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CM-2016-1187 - 9/20/2016PENDING FINAL SIGNATURE FROM OTHER PARTY Effective Date: Landlord Landlord's Address: Tenant: Tenant's Address: LEASEBACK AGREEMENT 2800 Oakmont Drive Basic Terms CITY OF ROUND ROCK, TEXAS Attn: City Manager 221 E. Main Street Round Rock, Texas 78664 DATAMAX CONSULTING CORP. , 2016 Premises: 2800 Oakmont Drive, Round Rock Texas as further described below, being all of the same property purchased on this date by Landlord from Tenant: a. Land. LOT 2, BLOCK "A", OF OAKMONT CENTRE, SECTION TWO, A SUBDIVISION IN WILLIAMSON COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN CABINET F, SLIDE 174, PLAT RECORDS OF WILLIAMSON COUNTY TEXAS; AND BEING FURTHER DESCRIBED IN THAT CERTAIN DEED TO DATAMAX CONSULTING CORP., RECORDED IN DOCUMENT NO. 2009076330 OF THE REAL PROPERTY RECORDS OF WILLIAMSON COUNTY, TEXAS (the "Land"); b. Buildings. All improvements and fixtures owned by Landlord and located on the Land (the 'Building") that are considered part of the real property, and specifically excluding any personal property of Landlord or any tenant located on the Land; c. Other Property. (i) The interest of the lessor or landlord under all leases, tenancies, rental, use, occupancy, and concession agreements covering space on the Land (hereinafter called the "Leases"); 1 cm -2011 - 1177 (ii) All of Landlord's interest in the following to the extent they relate to the ownership, use, leasing, maintenance, service, or operation of the Land or Buildings and are assignable without the consent of or payment to any other party: (i) contracts or agreements such as maintenance, service, or utility contracts, (ii) warranties, guaranties, indemnities and claims, (iii) development rights, utility capacity, governmental approvals, licenses and permits, and (iv) plans, drawings, specifications, surveys, engineering reports and environmental reports; and (iii) All and singular the rights and appurtenances pertaining to any of the foregoing, including without limitation, the right of the Landlord, if any, in and to adjacent streets, alleys, easements, rights-of-way and rights of ingress and egress thereto. Term: Eighteen (18) months from the Effective Date, subject to early termnation as provided herein. Termination Date: Eighteen (18) months from the Effective Date, or such earlier date as determined by the early termination provisions provided herein. Rent: One and No/100 Dollars ($1.00) per year, payable at the Effective Date. Security Deposit: N/A Permitted Use: Any lawful use. Definitions "Injury" means (a) harm to or impairment or loss of property or its use, (b) harm to or death of a person, or (c) "personal and advertising injury" as defined in the form of liability insurance Tenant is required to maintain. "Landlord" means Landlord and its agents, contractors (other than Tenant), employees, invitees, licensees, or visitors. "Tenant" means Tenant and its agents, contractors (other than Landlord), employees, invitees, licensees, or visitors. "Subtenant" means (a) any tenant, licensee or other occupant or party entitled to use all or any portion of the Premises as of the Effective Date under any of the Leases and (b) subject to Paragraph 18, any tenant, licensee or other occupant or party entitled to use all or any portion of the Premises after the Effective Date pursuant to a sublease or other agreement entered into with Tenant. F) Clauses and Covenants A. Tenant agrees to - 1. Lease the Premises for the entire Term beginning on the Effective Date and ending on the Termination Date, subject to the early termination provisions provided herein. 2. Accept the Premises in their present condition "AS IS". 3. Obey (a) all applicable laws relating to the use, condition, and occupancy of the Premises and (b) any requirements imposed by utility companies serving or insurance companies covering the Premises; provided, that in no event will Tenant be required to make any alterations or additions to the Premises in order to bring the Premises into compliance with applicable law. 4. Pay or cause to be paid the normal and customary costs of any maintenance, utilities, or other operating or use expenses related to or required for the Premises during the Term. 5. Maintain during the Term reasonable commercial insurance coverage for lessees. The Landlord is responsible for its own insurance on the Building and Premises. In the event of any casualty loss the Landlord shall have neither the responsibility nor the obligation to reconstruct any of the Building or other improvements on the Premises. 6. Vacate the Premises on the last day of the Term or as otherwise required herein. 7. Subject to the terms of this Leaseback Agreement, pay all ad valorem property taxes assessed against the Land, Building and other portions of the Premises during the Term. The Tenant's obligation to pay property taxes on the Land, Building, and other portions of the Premises is capped at a cumulative appraised value on the Land, Building, and other portions of the Premises $1,551,000.00. The Landlord is responsible for any property taxes to the extent such taxes are based on an appraised value in excess of $1,551,000.00. B. Tenant agrees not to— Use the Premises for any purpose other than the Permitted Use. 2. Create a public nuisance. 3. Allow a lien to be placed on the Premises that will not be released or extinguished as of the end of the Term. 4. ' Sublease any portion of the Land or Buildings or assign this Lease without the Landlord's consent. 3 C. Landlord agrees to - 1. Lease to Tenant the Premises for the entire Terni beginning on the Effective Date and ending on the Termination Date, subject to the early termination provisions as provided herein. D. Landlord agrees not to - 1. Interfere with Tenant's quiet and peaceful enjoyment and possession of the Premises as long as Tenant is not in default beyond applicable grace or cure periods. E. Landlord and Tenant agree to the following: 1. Alterations. Any additions or improvements now or hereafter located on the Premises will become the property of Landlord at the end of the Term unless removed by Tenant prior to the Termination Date. Tenant shall be entitled, but not required, to remove any additions or improvements, other than the Building, now or hereafter located on the Premises prior to the termination date. Tenant shall repair any alterations or restore the Premises to the condition existing at the Effective Date. Upon termination of this Leaseback Agreement, the Premises shall be surrendered to Landlord. 2. Abatement. Tenant's covenant to pay Rent and Landlord's covenants are independent. Except as otherwise provided, Tenant will not be entitled to abate Rent for any reason. 3. Casualty/Total or Partial Destruction. Other than as allowed under the Early Termination Option in Paragraph 19 below, neither party shall be entitled to terminate this Leaseback Agreement or abate rent as a result of fire or any other casualty nor shall either party have any duty or obligation to rebuild or restore any damaged improvements. Each party shall be entitled to receive and retain all proceeds of insurance for which they have paid in connection with any casualty damage occurring during the Term. 4. Default by Landlord/Events. Defaults by Landlord are failing to comply with any provision of this Leaseback Agreement within thirty days after written notice; provided, that if such default cannot reasonably be cured within such thirty day period but Landlord commences and thereafter diligently attempts to cure such default during and after such thirty day period, then Landlord shall be entitled to such reasonable additional period of time as is necessary to cure such default. 5. Default by Landlord/Tenant's Remedies. Tenant's remedies for Landlord's default are to sue for damages and/or injunctive relief. 6. Default by Tenant/Events. Defaults by Tenant are failing to comply within thirty days after written notice with any provision of this Leaseback Agreement; provided, that if such default cannot reasonably be cured within such thirty day period but. Tenant commences and thereafter diligently attempts to cure such default during and after such thirty day period, then Tenant shall be entitled to such reasonable additional period of time as is necessary to cure such default. 7. Default by Tenant/Landlord's Remedies. Landlord's remedies for Tenant's default are to terminate this Leaseback Agreement by written notice and/or sue for damages. 8. Default/Waiver/Mitigation. It is not a waiver of default if the nondefaulting party fails to declare immediately a default or delays in taking any action. Pursuit of any remedies set forth in this Leaseback Agreement does not preclude pursuit of other remedies in this Leaseback Agreement or provided by applicable law. Landlord and Tenant have a duty to mitigate damages. 9. Holdover. If Tenant does not vacate the Premises following termination of this Leaseback Agreement, Tenant will become a tenant at will and must vacate the Premises on receipt of notice from Landlord. No holding over by Tenant, whether with or without the consent of Landlord, will extend the Tenn. 10. Attorney's Fees. If either party retains an attorney to enforce this Leaseback Agreement, the party prevailing in litigation is entitled to recover reasonable outside attorney's fees and other fees and court and other costs. 11. Venue. Exclusive venue is in the county in which the Premises are located. 12. Entire Agreement. This Leaseback Agreement is the entire agreement of the parties related to the lease of the Building and Premises, and there are no oral representations, warranties, agreements, or promises pertaining to this Leaseback Agreement or to any expressly mentioned exhibits and riders not incorporated in writing in this Leaseback Agreement. 13. Amendment of Lease. This Leaseback Agreement may be amended only by an instrument in writing signed by Landlord and Tenant. 14. Limitation of Warranties. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY OTHER KIND ARISING OUT OF THIS LEASEBACK AGREEMENT, AND THERE ARE NO WARRANTIES THAT EXTEND BEYOND THOSE EXPRESSLY STATED IN THIS LEASEBACK AGREENfENT. 15. Notices. Any notice required or permitted under this Leaseback Agreement must be in writing. Any notice required by this Leaseback Agreement will be deemed to be delivered (whether actually received or not) five days after deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this Leaseback Agreement. Notice may also be given by regular mail, 5 personal -delivery, courier delivery, facsimile transmission, or other commercially reasonable means and will be effective when actually received. Any address for notice may be changed by written notice delivered as provided herein. A copy of any notice given to Tenant shall be given at the same time and in the same manner as the notice to Tenant to: Datamax Consulting Corp. Attn: A copy of any notice given to Landlord shall be given at the same time and in the same marmer as the notice to Landlord to: Sheets & Crossfield, P.C. Attn: Stephan Sheets 309 East Main Street Round Rock, Texas 78664 512/255-8877 Steve@sciTlaw.com 16. Abandoned Property. Landlord may retain, destroy, or dispose of any property left on the Premises at the end of the Term. 17. Leaseback; Assignment of Leases and Other Property. This Leaseback Agreement is executed simultaneously with the sale of the Premises by Tenant to Landlord and is intended to be a leaseback of the entire property and all rights, benefits and privileges thereof sold to Landlord by Tenant. In addition to leasing Tenant all of the Premises for the term, Landlord hereby assigns, transfers and conveys to Tenant all of Landlord's right, title and interest in the Leases and the other personal property described in the description of Premises herein. Tenant assumes the obligation for the performance of any and all of the obligations of Landlord under the Leases and such other personal property. Landlord shall not be entitled to receive any portion of the amounts payable under any Lease. 18. Sublease; Assignment. Tenant may not assign, sublet or agree to occupancy of the Property during the Term by any other person or entity in whole or in part without Landlord's consent. 19. Early Termination Option. Tenant may terminate this Leaseback Agreement unilaterally at any time by delivering thirty (30) days prior written notice of such early termination to Landlord as described herein. 0 20. Indemnification. (A) TENANT WILL INDEMNIFY, DEFEND, AND HOLD LANDLORD HARMLESS FROM ANY INJURY (AND ANY RESULTING OR RELATED CLAIM, ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSE, INCLUDING OUTSIDE ATTORNEY'S FEES AND OTHER FEES AND COURT AND OTHER COSTS) TO THE EXTENT RELATED TO THE NEGLIGENCE OR MISCONDUCT OF THE TENANT WITH RESPECT TO THE PREMISES. THE INDEMNITY CONTAINED IN THIS PARAGRAPH (a) IS INDEPENDENT OF TENANT'S INSURANCE, (b) WILL NOT BE LIMITED BY COMPARATIVE NEGLIGENCE STATUTES OR DAMAGES PAID UNDER THE WORKERS' COMPENSATION ACT OR SIMILAR EMPLOYEE BENEFIT ACTS, (C) WILL SURVIVE THE END OF THE TERM. (B) TO THE EXTENT ALLOWED BY LAW, LANDLORD WILL INDEMNIFY, DEFEND, AND HOLD TENANT HARMLESS FROM ANY INJURY (AND ANY RESULTING OR RELATED CLAIM, ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSE, INCLUDING OUTSIDE ATTORNEY'S FEES AND OTHER FEES AND COURT AND OTHER COSTS) TO THE EXTENT RELATED TO THE NEGLIGENCE OR MISCONDUCT OF THE LANDLORD WITH RESPECT TO THE PREMISES. THE INDEMNITY CONTAINED IN THIS PARAGRAPH (a) IS INDEPENDENT OF LANDLORD'S INSURANCE, IF ANY, (b) WILL NOT BE LIMITED BY COMPARATIVE NEGLIGENCE STATUTES OR DAMAGES PAID UNDER THE WORKERS' COMPENSATION ACT OR SIMILAR EMPLOYEE BENEFIT ACTS UNLESS OTHERWISE LIMITED OR PROHIBITED BY LAW, (C) WILL SURVIVE THE END OF THE TERM. TENANT: DATAMAX CONSULTING CORP. Its: 7 LANDLORD: CITY OF ROUND ROCK, TEXAS Its: C City of Round Rock ROUND ROCK TEXAS Agenda Item Summary Agenda Number: Title: Consider executing a Leaseback Agreement with Datamax Consulting Corporation for premises located on 2800 Oakmont Drive. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 9/16/2016 Dept Director: Cost: Indexes: Attachments: Department: Text of Legislative File CM -2016-1187 Staff recommends approval. City of Round Rock Page 1 Printed on 9/15/2016