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HomeMy WebLinkAboutContract 59612CSC No. 59612 ASSIGNMENT OF EXCLUSIVE LEASING AGREEMENT This ASSIGNMENT OF EXCLUSIVE LEASING AGREEMENT is entered into by and between ALLIANCE AIRPORT AUTHORITY, INC. (the "Authority"), a Texas industrial development corporation, and the CITY OF FORT WORTH (the "City"), a home rule municipality organized under the laws of the State of Texas. RECITALS The Authority and the City hereby agree that the following statements are true and correct and constitute the basis upon which the Authority and the City have entered into this Agreement: A. The Authority and Hillwood Realty Services Corporation ("Hillwood") previously entered into that certain Exclusive Leasing Agreement dated on or about February 5, 2015 (the "Agreement"); B. The Agreement specifically allows the Authority to assign its right, title and interest in the Agreement to the City or any instrumentality or entity created by the City; C. In January of 2015, the board of the Authority approved the assignment of all contracts related to the Alliance Maintenance Authority, including the Agreement, (AAA Resolution 2015-06) and the Fort Worth City Council approved the City's accepting of assignment of all such contracts, including the Agreement (M&C L-15748); D. Although the City and Hillwood have been operating as though the Agreement had been assigned, no assignment was executed between the City and the Authority; and E. To formally acknowledge the understanding between the parties, it is the Authority's intent to now formally assign all of its right, title and interest in the Agreement to the City, and the City is willing to accept such assignment, with such assignment to be effective as of February 5, 2015. ASSIGNMENT The Authority hereby assigns, and the City hereby accepts, all right, title and interest in the Agreement attached hereto as Exhibit "A," effective as of February 5, 2015. CITY OF FORT WORTH: TJo.�s� By: � Dana Burghdoff(J914,20 36 CDT) Dana Burghdoff Assistant City Manager ALL CEAIRPO AUTHORITY, INC. T- T- Gyna B ens its authorized representative OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX City of Fort Worth Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Mark Bro n (Jun 13, 202317:16 CDT) Mark Brown Lease Manager, Lease Management -Real Property Division Property Management Department Acknowledged and Reviewed: Thomas R. Hansen Assistant City Attorney p01 FORtq pa Attest: °'` 0�8 .1d V °annga�`n-x4°�sQa Jannette S. Goodall City Secretary M&C No. L-15748 Alliance Airport Authority Resolution No. 2015-06 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX EXHIBIT A EXCLUSIVE LEASING AGREEMENT EXCLUSIVE LEASING AGREEMENT THIS EXCLUSIVE LEASING AGREEMENT ("Agreement") is made effective as of the 51h day of February, 2015 ("Effective Date"), by and between ALLIANCEAIRPORT AUTHORITY, INC., a Texas nonstock, nonprofit industrial development corporation ("Owner") and HILLWOOD REALTY SERVICES CORPORATION, a Texas corporation ("Agent"). RECITALS WHEREAS, Owner is the owner of that certain property commonly known as Alliance Fort Worth Airport Maintenance Base and more particularly described on Exhibit A attached hereto and incorporated herein by reference (whether one or more, the "Property"); and WHEREAS, Owner desires to appoint Agent as the exclusive leasing agent for purposes of locating prospective tenants for the Property and Agent desires to accept such appointment all on the terms and conditions of the Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Grant of Leasing Agency. Owner hereby employs Agent as its sole and exclusive leasing agent to lease the Property. Agent shall use commercially reasonable efforts to secure tenants for the Property satisfactory to Owner in accordance with the provisions of this Agreement. 2. Term. Subject to earlier termination as provided in this Agreement, the term of this Agreement shall be for a period of time commencing on February 5, 2015, and ending on the last day of the 12`h month thereafter ("Initial Term"). The term of this Agreement will be automatically extended for consecutive 12 month periods beginning on the date the Initial Term expires (each a "Renewal Term"). Notwithstanding any provision in this Agreement, either party to this Agreement may terminate this Agreement at any time upon 90 days' prior written notice to the other party to this Agreement, with or without cause. 3. Acceptance of Agency and Duties of Agent. Agent hereby agrees to be the sole and exclusive leasing agent for the leasing of the Property. Agent shall use commercially reasonable efforts to lease the Property to quality tenants on such terms and conditions as Owner may from time to time establish and to promote the successful leasing of the Property in a manner consistent with commercially reasonable standards of real estate brokers. During the entire term of this Agreement, Agent shall provide the following services; (a) Within thirty (30) days after the execution of this Agreement by Owner, Agent shall develop for Owner's approval a detailed marketing plan. In addition, during the term of this Agreement, Agent shall assist Owner in formulating and administering a promotional program and shall assist Owner in the preparation of advertising and news media releases. Subject to approval by Owner, all advertising costs, signs, marketing materials, events, lunches and other marketing expenses including the cost of printing the Property's brochure and newspaper and magazine advertising shall be paid by Owner. It is agreed that no expenditure related to the marketing plan shall be committed by Agent, on behalf of Owner, without Owner's prior written approval. (b) Agent shall assist Owner in leasing the Property in accordance with the terms and conditions and the rent schedule established and/or approved by Owner, and Agent shall use a lease form approved by Owner. Agent shall assist Owner in negotiating leases in the best interests of Owner and in obtaining the final approval and execution of all leases. While Agent may negotiate a lease agreement with proposed and existing tenants, Agent shall not be empowered to bind Owner with respect to any proposed lease or lease terms, and Agent shall take no action (or inaction) to infer or imply that it is empowered to bind Owner. (c) Agent shall prepare a standard lease proposal package for Owner's approval and shall distribute the package to prospective tenants and to other real estate brokers and sales people who may know of prospective tenants. Agent shall also provide to Owner in a timely manner information concerning prospective tenants that is reasonably requested by Owner. (d) Agent acknowledges that Owner is a public entity, and as such is subject to the Texas Open Meetings Act and the Texas Public Information Act. Further, certain of Owner's contracts, agreements, expenditures, and other actions, including but not limited to leases, are subject to the approval of its governing body, in a public meeting, which approval may be withheld for any reason or no reason. By execution of this Agreement, Owner does not surrender or waive any of its governmental powers or immunities, except, to the extent permitted by law, Owner hereby waives its immunity from suit by Agent for any breach of this Agreement by Owner. 4. Compensation. (a) Owner shall pay to Agent a commission for each lease which is executed by Owner and a tenant during the term of this Agreement, Except as otherwise provided in this Agreement, such commissions shall be payable whether the tenant is procured by Agent, Owner or by any other person. Commissions shall be paid subject to all the terms and conditions set forth below: i. Commissions shall be based on the Commission Schedule attached hereto as Exhibit B. ii, Commissions shall be payable 25% upon a tenant's occupancy of the premises and 25% on the first day of every third month thereafter until the full commission is paid (for the avoidance of doubt, commissions for renewals will be payable 100% upon execution by Owner and the tenant of the applicable renewal document). (b) In the event Agent assists Owner in securing additional revenue opportunities for the Property, Agent and Owner shall in good faith negotiate a mechanism by which Owner will pay Agent additional compensation for such revenue opportunities. 2 5. Cootoeration with Other Brokers. In the case of each lease entered into with the participation of a cooperating broker, Owner shall pay (i) a leasing commission to the cooperating broker as set forth in a separate agreement to be entered into between Owner and the cooperating broker, and (ii) a leasing commission to Agent as set forth in the Commissions Schedule attached hereto as Exhibit B. 6. Insurance. Owner shall have no responsibility for providing workmen's compensation insurance or any other type of insurance for the employees or agents of Agent who are engaged in the performance of this Agreement. Agent hereby agrees to obtain the following insurance: a. Workers compensation insurance: One Million Dollars ($1,000,000) each accident, One Million Dollars ($1,000,000) policy Iimit bodily injury by disease, and One Million Dollars ($1,000,000) each employee, bodily injury by disease; b. Auto liability coverage: combined single limit for bodily injury and property damage of One Million Dollars ($1,000,000) per occurrence; and c. Professional liability insurance with a limit of not less than One Million Dollars ($1,000,000) per occurrence. Agent acknowledges that it is an independent contractor and not an employee of Owner and that Agent has no power or authority to bind Owner in any manner or fashion or to any extent. Owner shall at all times during the term of this Agreement carry Commercial General Liability insurance with respect to the Property in an amount of not less than One Hundred Million Dollars ($100,000,000). Owner shall name Agent as additional insured under such policy. Owner shall, at Owner's expense, maintain "all risk" property insurance for the Property which contains coverages and is issued by companies that are acceptable to Owner, in Owner's sole discretion. Such policy(ies) shall name Owner as the named insured and any mortgagee(s) as loss payee. Policy terms and conditions shall comply with the requirements of the applicable mortgage(s) and leases affecting the Property. Owner shall waive its right of subrogation against Agent, and the Owner's policy shall be endorsed to prohibit subrogation against Agent for any cause. Owner, on behalf of itself and its insurers, waives its rights of recovery against Agent or Agent's partners, shareholders, officers, directors and employees, for damages sustained by Owner as a result of any damage to the Property or damage to property of others or bodily injury or death arising from any risk or peril to the extent covered by any insurance policy carried by or required to be carried by Owner pursuant to the terms of this Agreement, and Owner agrees that no party shall have any such right of recovery by way of subrogation or assignment with respect to same. Owner shall notify its insurance carriers of the waivers herein contained and shall cause its insurance policies required hereunder to include an acknowledgement of and agreement to such waivers or to be endorsed, if necessary, to prevent any invalidation of coverage as a result of the waivers herein contained. 7. Personnel of Aizent. At all times and at Agent's expense, Agent shall maintain an adequate leasing staff sufficient to satisfy the reasonable needs of Owner in leasing the Property. 8. Indemnification. (a) Agent shall indemnify, defend and hold harmless Owner, and its stockholders, members, partners, directors, officers, managers, employees, agents and affiliates (each, including Owner, an "Owner Indemnified Party") from and against any and all claims, actions, suits, proceedings, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees and disbursements ("Damages") arising out of or resulting fiom the acts of Agent and its directors, officers, employees, contractors, subcontractors and agents, which constitute gross negligence, fraud, malfeasance, breach of fiduciary duty, willful, reckless or criminal misconduct, a material breach of this Agreement or any actions of Agent beyond the scope of the authority conferred upon Agent hereunder. (b) To the extent permitted by law, Owner shall indemnify, defend and hold harmless Agent and its partners, members, stockholders, managers, directors, officers, employees, agents and affiliates (each, including Agent, an "Agent Indemnified Party") from and against any claims, actions, suits, proceedings, losses, damages, liabilities, costs and expenses, including reasonable attorneys' fees and disbursements, made by third parties in connection with the performance by Agent of its duties in accordance with the terms of this Agreement, except to the extent caused by the gross negligence, or intentional misconduct of Agent, its officers, agents, employees, contractors (other than Owner or any assignee) or subcontractors. (c) The provisions of this section 8 shall survive the expiration or termination of this Agreement for a period of time commensurate with the expiration of the applicable statute of limitations period(s). 9. Termination. Notwithstanding any other provision of this Agreement, except Paragraph 8 above, this Agreement may be terminated and the rights and obligations of the parties hereto shall cease upon the occurrence of any of the following events: (a) Consummation of a bona fide sale of the Property to a new owner that is not an affiliate of Owner. (b) Agent is adjudicated as bankrupt or Agent makes an assignment for the benefit of its creditors or seeks relief from its creditors under any insolvency act. (c) . By Owner upon the failure of Agent to perform any of its obligations hereunder after thirty (30) day written notice and failure of Agent to cure such breach within such thirty day period (or, if such failure is not reasonably curable within such thirty (30) day period, such longer period as may be reasonably required to cure such failure, provided that Agent is diligently endeavoring to cure such failure). 10. Post -Termination Rights of A -gent. Provided Agent has otherwise complied with all of its obligations hereunder, Agent shall be entitled to receive a commission on any lease negotiated with a prospective tenant registered with Owner within ten (10) days following the expiration or sooner termination of this Agreement or any extension thereof. To qualify for registration, a prospective tenant must have toured the Property, must have requested and received a proposal that has been approved by the Owner, and with whom an active negotiation is underway. In order to register a tenant, Agent shall deliver to Owner in accordance with Paragraph 11 below the name of the tenant and the name, address and telephone number of the person negotiating on behalf of said tenant. If within 270 days after such expiration or termination, the premises which were the subject of such negotiations are leased to such person or entity, Agent shall be paid a commission to the same extent and upon the same terms as if such lease had been executed prior to the expiration of this Agreement. 11, Notices. All notices required or permitted by this Agreement shall be in writing and may be delivered (i) in person (by hand, by messenger or by courier service), (ii) by U.S. Postal Service regular mail, (iii) by U.S. Postal Service certified mail, return receipt requested, or (iv) by U.S. Postal Service Express Mail, FedEx or other overnight courier,and shall be deemed sufficiently given if served in a manner specified in this section to the parties at the addresses below: If to Owner: AllianceAirport Authority, Inc. 1000 Throckmorton Fort Worth, Texas Attn: Director, Housing & Economic Development Dpt. With Copy to: City Attorney City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 If to Agent: Hillwood Realty Services Corporation 13600 Heritage Parkway, Suite 200 Fort Worth, Texas 76177 Attn: Charlie Campbell With Copy to: Hillwood Realty Services Corporation 13600 Heritage Parkway, Suite 200 Fort Worth, Texas 76177 Attn: Associate General Counsel From time to time, Owner or Agent may by written notice to the other specify a different address for notice purposes. Any notice sent by regular mail or by certified mail, return receipt requested, shall be deemed given three (3) days after deposited with the U.S. Postal Service. Notices delivered by U.S. Express Mail, FedEx or other courier shall be deemed given on the date delivered by the carrier to the appropriate party's address for notice purposes. If notice is received on Saturday, Sunday or a legal holiday, it shall be deemed received on the next business day. 12. Assianment/Sale. If Owner assigns, sells or otherwise transfers its interest in any lease agreement or sells or conveys its interest in the Property, Owner agrees to make known to such assignee or purchaser any unpaid commission that is due and owing, or may become due and owing to Agent. Unless specifically transferred to such assignee or purchaser, Owner shall remain liable for any commission with respect to any lease covering any portion of the Property that is not yet earned or payable as set forth herein. Agent shall not assign its rights or obligations under this Agreement without the prior consent of Owner, which may be given or withheld in Owner's sole discretion; provided, however, Agent may, without Owner's consent, assign this Agreement to any one or more of the following persons (each of the following being referred to as a "Hillwood Assignment"): (i) H.R. Perot, Jr.; (ii) any ascendant, descendant, spouse or sibling of H.R. Perot, Jr.; (iii) any trust, family limited partnership or similar entity established primarily for the benefit of one or more persons described in subparagraphs (i) and/or (ii) above, or the estate of any such person; and/or (iv) any affiliate of the foregoing. Subject to the foregoing limitations, the covenants and agreements herein contained shall inure to the benefit of, and be binding upon, the parties hereto and their respective heirs, executors, successors, and assigns. In the event of a permitted assignment, including, without limitation, a Hillwood Assignment, Agent shall be relieved of liability or obligation under this Agreement upon the effective date of such assignment (other than liability or obligation that accrued prior to such date). Except as otherwise provided in this section, any assignment of this Agreement without the consent of Owner shall not be effective as to Owner and Owner shall not be bound thereby. Owner may assign this Agreement to the City of Fort Worth or any other instrumentality or entity created by the City of Fort Worth. 13. Entire Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof. 14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement. 15. Amendment. This Agreement may not be amended, altered or modified except by a written instrument signed by Agent and Owner. 16. Attorneys' Fees. If it becomes necessary for either party to engage legal counsel to seek a declaration of the rights of the parties or to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to recover all costs incurred, such costs to include, without limitation, reasonable attorneys' fees, including attorneys' fees on appeal and in any bankruptcy proceedings, and this provision shall survive the expiration or termination of this Agreement. 17. Benefit of Parties Only. This Agreement is between and for the benefit of the parties hereto and is not intended to benefit nor shall it be enforceable by any other person or entity including, without limitation, any other real estate broker, salesperson or finder. 18. Exhibits. The Exhibits to this Agreement are incorporated into this Agreement by this reference. 19. Authority. The individuals signing this Agreement warrant and represent that they have the authority to execute and deliver this Agreement on behalf of the entity for which they are signing and to bind such entity to the terns of this Agreement. 20. Governina Law. This Amendment shall be governed by and construed under the laws of the State of Texas, and the exclusive venue for any action relating to this Agreement shall be in Tarrant County, Texas. 21. No Consequential or Punitive Damages. Neither party shall ever be liable to the other party under this Agreement for consequential damages, punitive damages, exemplary damages or special damages. [Signatures on Following Page] IN WITNESS WDER.EOF, the parties have caused this Agreement to be executed as of the Effective Date, UWNER: AllianceAixport Authority, Inc., a Texas nonstock, nonprofit industrial development corporation By: Name: Leus,T•C h a ►� a� Title: ,j� o i Z re d� en �A j7' Ve�- AGENT: Hillwood Realty Services Corporation, a Texas corporation By: 11J11ZL---2 Name: kawl Y- awy/ Title: B,xend" Vka Pqe Wenl 0UM 00 ►.Ug IJi EXHIBIT A PROPERTY DESCRIPTION FA.r Ld 777 A .Myu+ Smxt sm i �MKY StlY�1�}= �o. RTC I�rRC111[IYT ff LK"d am YNX�+nbG I= bd% 99 Exhibit A A .Myu+ Smxt sm i �MKY StlY�1�}= �o. RTC I�rRC111[IYT ff LK"d am YNX�+nbG I= bd% 99 Exhibit A EXHIBIT B COMMISSION SCHEDULE "Base Rent" means the net rent stated in the applicable lease Owner Agrees to pay Agent commission(s) as follows: (a) For new deals, renewals, or expansions consummated solely by Agent, a commission of four and one half percent (4.50%) of the Base Rent for the tern of the lease (or renewal or expansion, as applicable) shall be paid. (b) In the event that a new deal, renewal, or expansion is consummated with the help of a properly registered cooperating broker, Agent shall be entitled to a commission equal to two and one quarter percent (2.25%) of the Base Rent for the term of the lease (or renewal or expansion, as applicable) and the cooperating broker shall receive a commission equal to four and one half percent (4.50%) of the Base Rent for the term of the lease (or renewal or expansion, as applicable). (c) The initial lease between Owner and TAESL shall not be subject to commissions payable to Agent. Any subsequent renewals of the lease will include commissions as outlined above. Exhibit B M&C Review Page 1 of 2 Official site of the City of Fort Worth, Texas CITY COUNCILAGENDA roltl COUNCIL ACTION: Approved on 1/27/2015 Create New From This M&C DATE: 1/27/2015 REFERENCE **L-15748 LOG NAME: 17AAAPROPERTYTRANSFER NO.. CODE: L TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Acceptance of the Transfer of Ownership of the Alliance Fort Worth Maintenance Facility at 2000 Eagle Parkway, Formerly Known as the American Airlines Maintenance Facility and the Assignment of All Property -Related Contracts and Leases from AllianceAirport Authority, Inc. (COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council: 1. Authorize the acceptance of the transfer of ownership of the Alliance Fort Worth Maintenance Facility at 2000 Eagle Parkway, formerly known as the American Airlines Maintenance Facility, from AllianceAirport Authority, Inc.; and 2. Accept the assignment of all property -related contracts for the operation, maintenance and management of the facility and any leases from AllianceAirport Authority, Inc., for the Alliance Fort Worth Maintenance Facility. DISCUSSION: AllianceAirport Authority, Inc. (Authority), is the owner of the Alliance Fort Worth Maintenance Facility, formerly known as the American Airlines Maintenance Facility, located at 2000 Eagle Parkway near Alliance Airport (Maintenance Facility). The Authority had leased the Maintenance Facility to American Airlines (American) under a Real Property Lease Agreement since March 1, 1990. As part of the resolution of the bankruptcy of American, the Authority, the City and American agreed that American would reject the lease, which rejection is anticipated to be on or about January 31, 2015. Upon rejection of the American lease, the Maintenance Facility property will be unencumbered. Following the rejection and termination of the lease, it is recommended that the City accept the transfer of the ownership of the Maintenance Facility and all associated property from the Authority, along with the assignment by the Authority of all property -related contracts, including but not limited to utility contracts, a Property Management Agreement with Hillwood Alliance Services, LLC, an exclusive Leasing Agreement with Hillwood Realty Services, LLC, and a Lease Agreement with Texas Aero Engine Services, L.L.C. On January 27, 2015, the Authority's board of directors will consider conveying the property to the City of Fort Worth upon termination of the lease. Staff recommends accepting ownership of the American Airlines Maintenance Facility and assignment of all property -related contracts for the property and Maintenance Facility. The property is located in COUNCIL DISTRICT 7, Mapsco 7U. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on City funds. TO Fund/Account/Centers FROM Fund/Account/Centers http://apps.cfwnet.org/council_packet/me—rcview.asp?ID=20725&cotiticildatc=l/27/2015 3/10/2023 M&C Review Page 2 of 2 Submitted for Citv Manaaer's Office bv: Fernando Costa (6122) Oriainatina Department Head: Jay Chapa (5804) Additional Information Contact: Cynthia Garcia (8187) Bette Chapman (6125) ATTACHMENTS American Airlines Maintenance Facilitv,pdf (Public) http://apps.cfwnet.org/council_packet/mc_review.asp?ID=20725&councildate=1/27/2015 3/10/2023