This Facility Use License ("License") is made by and between the CITY OF BUDA, TEXAS, a home rule municipal corporation ("CITY"), and the BUDA ECONOMIC DEVELOPMENT CORPORATION ("CORPORATION") (collectively, “Parties” and each individually, “Party”).
WHEREAS, the CITY is the owner of the premises and improvements located in Buda, Texas, as set forth in Exhibit A, and hereinafter referred to as the "Premises;" and
WHEREAS, the CORPORATION desires to enter into this License with the CITY for the use of a portion of the Premises; and
WHEREAS, the CORPORATION intends to use the Premises for office space to carry out its economic development programs on behalf of the CITY ("Programs"); and
WHEREAS, the CITY believes the rights and obligations contemplated herein would further the objectives of all Parties by enhancing the CITY’s economy.
NOW, THEREFORE, for and in consideration of the covenants and agreements set forth herein, and other good and valuable consideration, the CITY hereby grants CORPORATION a non- assignable License to use the Premises.
The recitals set forth in the preamble hereof is incorporated herein and shall have the same force and effect as if set forth in this Section. Capitalized terms used herein shall have the meaning assigned in the preamble hereof, unless otherwise defined.
2. TERM AND CONSIDERATION
2.1 Term of License. This License shall be effective on the date executed as shown below (“Effective Date”) (and shall be for an initial term of ten (10) years from that date. At the conclusion of said term, the License shall automatically renew for an additional ten (10) year term, unless terminated in accordance with the provisions set out in Section 9 of this License. Such renewal will contain the same consideration, terms and conditions as set forth in this License unless otherwise amended by the Parties.
2.2 Consideration. Consideration by the CORPORATION is compensation provided herein. Consideration by the CITY is the provision of the non-assignable License to use the Premises by the CORPORATION.
3.1 Premises. The Premises are a portion of the City Hall complex of the CITY. Exhibit A depicts such premises and describe the areas licensed for use under this License.
3.2 Use of Premises. The CITY owns and controls the Premises, while the CORPORATION
will use the Premises for operation of the CORPORATION’s Programs. The CORPORATION understands and agrees that a portion of the Premises are for the CORPORATION’s primary use, that a portion of the Premises are for shared use by the CORPORATION and the CITY, and that the remainder of the Premises is for the CITY’s exclusive use as solely determined by the CITY, all as delineated on Exhibit A. It is understood the CORPORATION directly or through qualified contractors will use the Premises exclusively to carry out its Programs. The CORPORATION expressly agrees not to use the Premises for any other purpose without first obtaining the CITY's consent in writing. The CITY reserves the right to use any portion of the Premises for such purposes or activities not incompatible with the CORPORATION's use of the Premises hereunder.
3.3 Premises Condition. The CORPORATION shall keep the Premises in good and clean condition. The CORPORATION shall not be responsible for utilities, maintenance, or repair of the Premises, including the parking area, grounds, or landscaping. The CORPORATION shall promptly notify the CITY of any repair, defect, hazard, or problem with the Premises that may require the CITY's attention.
3.4 Furnishing Standards. The CORPORATION shall furnish the Premises with furniture and other furnishings suitable for a professional office setting that are comparable and complimentary to the furniture and furnishings put into service by the City within the same Premises.
3.5 Improvements and Fixtures. The CORPORATION shall not, without first obtaining the written consent of the CITY, or its designee, make any alterations, additions or improvements in, to, or about the Premises. All such alterations, if any, shall be made at the CORPORATION's expense and may, at the CITY's option, become the property of the CITY at the end of the License without reimbursement by the CITY. Depending on the circumstance, the CORPORATION and the CITY may agree in writing to share or appropriately allocate responsibility for the construction, repair or maintenance of an alteration, addition, or improvement installed for use in the CORPORATION’s Programs under this License.
3.6 Improper Use. The CORPORATION shall not engage in or bring onto the Premises any use or activity that violates any federal, state or local law.
3.7 Non-Profit Use. The CORPORATION expressly agrees the Premises shall only be used for government or non-profit purposes that are in compliance with its Articles of Incorporation, its By-Laws, this License and any applicable law or regulation.
3.8 Building Security. The CORPORATION expressly agrees to abide by the CITY’s building security and access policies and shall not permit unauthorized individuals from accessing the Premises.
4.1 The annual base license compensation for this License shall be $27,500.
4.2 Upon execution of this License, the CORPORATION shall pay the CITY the annual base license compensation prorated to the time period between the execution of this License and September 30, 2018.
4.3 The CORPORATION shall pay to the CITY the annual base license compensation on
October 2, 2018 for Fiscal Year 2018-2019 (October 1, 2018 through September 30, 2019).
4.4 The annual base compensation shall be subject to annual adjustment beginning October 1, 2019. Each adjustment shall be determined with reference to the Consumer Price Index presently designated as the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index for all Urban Consumers, U.S. City Average, “All Items” (1982-1984 equals 100). In the event that the statistics are not available or in the event that publication of the Consumer Price Index is modified or discontinued in its entirety, the adjustment provided for herein shall be made on the basis of an index selected by the CITY as a comparable and recognized index of purchasing power of the United States consumer dollar published by the U.S. Department of Labor or other U.S. governmental agency. In the event that the CPI Index is not published for the months required for the calculation set forth in this Section, the Parties shall utilize the Consumer Price Index for the month(s) nearest preceding the months required for such calculation.
4.5 The annual license compensation shall increase each October 1 during this License beginning October 1, 2019 by the same percentage as the percentage increase, if any, in the Consumer Price Index referenced in Section 4.4 from the most recent prior anniversary date of this License to the then current anniversary date of this License.
4.6 If there is a decline in any CPI calculation, the annual base compensation shall not decrease, rather the annual base compensation shall remain the same until the net change in the CPI has recovered above the value when the decline began.
5.1 The CORPORATION shall annually compensate the CITY for costs associated with building maintenance, building repair, utilities, janitorial services, grounds keeping, solid waste collection and similar costs (“O&M Costs”).
5.2 Upon execution of this License, the CORPORATION shall pay the CITY $12,000 prorated to the time period between the execution of this License and September 30, 2018, for O&M Costs through September 30, 2018.
5.3 The CORPORATION shall pay to the CITY the $12,000 for O&M Costs on October 2, 2018 for Fiscal Year 2018-2019 (October 1, 2018 through September 30, 2019). Likewise, the CORPORATION shall pay the CITY $12,000 on October 2, 2019 and $12,000 on October 2, 2020, for O&M Costs for fiscal years 2019-2020 and 2020-2021, respectively.
5.4 Beginning October 2, 2021, the payment for O&M shall be adjusted annually. The CITY shall calculate the average O&M Costs for the three years beginning on the effective date of this License and notify CORPORATION of same. Such average shall constitute the O&M payment due on October 2, 2021. The CITY shall continue to calculate an average for O&M costs for a three-year period prior to each October 2 and notify CORPORATION of same. The CORPORATION shall pay all such annual O&M costs on October 2 of each year.
6.1 The CORPORATION and the CITY are contracting Parties under this License. This License does not create a partnership or joint venture nor any principal-agent or employer-employee
relationship between the Parties or any of their officials, officers, employees, agents, representatives or contractors.
6.1.1 The Parties understand and agree each Party shall be responsible for its respective acts or omissions and shall in no way be responsible to or for the other Party or the other Party's officials, officers, employees, agents, representatives or contractors.
6.1.2 The CORPORATION shall use its own employees or qualified contractors. CORPORATION employees shall be under the exclusive supervision and control of the CORPORATION.
6.2 Each Party shall not receive any compensation or benefits from the other except as may be described herein.
6.3 The CITY and CORPORATION understand and expressly agree that, in all things relating to this License, the CITY and the CORPORATION are performing a governmental function, as defined by the Texas Tort Claims Act. The Parties hereby agree that each Party enter into this License each as a governmental entity for the purpose of performing a governmental function. Nothing in this License modifies or waives any sovereign immunity, lien or indemnity prohibition, defense, or limitation of liability enjoyed by the CITY or CORPORATION, its officials, officers, employees, agents, representatives or contractors.
7.1 Insurance. For the term(s) of this License, the CORPORATION and CITY shall be adequately insured.
7.2 No Indemnification. The Parties expressly agree that neither Party shall have the right to seek indemnification or contribution from the other Party for any losses, costs, expenses, or damages directly or indirectly arising, in whole or in part, from this License.
7.3 No Waiver of Governmental Immunity. Nothing in this License shall be construed to waive any immunities from suit or liability enjoyed by either the CORPORATION, the CITY or their officials, officers, employees, representatives or agents. Nothing herein shall be construed as consent to suit by either Party.
8.1 The Parties shall promptly advise each other in writing of any claim or demand against the CITY and/or the CORPORATION related to or arising from the CORPORATION's use of the Premises or from a condition, activity, or hazard on the portion of the Premises for the CORPORATION’s use under this License.
8.2 Each Party understands and agrees it will cooperate with the other Party in any investigation, as applicable and appropriate, of any accidents, claims, or occurrences involving use of the Premises by the CORPORATION, or any activity on or condition of the Premises.
9.1 Termination by Mutual Consent. The Parties may terminate this License upon such terms as they may agree in writing.
9.2 Termination by Either Party. It is further understood and agreed that either Party may terminate this License by providing the other Party written notice during the dates of March 1 through April 30. Any such notice shall become effective twelve (12) months after the date of the written notice.
9.3 Termination by CITY. If the CORPORATION ceases to use the Premises for the purposes herein contemplated for more than six (6) continuous months, or if either Party defaults in any of its obligations under this License and fails to correct such default within thirty (30) days written notice, the other Party may terminate said License by written notice. In such an event, all rights of the CORPORATION to use the Premises shall then terminate at the conclusion of such thirty (30) day time period.
9.4 Force Majeure. Neither Party to this License will be liable for failure to comply with any provision of this License when such failure is caused by an event of war, fire, earthquake, flood, strike, any law, rule, regulation or act of governmental authority, or any other act, event, cause or occurrence not within a Party's reasonable control and rendering that Party unable to perform its obligations. The Party so affected by such event as soon as is practicable shall notify the other Party in writing.
10.1 Assignments and Subletting. The CORPORATION shall not assign this License nor rent the Premises or any part thereof without the prior written consent of the CITY, except the CORPORATION may grant permission for the use of the Premises consistent with the purposes of this License, but such permission shall not impair or diminish the rights of the CITY hereunder. The CITY shall have the right to refuse any such permission or CORPORATION if the CORPORATION authorizes a use not contemplated by this License.
10.2 Liens and Encumbrances. CORPORATION shall not give nor permit any liens or encumbrances on the Premises, including but not limited to the facilities, buildings and improvements. Upon termination of this License, CORPORATION shall peacefully surrender such Premises to the CITY free of any liens or encumbrances.
10.3 Inspections. The CITY and its agents shall have the right to enter the Premises at all reasonable times, for the purpose of inspecting, maintaining and providing general upkeep of same and determining compliance with the provisions of this License.
10.4 Compliance with Laws. The PARTIES shall observe and comply with all applicable federal, state and local law, codes and ordinances.
10.5 Survival. Each Party shall remain obligated to the other under all clauses of this License that expressly or by their nature extend beyond the expiration or termination of this License.
10.6 Amendment. The Parties may amend this License or the Exhibit A at any time by mutual consent. Unless otherwise provided herein, this License may be amended only by written instrument duly executed on behalf of each Party.
10.7 Complete License. This License constitutes the entire understanding between the Parties relating to the provisions and conditions of the License. The Parties expressly acknowledge and warrant there exists no other written or oral understanding, agreements or assurances with respect to such matters except as are set forth herein. Unless expressly stated, this License confers no rights on any person(s) or business entity(ies) not a Party hereto. This License shall not be construed against or unfavorably to any Party because of such Party's involvement in the preparation or drafting of this License.
10.8 Governing Law. This License shall be governed by the laws of the State of Texas, its conflicts or choice of law provisions notwithstanding.
10.9 Severability. All Licenses and covenants contained in this License are severable. Should any term or provision herein be declared invalid by a court of competent jurisdiction, the Parties intend that all other terms and provisions of this License should be valid and binding and have full force and effect, to the extent practicable, as if the invalid portion was not included.
10.10 Notices. All notices required between the Parties shall be in writing and sent to the address listed below. The initial addresses of the Parties, which one Party may change by giving written notice of its changed address to the other Party, are as follows:
CITY: CITY OF BUDA, TEXAS
Attention: City Manager 000 X. Xxxx Xxxxxx Xxxx, Xxxxx 00000
CORPORATION: BUDA ECONOMIC DEVELOPMENT CORPORATION
Attention: Executive Director 000 X. Xxxx Xxxxxx
Xxxx, Xxxxx 00000
Executed this day of , 2018.
CITY OF BUDA, TEXAS
By: Xxxxxxx Xxxxxxxx, City Manager
BUDA ECONOMIC DEVELOPMENT CORPORATION
By: Xxx Xxxxx Xxxxxx, Executive Director
EXHIBIT A “PREMISES”
The License shall apply to the following rooms within the Premises: Storage 1083, Reception 1084, Office 1085, and Office 1086. Additionally, the CORPORATION will have access to common spaces within the Premises including but not limited to Lobby 1101, Restrooms, Council Xxxxxxxx 1098, Conference 1096 and 1071, Break 1069, Catering 1037, and Vending 1036 as shown on the following schematic.