the application thereof to any person or circumstances, shall to any extent be held invalid or unenforceable, the remainder of this Agreement, 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 Agreement shall be valid and shall be enforced to the fullest extent permitted by law. It is further the intention of City and Foundation that if any provision of this Agreement 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 13.4. Waiver of Immunity. If Foundation is a charitable association, corporation, entity, or individual enterprise, has or claims an immunity or exemption (statutory or otherwise) from and against liability for damage or injury to persons or property, Foundation hereby expressly waives its rights to plead defensively such immunity or exemption as against City. Section 13.5. Removal of Personal Property. Upon termination of this Agreement for any reason, Foundation shall have the right to remove from the Premises all personal property of Foundation, but may not remove improvements, alterations, or fixtures which may not be removed without structural damage to the Premises. Section 13.6. Venue. Venue of any action brought under this Agreement shall be in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. Section 13.7. Entire Agreement. This Agreement constitutes the entire agreement of the City and Foundation and it supersedes any prior oral or written agreements concerning the Premises. [SIGNATURES ON FOLLOWING PAGE.] Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 12 of 15 y b the P arties to be effective as of August 30, 2013 ("Effective This Agreement is executed Date"). CITY: CITY OF FORT WORTH 5i-4 L Fernando Costa Assistant City Manager ATTEST City APPROVED AS LEALITY ssistant City Atto TO FORM AND FOUNDATION: FORT WORTH BUSINESS ASSISTANCE CENTER EDUCATION FOUNDATION, INC., a Texas no rofitco oration B awF�►- Name: 1 t/u fj Title: CN Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 13 of 15 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Exhibit "A" Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 14 of 15 EXHIBIT "B" TENANT ACCEPTANCE LETTER This declaration is hereby attached to and made part of the Agreement between City of Fort Worth (as Landlord) and The BAC Education Foundation (as Tenant) for the Lease of the Guinn Elementary School Building and Operation of Business Incubator dated as of August , 2013. The undersigned, as Tenant, hereby confiuiiis as of the day of the following: 1. Tenant has accepted possession of the Premises on currently able to occupy the same. and is 2. Tenant accepts the 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 City as to the condition of the premises or their suitability for the purposes intended. 3. As of the date hereof, Landlord has fulfilled all of its obligations under the Lease. 4. The Lease is in full force and effect and has not been modified, altered, or amended, except pursuant to any instruments described above, if any. TENANT: THE BAC EDUCATION FOUNDATION By: Name: Title: Lease and Operating Agreement with The BAC Education Foundation, Inc. Page 15 of 15 COUNCIL ACTION: Approved on 6/4/2013 mac DATE: 6/4/2013 REFERENCE L-15561 NO.: LOG NAME: CODE: L TYPE: NON- PUBLIC CONSENT HEARING: SUBJECT: Authorize Lease and Operating Agreement with The BAC Education Foundation, Inc., to Manage and Operate the Newly Renovated Former Guinn Elementary School Building Located at 600 East Rosedale as a Business Incubator (ALL COUNCIL DISTRICTS) Official site of the City of Fort Worth, Texas 17BAC-ED-FOUNDATION- LEASE-OPERATING AGREEMENT NO RECOMMENDATION: It is recommended that the City Council: 1. Authorize the execution of a three-year Lease and Operating Agreement with options to renew annually for three additional consecutive years with The BAC Education Foundation, Inc., in the amount of $1.00 per year for the purpose of managing and operating a business incubator in the newly renovated former Guinn Elementary School Building located at 600 East Rosedale; and 2. Authorize a transfer to The BAC Education Foundation, Inc., in the amount of $100,000.00 in grant funds available through the City's Agreement with the University of North Texas Health Science Center for the purpose of economic development, job creation and technology commercialization activities, M&C C-25800, and specifically for start-up capital for the business incubator. DISCUSSION: On December 6, 2011, (M&C C-25334) the City Council authorized the execution of a construction contract with Prime Construction Company in the amount of $709,000.00 plus the amount of $140,000.00 in contingency for the interior renovation of the former Guinn Elementary School Building. The renovation is completed. The building is now being proposed for use as a business incubator that would be managed and operated by The BAC Education Foundation, Inc. (The Foundation). Business incubators are used as a successful mechanism to start, assist and stabilize businesses. They increase the probability that businesses will succeed. Successful businesses, in - turn, create jobs and contribute to economic growth, as demonstrated by the success of the technology -focused business incubator, Tech Fort Worth, which is located in the former Guinn School Industrial Arts and Gymnasium Building. The City's component of the Fort Worth Business Assistance Center (BAC) is part of the Housing and Economic Development Department. It is located in the former Guinn Middle School Building, along with other business support organizations that provide business training, counseling and financing. Additionally, The Foundation is a non-profit component to the BAC. The Foundation supports the mission of the BAC and its non-profit status allows it to seek and obtain corporate sponsorships. The Foundation represents a public/private partnership with the City as reflected by its Board of Directors, which consists of major corporate representatives and small business owners who possess a broad range of business expertise and experience. Since the Foundation already supports the mission of the BAC, provides business expertise and experience, has extensive history with supporting the mission of the BAC and is able to seek private sector sponsorships and other funding sources, it is uniquely positioned to manage and operate the proposed business incubator. To assist the Foundation in fulfilling its role to manage and operate the incubator, the City will lease the former Guinn Elementary School Building to the Foundation for $1.00 per year for a three-year period with an option to renew annually for three additional consecutive years for $1.00 per year. Page 1 of 3 The lease terms of the Agreement between the Foundation and the City are: The lease begins immediately upon execution of the Agreement and continues for three -years, with three one-year renewal terms exercisable by the City; The Foundation will use the leased building as a business incubator and will sublease offices within the facility to its clients to support their growth and development; The Foundation will retain all sublease revenue generated by clients; The City will cover building utilities, maintenance, security, janitorial, insurance and any taxes, if any, imposed on the property using existing the University of North Texas Health Science Center (UNTHSC) grant funds available; there will be no new impact to the general fund; and Either party can terminate the lease for cause or convenience and shall provide a 90 day notice of intent to terminate. The operating terms of the Agreement between the Foundation and the City are: The City will transfer to the Foundation a lump sum in the amount of $100,000.00 in UNTHSC grant funds upon execution of the Agreement as incubator start-up capital; The City will transfer $100,000.00 in UNTHSC grant funds each subsequent year to the Foundation, with City Council approval through a Mayor and Council Communication and contingent upon grant fund availability. The annual transfer of UNTHSC grant funds will be dispersed in four quarterly installments in the amount of $25,000.00 beginning in January 2014 and each subsequent January to help subsidize incubator operations; The Foundation will pursue and retain private sector sponsorships and other funding sources identified to help offset incubator operating costs; The Foundation shall be responsible for generating sufficient funds to cover the remaining costs of operating the incubator that will not be covered by the grant; The Foundation shall provide quarterly reports and an annual report to the City regarding incubator operations and shall include relevant information requested by the City (e.g. number of companies in the incubator, terms and duration of subleases, basic client company information, entrance and exit criteria, training and support services provided or referred, number of companies graduated, jobs created, jobs retained, financial information regarding operations, and other reasonable information determined by the City); The Foundation shall be responsible for hiring appropriate personnel required to effectively manage and operate the incubator; The City shall designate a primary liaison to the Foundation to serve as its primary point of contact and for communication and discussion of relevant matters; and The Foundation shall meet periodically or as needed with the City to discuss incubator operations and other relevant matters. The incubator, which is housed within the former Guinn Elementary School at 600 East Rosedale, is located in COUNCIL DISTRICT 8, but will serve Fort Worth residents in ALL COUNCIL DISTRICTS. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Grants Fund. TO Fund/Account/Centers FROM Fund/Account/Centers GR76 539120 017452286020 $100.000.00 Submitted for City Manager's Office by: Tom Higgins (6140) Page 2 of 3 Originating Department Head: Jay Chapa (8517) Additional Information Contact: William Johnson (212-2674) ATTACHMENTS BAC Location Mao.odf Page 3 of 3