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15/Oct/2018

Email info@nonprofitcenters.org if you have additional resources on this topic.

 

Space for Nursing Mothers to Pump Milk

 

From an Ask-NCN Discussion on 2/2/15

 

Hillary Brooks, David Brower Center
A subtenant ED just submitted a complaint about having to use the communal shower rooms for expressing breast milk. Having been through that not-so-fun experience myself, I have sympathy for her need for a clean, private space. Yet, I believe it is not the landlord’s legal responsibility to provide the room; it’s the employer’s.

Further, our shower rooms are actually not heavily used, they are cleaned regularly, and they are legally compliant as a private room for pumping, as she herself acknowledges. She just thinks it’s icky because multiple sweaty people use the space and it gets wet with shower water.

While it appears that this is a tenant relations issue rather than a legal one, I’m still wondering: have any of you dealt with this issue? If so, how do you have any learnings or innovative solutions to share?

 

Karen Maciorowski, CT Nonprofit Center
We have had many similar requests from guests of our Center; when we realized that all of our offices have glass doors and windows we realized, oops, poor planning! We figured having a temporary place to pump for a visitor/tenant is an important aspect of customer service. We identified an office in our space that a staff member was willing to give up for a period of time; purchased privacy screens from Walmart to block all of the glass; lock the door; and use special environmentally safe spray to spray before and after the pumping. BUT we also require that people give us notice on the time period (if not just one day visitor, but is a tenant or someone there regularly). Any tenant can borrow the privacy screens and environmental spray to set up the same in their office space. If a door does not have a lock, we have a volunteer female staff person sit outside the room for the 10 – 15 mins it takes to pump. The appreciation from the “Moms” goes a long way. However, I have no idea what the legal issues are; we simply started with a new “Mom” on staff and figured out a solution that didn’t creep her out and then extended it to visitors/tenants. She started bringing her own portable cooler with her so as not to have to use the communal fridge; then we purchased a small dorm fridge for the purpose.



21/Sep/2018

Online Resource Center

Space Usage and License Agreement – The Alliance Center

Virtual License Agreement – The Alliance Center

Coworking Membership Agreement – Nonprofit Village

Coworking Agreement – Tides

Lease Template – Hannan House
Standard Lease – Children and Family Services Center
Standard Lease – MarinSpace
Sublease Agreement – E4C
Subleasing Office Services – Tides/Thoreau Center
License Agreement – Plantory
Short Term License Agreement – East Bay Asian Local Development Corporation

Topics:

Short Term Lease Pricing
Full Term Lease Arrangements
Paid Legal Counsel to Develop Lease?


 

Short Term Lease Pricing

From an Ask-NCN Conversation, 1/7/16

 

Max Scharfenberger, Jerry Forbes Centre Foundation, 1/7/16
Good Afternoon:

A question has been posed to me by our team.

 

We will have a warehouse which will have both space that is leased long term (5 years or more) and we have requests for short term (seasonal) leases (could be as short as a month and as long as 6 months). We have a rate for the long term leased space but are undecided about the short term leased space.

 

Does anyone have experience with charging a premium or a surcharge on the short term leased space.
Our thinking is to leaning towards charging a surcharge since we cannot be guaranteed revenue from this space for the full year. We think that we can fill the space about 80-90% of the year.

 

Any advice would be greatly appreciated.
Max Scharfenberger
Manager Facility Commissioning

 

James Thomson, New Path Foundation, 1/7/16
Currently for any group leasing space shorter than the standard terms or requiring part/time usage, we do charge a premium as our experience has shown that there is often difficulty filling the remaining space (due to scheduling or timing of when it is vacant). As our rent charge is based on sq/ft of leased space plus any applicable MITU (Maintenance, Insurance, Taxes and Utilities) and common roof charges (pro-rated by amount of leased space), short term leases usually have an additional amount added to the sq/ft lease portion…the other charges stay the same.

 

Dustin Barrington, HNS Life Center, 1/7/16
We charge a small premium that covers our projected vacancy based on our projected annual expenses.

 

Robert Zeidler, The Cotton Factory, 1/7/16
That depends on how you look at it. If the space is challenged (i.e. no windows, odd shape, etc.) you may offer it as a big discount to get it rented. If they only want part of the space, what are they leaving behind? Is that rentable? Will you need to build partition walls, install electricity or plumbing, or other costly items?

My advise would be to look at what your long-term vision is for the space is. Does this new short-term lease match it (in terms of subdividing the unit, spending money on improvements, etc.). If it does, move forward. If not, it is better sitting vacant.

While a landlord will normally charge a premium for a short rental, you make look at putting it on the market at a discount to get someone in until you can find a long-term match.

 

Kerry-Lynn Wilkie, Langs @ Cambridge and North Dumfries, 1/7/16
We also charge a premium rate for those requesting a 1-2 year lease of one day or two days a week vs the full week. This rate was determined by taking the total annual lease rate (which includes common fees and business services fees) of the office and dividing by three. The reason being is that we can most likely lease an office 3 days a week with agencies interested in a lease of 1 or 2 days per week.

Not many agencies would be interested in leasing only a Friday – which has an impact on revenue. In taking this approach, we have been able to fill a shared office up to 4 days per week with up to 4 leasing ½ day per week up to 2 days per week. It is first come first served on the choice/availability of days in this shared office space.

 

Follow-up Discussion on 4/21/16

Max Scharfenberger, 4/21/16

Does anyone have any experience with offering short term leases for offices?

 

We are currently space planning and have an area that would possibly work for some short term rental office space. We are planning a number of hot desks but some of our research in the for profit world shows that a number of them have offices that can be rented for a little as a day and as long as a month or two.

 

Any insight would be appreciated.

 

Alan Ziter, NTC Foundation
There have been numerous opportunities to lease unoccupied office and studio space for short term. Usually it is for an existing tenant that needs short term space, a nearby project that is building out their space in the neighborhood but needs office space in the interim (ie a hotel management team for a hotel under construction)

Here is some information that may be helpful:

  • The benefit of doing these short term leases is only for spaces that you do not anticipate finding a long term tenant for the space so as to cover your operating costs and bring in unanticipated rent. Sometimes this is hard to determine as your dream tenant could show up tomorrow and you’ve locked up a space short term that you could have leased long term.
  • Don’t let the user make significant changes to the space that will have to be reversed at the end of tenancy.
  • We use a Venue Use Agreement rather than a lease. We usually include all the pass through expenses (utilities, property taxes, CAM) into a single monthly amount.
  • Include a damage deposit in the VUA

Let me know if you want to talk offline about this.

 

May Mui, East Bay Asian Local Development Corporation
We use a License Agreement for temporary and short term usage of our commercial spaces. Here is a copy. Hope this help you.
*See Short Term License Agreement link at top of the page*


Full Service Lease Arrangements

From an Ask-NCN Discussion, 9/10/13

 

Mary Jo Dike, COO, Foundation for a Healthier Kentucky, 9/10/13
Does anyone offer full service lease arrangements? For example, furnished offices or workstations with either included/or options for IT, telephone and various other amenities. If so, would you be willing to share your pricing structure? I know there are a million variables that can affect price, but it would be great to see how others have considered these types of arrangements.
Thank you!

 

Bruce Demartini, Thoreau Center for Sustainability San Francisco, 9/10/13
Tides, the master lease holder for the Thoreau Center, subleases its internal office spaces. We describe the spaces as executive suites with a total square footage of around 200 for $900/mo. Remember, this is San Francisco so this probably isn’t going to help you much with comparisons, but I’ve attached in this email the office services that are included in the rent; maybe that may help you.
*See Subleasing Office Services document at the top of the page.*

 

Katie Edwards, Nonprofit Centers Network, 9/11/13
Just a question for clarification purposes: Are you interested in hearing from folks with co-working models that provide all-inclusive drop-in space that use a membership model? In these situations, usually more than one person uses a particular desk or workstation. Or are you interested in more traditional office spaces with more typical lease or licensing arrangements with one designated space per user or organization? Perhaps both perspectives would be useful?

 

Let us know!

 

Mary Jo:
Both, Please! We are looking at doing a combination of “executive suite” type offices, drop-in space and project space with a design that fosters collaboration.

 

Jody Ensign, Third Street Center, 9/12/13
This must be the season for rethinking shared conference spaces and recreating mixed use performance spaces, as we at Third Street Center are doing the same thing. So all of the attachments and ideas have been very valuable.

 

First, we have three common rooms available free of charge to our tenants and a minimal fee of $10 – 25 per hour for other outside nonprofits. We also make them available for large private events such as parties and weddings at a higher rate of $50 per hour but with a $750 cleaning/damage deposit. After three years of very comfortable working relations, tenants have raised the question of some tenants using the common spaces more often and for larger events, not just meetings. The question was raised asking if these heavier users pay more so that our Common Area Maintenance fee that all tenants are charged equally, does not go up for cleaning and repairs. After much deliberation by all tenants it was agreed to not charge for the number of usage, but to charge $75 for events which have 75 people or more, to cover extra cleaning, wear and tear and bathroom supplies. So far this is working well and tenants are happy, but I do like the suggestion of charging for more than 10 hours of bookings per month. Will keep this in mind if the problem is raised again. All our rooms have free WiFi, conferencing equipment and one room has A/V equipment. We do have white boards to use and 15 large tables and 100 chairs.

 

And we also have a 4,400 sf multi-purpose/ performing space that one organization rents, made minimal improvements to the old gym space, and then books concerts and various events. We are now taking another look at how to manage this space as we feel it is underutilized and the tenant is having difficulty paying the rent.

 

We are thinking, for a wide variety of reasons, that perhaps this large of a space should have a lower rental rate than the smaller, more traditional office spaces we have. We are also looking at the possibility of Third Street Center managing the space and the current tenant could just book the space whenever he presents a concert.

 

Currently the nonprofit rental rate for the space is $300 per day or night, then extra charges for lighting and sound, necessary for productions. Large events such as private parties are charged $500 plus cleaning and any extras mentioned. If it is managed by TSC, we may have a lower rental rate of $150 for TSC tenants.

 

We are struggling with a workable operating system that allows for concerts at night but then transforms easily into a day time use for children’s drop in center, exercise classes, conferences, etc. Daytime and night time uses are not very complementary. Any thoughts?

 

And, if we hire a separate person to book outside events to keep it heavily used and as a revenue generator for TSC, do we begin by paying on a percentage of bookings, a salary, or combination? Again, any thoughts are appreciated.

 


 

Paid Legal Counsel to Develop Lease?

From an Ask-NCN Discussion May 24, 2016

Melissa Graves, Graceful Growing Together
Have nonprofit centers typically used lease templates or found pro bono legal support to create leases with tenants (especially with one or more larger anchor tenants) or is this typically a document for which centers have opted to use paid legal counsel?

 

Shelby Fox, Knight Nonprofit Center
We use lease templates that were created originally by lawyers that were on our board of directors so it was pro bono. If things stray from the template they will review it but we have never had to pay for legal counsel with contracts. I highly recommend having lawyers on your board it is very helpful.

 

Pam Mauk, Together Center
Our lease was developed by the lawyers attached to many of our nonprofit tenants years ago, along with an attorney on our board. After I became more familiar with leases I realized that it is pretty close to any template one would get anywhere, other than we reference our campus association of agencies in one section. We do update it at times with the help of a pro bono attorney.

 

Diana Higuera, Aurora Welcome Center
We used pro-bono legal counseling.

 

Kameron Hodgens, Glasser Schoenbaum Human Services Center
Our original lease was done with pro bono legal services but subsequent updates have been from a mix of pro bono and paid legal counsel.

 

Dustin Barrington, HNS Life Center
We borrowed another Center’s lease, modified it to our context and then had a lawyer look it over.

 

Peter Barrett, Ukiah United Methodist Church
Our new Nonprofit Center in Northern CA uses a Commercial Property Management firm to sit down with our new tenants and review all the lease terms. The lease is a standard template approved by the California Association of Realtors. This has worked great. They know all the legal ins and outs. They are very affordable. No lawyers are needed.

 

Karen Maciorowski, CT Community Nonprofit Alliance
We utilized the Pro Bono Partnership, a 501c3 group of lawyers across some of the largest firms that donate their time. Pro Bono connects legal hours with nonprofits. We utilized them to develop the entire nonprofit center, over $150,000 in legal costs at no price. Amazing team. I know they serve NY, CT, RI, but I wonder if they have a similar model in other states under a different name. Can’t imagine they are the only ones working on this service model. The National Council of Nonprofits might know.

 

Kim Jones, The Nonprofit Village
Nonprofit Village has lawyers on our board, but we have a separate real estate/land use firm as our pro bono counsel. Our original sub-tenant lease was designed by our landlord and was flawed in many ways. We used our counsel to renegotiate the master lease and designed a new subtenant lease that we now use. It directly correlates to some of the unique factors in our shared space. Some of the terms have been lifted from other shared space leases/templates, but we shared those with the legal team and they designed specifically for us. Just like any in-kind work that you would typically pay for, I also suggest you get a report/invoice of the hours spent over the year and have it reflected on your balance sheet.

 

Judy Lind, Kukui Children’s Foundation

We use a lease provided by our property manager and modified to our particular needs by an attorney on our board.

 

Additionally, I am attaching our Collaboration Agreement which is part of our lease. It saves a lot of problems going forward to have something like this in writing.



13/Sep/2018

Legal Status Definitions

501 (c) 2
501 (c) 3 Status for Nonprofit Centers

Online Resource Center Documents

NCN Webinar – Understanding UBIT (Unrelated Business Income Tax): What Does It Mean for Your Shared Space?
Articles of Incorporation of the United Human Services of Southeast Alaska
IRS Revenue Ruling 69-572: Tax Exempt Status for Organizations Created to Manage a Building to House Nonprofits
Multi-Tenant Nonprofit Centers and the Internal Revenue Services
Template of Nonprofit Center Objectives and Purpose for Founding Documents

Topics Below

Profit and Non-Profit Mixed Centers
Labor Law Postings
New Market Tax Credits


 

Legal Status

501 (c) 2

“IRC 501(c)(2) exempts from federal income tax corporations (as defined in IRC 7701(a)(3), “corporations” include associations) organized for the exclusive purpose of holding title to property, collecting income therefrom, and turning over the entire amount thereof, less expenses, to an organization which itself is exempt under IRC 501(a). The statutory provision exempting title-holding corporations has remained substantially the same through successive enactments beginning with section 11(a) Twelfth of the Revenue Act of 1916, in which it originated. The legislative history surrounding the original enactment of the provision makes no specific reference to the provision or to the purpose it was intended to serve. The general observation is made, however, that organizations accorded exemption in the 1916 Act were difficult to secure returns from, and that the Treasury collected little or no revenue from them. (See H. Rep. No. 922, 64th Cong., 1st Sess.) The statute has always authorized the turning over of income by title-holding corporations to any organization exempt under IRC 501(a) (or its predecessors), but we have been unable to find information indicating the numbers or kinds of exempt organizations that may have utilized title-holding subsidiaries at the time of the original enactment”


 

Profit and Non-Profit Mixed Centers

From an Ask-NCN Conversation

Mary Rose Accetturo, Clare Oasis, 9/19/13
We are considering a for profit and nonprofit tenant mix in our Center…Does anyone do this already? Need a confirmation that a for profit business can exist in a nonprofit center, if and only if, the for profit business furthers the mission of the nonprofit center?

Mike Gilbert, The Jones Center, 9/20/13
Be careful on mixing for profit and nonprofit if you are exempt from property taxes or you may lose the exemption.

Katie Edwards, The Nonprofit Centers Network, 9/20/13
Mike brings up a good point here. There could be a couple of different issues at hand here:

1. Is the organization that owns the building a 501c3? Are you worried about losing 501c3 status by creating a nonprofit center?
2. Is the property tax-exempt? This is usually handled at the state or county level, and is subject to different rules than 501c3 tax-exemption.
3. Are you concerned about paying unrelated business income tax (UBIT) on rental revenue?

I know there are some members in the network that have for-profit businesses as a part of their tenant mix. What has your experience been with these issues?

Glen H. Newby, New Path Foundation, 9/20/13
Great caution from the Canadian perspective as well. Check your CRA Objectives and Letters Patent very carefully or your charitable status may be at risk, let alone the property tax issues.

Jody Ensign, Third Street Center, 9/20/13
Third Street Center does have a for profit and nonprofit mix, but it is limited by our 501(c)3 status. We may only have 15% for profits, they pay a higher rent, more in line with the normal rental rates in town, and they need to compliment our nonprofits. A couple of examples are; we have many nonprofits that are concerned with energy efficiency and solar education/development. We have a small emerging for profit that designs solar equipment for towns and individuals. Another example is a for profit program working with young men who have just come out of rehab. Part of their training is to work with a variety of community nonprofits. They all work together hand-in-hand and are a healthy combination of organizations. And in terms of property taxes, they are billed directly for property taxes from the County.

Jonathan Spack, Third Sector New England, 9/20/13
Questions about the impact of for profit/unrelated business activities on tax exempt status can be complicated and the law isn’t settled in this area so it’s a good idea to consult an attorney with relevant expertise if you have any concerns. Having stated that caveat, I’ll also add that (1) if your U.S. property is funded by tax-exempt bonds, as ours is, you have VERY LITTLE leeway to use any of the space for non-501c3 activities; and (2) aside from that, in general a modest amount of for-profit activity, properly accounted for, carried out by a nonprofit is not going to jeopardize its exempt status. There have been published cases where even a substantial amount of for profit activity has been held to be OK.

John Powers, The Alliance Center, 9/20/13
Eco-Trust, Portland, OR, Jean Vollum Natural Capital Center http://www.ecotrust.org/ncc/

Related Conversation on Ask-NCN

Katharine Moore, The Jefferson Center for Learning & the Arts, 1/21/14
Greetings from the frigid Midwest! The Jefferson Center is a campus of historic properties established as a multiple tenant nonprofit in 1975. We have never had a tenant that wasn’t a 501 c3. We now have a vacancy and interest from a PR firm that knows us because so many of our organizations are clients. I thought I could build the case for, worst case scenario, considering the rental income from the for profit group as Unrelated Business Income and paying tax on it. When I read the IRS guidelines for unrelated business income, it excludes rent but, because it is the IRS, they have to have “exceptions.”

I have asked our Board attorney to look into it, but recalling that the majority of the centers at the conference I attended a couple of years ago have a mix of nonprofit and for-profit tenants, I wondered if anyone would share how they treat the issue. I will not use the information in any way that would call attention to a member, or the Nonprofit Centers…just curious about what must be a common issue among us and hoping there is a solution that is completely above board that would allow us to mix it up.

Mike Gilbert, The Jones Center, 1/21/14
We have three separate locations – all for nonprofit organizations. Some of these are medical clinics that serve uninsured. A local pharmacy wanted to provide services to this tenant and their clients by adding a satellite pharmacy to the building. This would impact our property tax exemption from the county. We were able to negotiate with the county and pay property tax on the area leased by the for profit corporation. It was a lot of work, but a high value to the clients served.

Secondly, we lease at far below market to our 501c3 partners, the lease on the pharmacy area is at market rate.

Jody Ensign, Third Street Center, 1/21/14
We also have both profits and nonprofits at Third Street Center, 28 nonprofits, 7 artists and 5 for profits that work collaboratively with our nonprofits. We have faced the same situation as Mike Gilbert on the property tax issue with the State and County. We are still in the middle of trying to get if figured out but basically, each nonprofit applies for a tax exemption with the state and the for profits pay the property tax. It gets a little more confusing when the County tries to figure out what percentage of for profits use all the common spaces. We are still waiting to get the final word. I am sure each County/State works a little differently so you will just need to pursue with your offices, good luck. It is a hassle, but an important one.

Katie Edwards, The Nonprofit Centers Network, 1/21/14
I just want to chime in to add a little clarity around the issue. There are two kinds of tax-exemption that most US nonprofit centers deal with – federal tax-exemption (501c3 status) and property tax exemption.

Is the Jefferson Center for Learning and the Arts run by a 501c3 nonprofit organization? Are you concerned about maintaining your 501c3 status with the IRS? You might be interested in checking out the IRS revenue ruling that several nonprofit centers have used to obtain 501c3 status in the first place, which is available here. I’m also interested in hearing if any nonprofit centers have had their 501c3 status challenged after renting to for-profit tenants.

Property tax exemption, which Mike and Jody have referred to, is dealt with at the state and local level – and is a different process in pretty much every state. Sometimes having 501c3 status is enough, but more often you have to negotiate with your state and county officials on a case by case basis. I’ve also heard that in many areas, property tax exemption is reviewed on an annual basis and can be harder to keep, as cash-strapped localities are doing everything they can to keep a strong property tax base.

Shelley White, Children and Family Services Center, Inc., 1/22/14
We currently have one for-profit tenant that leases about 2% of our total space. We do not report this as unrelated business income because rent is specifically excluded. For property tax purposes, our city/county requires us to pay tax on the proportionate share of the building that is leased to for-profit entities.

Thaddeus Squire, CultureWorks Greater Philadelphia, 1/22/14
We operate a 5,000 SF coworking space in Center City Philadelphia. We are a 501(c)(3) corporation and hold the master lease for the space. Our construct is not a sub-lease arrangement, but rather a month-to-month member licensing model, similar to a gym or sporting/social club business model. This allows us to have a mix of NPOs and for-profit/sole proprietors in our space. We have 140 members (transient + full time), and we make sure that the number of for-profit enterprises never exceed 50% of that quotient. We also require that any such businesses have a significant client service base in the NP sector. With these restrictions and legal structure, we have been able to remain exempt from Use & Occupancy tax (city) [the actual lease holder (CultureWorks) is a nonprofit), and any UBIT issues related to how we’ve defined our mission.

Katie Edwards
Shelley Hamilton of MarinSpace did some research into UBIT a few years ago and shared her findings with the community – the document is available on the Online Resource Center here: UBIT Research

Tom Olivas, Girl Scouts of Orange County
Our situation is very similar, except we have 3 for-profit tenants. We provide the county with the SF leased to for-profits (subject to audit) , and we pay property taxes on the SF of the space leased to for-profits. We pass this property tax cost and any increases due to tenant improvements to the tenant in a triple net lease or specific language in the full service gross lease.


Labor Law Postings

From Ask-NCN 3/10/17

Mariah Shell, The Alliance Center
Does anyone have any best practices for labor law postings in shared spaces? I had a tenant tell me that they’d received a notice in the mail asking if they’re compliant with labor law posting requirements and they asked if we had anything posted to comply. For shared spaces, if we have them posted would that make our tenants compliant? I’m not sure if ‘us’ posting would count for other organizations as it’s supposed to be the employer who posts. But I honestly don’t know a lot about it. What do other spaces do?

Charlene Altenhain, Glasser Schoenbaum Human Services Center
Each state may have their own requirements. That said, our organization is compliant with the labor law posting requirements, but that doesn’t protect the agencies on our campus. Each organization is responsible for meeting the requirements on their own.


 

New Market Tax Credits

From Ask-NCN 8/29/2017

Katherine Moore, The Jefferson Avenue Center
Has anyone used New Market Tax Credits to develop or expand a center? If so, would you be willing to briefly share the take-aways?

David Schrayer, Isles
We are mid-stream in that process and I’d be happy to discuss particulars with anyone off-line.
Here are the major factors to consider:
The entire process will take 1-3 years
The NMTC process is now very competitive. It is best to establish a relationship with a CDE and lender who are interested in your mission and/or focused on your area.
Projects that are shovel-ready or mostly complete will be preferred. All other sources should be identified.
The project will be underwritten like any commercial lending deal; your operating pro forma will have to show sufficient supporting income and withstand scrutiny.
Use an attorney and tax consultant who know the NMTC ropes.
The ownership structure of your center may have to change in order to avoid a “tax event” seven years after the deal closes.
Hope that helps

Alan Ziter, NTC Foundation
The NTC Foundation used New Market Tax Credits since 2005 to renovate Phase 1 and Phase 2 of our 26-building project. The pluses and minuses of the transactions are too numerous to detail in an email to the ASK-NCN, but I would be willing to have our CFO share with you the experience we have had (and still have). Please reach out directly ataziter@ntcfoundation.org

Matt Oldani, Deaconess Foundation
We are in the midst of closing a NMTC deal now. I’d be happy to share insights with anyone who desires them.
Some learnings: hire a consultant who could shop your deal as soon as possible as it may take time to find a CDE with allocations, make sure the deal is large enough to warrant the additional fees associated with NMTC compliance (ideally a deal totaling more than $5 million), and make sure all staff and the board understand the nature of NMTC’s and the process because they are complicated deals.

Katharine Moore
Very helpful as I had not heard of hiring a consultant to shop for an allocation, but rather to process the application. Thanks so much and best wishes with your project!



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