GUEST ROOM OPTION AGREEMENT BASIC AGREEMENT TERMS

Transcription

1 GUEST ROOM OPTION AGREEMENT BASIC AGREEMENT TERMS The following basic agreement terms ( Basic Agreement Terms ) are intended to summarize the principal terms of the Guest Room Option Agreement (the Agreement ) but are not intended to be all inclusive. In the event that anything contained in these Basic Agreement Terms conflict with other provisions contained in the Agreement, the other provisions of the Agreement shall control. Licensee: Guest Room Number: Effective Date of Agreement: Commencement Date of Term: Expiration Date of Term: [10 year term] Donation for Guest Room Option: Non-refundable Deposit for Guest Room Option (due upon execution of Agreement): Legacy Payment to Exercise Option to use Guest Room: Suites: 25% off published rate for home football game dates. Otherwise, rate(s) in effect on specific date(s) exercised. Standard Rooms: For the first year of the Agreement, the lower of the rate(s) in effect on specific date(s) exercised or the following Fixed Rates: (i) $299 for non-conference home football game dates, unless opponent ranked in the AP Top 25 the week of the game, then $399; or (ii) $399 for conference home football game dates. Fixed Rates are subject to change but will not increase annually by more than 2%. HCC Contact Name: Address: Phone: Licensee Contact Name: Address: Phone: Page 1 of 7

2 GUEST ROOM OPTION AGREEMENT THIS GUEST ROOM OPTION AGREEMENT (this Agreement ) is made by and between NCCD-Cain Hall Redevelopment II Inc., doing business as the Texas A&M Hotel and Conference Center ( HCC ) and, its successors and permitted transferees and assigns ( Licensee ) (collectively, the Parties ), this day of, 20 (the Effective Date ). WHEREAS, the Texas A&M Hotel and Conference Center is being constructed on the Texas A&M University campus in College Station, Texas (referred to herein as the Hotel ) and is expected to open in the Fall 2018; WHEREAS, HCC desires to provide Guest Room Options (individually, a Room Option and collectively, the Room Options ) to licensees who make an Option Donation (hereinafter defined) pursuant to this Agreement, which Room Options will provide to such licensees the option to reserve certain rooms and suites (individually, a Guest Room ) at the Hotel on a right of first refusal basis; WHEREAS, HCC has entered into an agreement with Texas A&M University ( TAMU ) to issue Room Options to licensees upon notice of payment of an Option Donation to TAMU by licensees; and WHEREAS, Licensee desires to make an Option Donation, and HCC desires to provide a Room Option under the terms set forth herein. NOW, THEREFORE, for the mutual promises herein contained, and other good and valuable consideration, the parties, intending to be legally bound, hereby agree as follows: 1. Basic Agreement Terms. The Basic Agreement Terms attached hereto are hereby incorporated herein for all purposes as if fully set forth herein. This Agreement and the instruments referred to herein embody the entire agreement and understanding among the parties relating to the subject matter hereof. This Agreement may not be amended except by an instrument, in writing, executed by the party against whom enforcement of such amendment is sought. 2. Term. Although this Agreement shall be effective as of the Effective Date, Licensee s option to exercise the right to use the Guest Room and the term of this Agreement shall not commence until the commencement date (the Commencement Date ) set forth in the Basic Agreement Terms. Licensee s option to exercise the right to use the Guest Room and the term of this Agreement shall end on the date of the expiration of this Agreement (the Expiration Date ) as set forth in the Basic Agreement Terms. 3. Grant of Room Option. Upon receipt of the Option Donation, Licensee shall receive a Room Option for a priority right to utilize the Guest Room in the Hotel in accordance with the terms and conditions set forth herein. All use of the Guest Room by Licensee shall be pursuant to policies established by the Hotel. Page 2 of 7

3 4. Option Donation. In order to secure the Room Option for the priority right to use the Guest Room as herein provided, Licensee shall make a donation to TAMU ( Option Donation ). Licensee hereby elects to (initial applicable election): pay the Option Donation in full within 90 days of the Effective Date; or Licensee s failure to pay the amounts when due hereunder will result in Licensee s forfeiture of its deposit and any payments made hereunder and the termination of the Room Option and right to use the Guest Room. 5. Location of Guest Room. The Room Option granted hereby relates to the specific Guest Room in the Hotel referenced in the Basic Agreement Terms. Licensee acknowledges that the Hotel is currently under construction and that the actual location or designation of the Guest Room may vary from that set forth in this Agreement due to, among other things, modifications in the design of the Hotel. The availability of the specific Guest Room may also vary due to maintenance or repair requirements during the term of this Agreement. In the event that the specific Guest Room contemplated hereunder is unavailable for any reason on a date upon which Licensee desires to exercise its option, HCC shall use commercially reasonable efforts to provide Licensee with a room of comparable or higher quality. 6. Room Option Rights. The Room Option granted hereby provides Licensee with a priority right to utilize the Guest Room in the Hotel during the term of this Agreement. In order to exercise such right, Licensee must contact the Hotel to reserve the Guest Room and make arrangements to pay for the Guest Room at least 45 days in advance. If Licensee does not reserve and arrange for payment for the Guest Room 45 days in advance, the Guest Room will be released into open inventory, and the Hotel may permit the use of the Guest Room by such persons and in such manner as the Hotel may determine in its sole discretion. If Licensee reserves and pays for the Guest Room on a football game date(s), then cancels the reservation less than 14 days in advance, Licensee will be charged the entire Legacy amount for the Guest Room unless the Hotel sells out on the applicable dates. For any other date(s), the Hotel s standard cancellation policy will apply. The placing of personal items in the Guest Room is not allowed because the Guest Rooms will be available to the public when the Room Option is not exercised by Licensee. HCC will not be held responsible for any lost, damaged or stolen items. 7. Additional Amenities. The Room Option granted hereby also provides Licensee with the following amenities: (a) Guest Room Door Plate. At the request of the Licensee, a door plate will be placed at the appropriate time outside the Guest Room with an inscription suitable to Licensee and HCC. Page 3 of 7

4 (b) Valet Parking. 8 th Floor Century Level Guest Room Licensees will receive one complimentary valet parking space when utilizing the Room Option. Penthouse and Suite Licensees will receive two complimentary valet parking spaces when utilizing the Room Option. (c) GRO Concierge. Licensee will receive access to a dedicated Concierge prior to and during Licensee s stay at the Hotel. 8. Possession and Use. Subject to the provisions hereof, HCC shall have the exclusive right to control the use and occupancy of the Guest Room and all other portions of the Hotel at all times during the term of this Agreement. Licensee will have no access to the Hotel and Guest Room without a valid reservation and payment of the applicable rate set forth in the Basic Agreement Terms and all applicable fees. Licensee and Licensee s guest s and invitee s use of the Guest Room and Hotel shall be subject to all of the Hotel s rules and regulations, including the check in/check out times. Licensee and Licensee s guests and invitees shall comply with all laws, policies, rules and regulations of all governmental authorities and the HCC. 9. Taxes. Licensee agrees to pay all taxes associated with entering into this Agreement and holding and exercising the Room Option. HCC and TAMU make no representation or warranty regarding the tax deductibility of the Option Donation, and Licensee is responsible for contacting a tax or legal professional to confirm the possible tax-deductible nature of the Option Donation under Internal Revenue Service rules and regulations. 10. Representations of Licensee. Licensee hereby represents and warrants as follows: (a) Licensee has read and understands the terms and conditions of this Guest Room Option Agreement; (b) Licensee is acquiring this Room Option solely for the right of first refusal to use the Guest Room in the Hotel; (c) Licensee acknowledges that the right to transfer the Guest Room and the right to assign this Guest Room Option Agreement is restricted as set forth in Section 14 herein; and (d) Licensee has not relied upon HCC or any third party s representations regarding the possible tax-deductible nature of the Room Option, and Licensee acknowledges that it is Licensee s responsibility to contact its own tax or legal professional to confirm the possible tax-deductible nature of a portion of the Room Option under Internal Revenue Service rules and regulations. 11. Disclaimer of Warranties. HCC and TAMU and each of their respective officers, agents or employees (individually, a TAMU Party and collectively, the TAMU Parties ), have not made any representation or warranty, express or implied, with respect to the Guest Room or any other portion of the Hotel or the suitability or fitness of the Hotel or the Guest Room for Licensee s use; and have not promised or agreed to undertake any modification, alteration or improvement to the Hotel or Guest Room except as herein provided. Licensee accepts the Guest Room on the Commencement Date subject to all applicable governmental laws and regulations, and all rules, policies, and regulations of HCC with respect to the use of the Guest Room and the Hotel. Accordingly, Licensee acknowledges and agrees to the following: (i) Licensee is acquiring certain Page 4 of 7

5 rights to the Guest Room AS IS, WHERE IS, AND WITH ALL FAULTS based on Licensee s own inspection and/or investigation and not in reliance on any statement, representation, inducement, promise, or agreement of the TAMU Parties, its officers, agents or employees or any other third party; (ii) no TAMU Party has made any representation as to the taxation or other financial aspects or other ramifications of this Agreement, and Licensee has relied solely upon its own investigation and the advice of Licensee s professional advisors with respect to all tax and other consequences of this Agreement and the Option Donation and other items in connection herewith; and (iii) no rights of any kind to light, air or otherwise over or under any portion of the Hotel or any other property, whether belonging to any TAMU Party or any other person, are granted to Licensee by this Agreement. The TAMU Parties have not made any representation or provided any assurances that Licensee will be eligible to attend any event which takes place on the campus of Texas A&M University or that is conducted at the Hotel during the term of this Agreement or that any events will be held. Consequently, this Agreement is not in any way dependent upon the occurrence of any events on the campus of Texas A&M University, and this Agreement shall be unaffected by and shall continue in effect regardless of the kind or number of events conducted at Texas A&M University. Texas A&M University reserves the right in its sole discretion to schedule, reschedule, postpone and/or cancel any event on the campus of Texas A&M University (including, without limitation, Texas A&M University athletic events) without resulting in liability of any TAMU Party. 12. Disclaimer of Liability. None of the TAMU Parties shall be liable or responsible for any loss, damage, or injury to any person or to any property of Licensee or Licensee s guests and invitees in or around the Hotel resulting from any cause whatsoever, including but not limited to theft and vandalism, unless due to the gross negligence or the willful misconduct of such TAMU Party. 13. Indemnification. LICENSEE ASSUMES ALL RISK WITH RESPECT TO, WAIVES ALL CLAIMS IN CONNECTION WITH, AND SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE TAMU PARTIES, FROM AND AGAINST ANY AND ALL CLAIMS AND LIABILITY ARISING FROM, ANY DEATH OF OR INJURY TO ANY PERSON, OR DAMAGE TO ANY PROPERTY WHATSOEVER: (i) OCCURRING IN THE GUEST ROOM DURING LICENSEE S USE OR OCCUPANCY OF SUCH GUEST ROOM: (ii) ARISING FROM ANY VIOLATION OF ANY PROVISION HEREOF OR ANY DEFAULT OF ANY OBLIGATION OF LICENSEE UNDER THE TERMS OF THIS AGREEMENT; OR (iii) ARISING FROM ANY ACT OR NEGLIGENCE OF LICENSEE, ITS AGENTS, CONTRACTORS, EMPLOYEES, GUESTS, OR INVITEES. LICENSEE SHALL PAY ALL COSTS, ATTORNEYS FEES, EXPENSES AND LIABILITIES INCURRED IN THE DEFENSE OF ANY SUCH CLAIMS AND ANY ACTION OR PROCEEDING BROUGHT HEREON. IF ANY ACTION OR PROCEEDING IS BROUGHT AGAINST A TAMU PARTY BY REASON OF ANY SUCH CLAIM, UPON NOTICE FROM SUCH TAMU PARTY, LICENSEE SHALL DEFEND THE SAME AT LICENSEE S EXPENSE BY COUNSEL SATISFACTORY TO SUCH TAMU PARTY AND IN CONJUNCTION WITH ADVICE FROM THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS. LICENSEE S INDEMNITY OBLIGATIONS SET FORTH ABOVE WILL BE ENFORCED TO THE FULLEST EXTENT PERMITTED BY LAW FOR THE BENEFIT OF THE APPLICABLE INDEMNITEE THEREOF, EVEN IF THE APPLICABLE CLAIM IS CAUSED BY THE ORDINARY Page 5 of 7

6 NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMNITEES, BUT WILL NOT BE ENFORCED TO THE EXTENT THAT A COURT OF COMPETENT JURISDICTION HOLDS IN A FINAL JUDGMENT THAT A CLAIM IS CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMNITIES. 14. Transfer and Assignment. The limited option to use the Guest Room established under this Agreement is granted specifically to Licensee in recognition of Licensee s Option Donation. Licensee may publish for use or occupancy on any 3 rd party website the right to reserve the Guest Room (or an actual Guest Room reservation previously made and paid for by Licensee) under the Guest Room Option on home football game date(s) only and such transfer shall be contingent upon HCC s receipt of notification of such transfer from Licensee, along with all relevant contact information for such transferee. Such transferee must make any and all payments required under this Agreement and shall be required to furnish valid identification and a valid credit card upon check-in to cover any damages or hotel charges incurred during the transferee s stay, including payment of the Licensee s applicable daily rate to the Hotel if not already paid by Licensee. Licensee may assign this Guest Room Option Agreement only by written agreement signed by Licensee and the assignee. An assignment of this Guest Room Option Agreement is only valid if done in writing and is contingent upon HCC s receipt of a copy of said written assignment and such assignee making any and all payments required under this Agreement. Neither this Agreement nor any rights, benefits or amenities associated with this Agreement may be sold, transferred or assigned either in whole or in part except in strict compliance with this Agreement. HCC shall have the right to transfer, assign, convey, pledge and encumber in whole or in part any and all of its rights under this Agreement. In the event HCC fully assigns its rights hereunder, HCC thereby shall be released from any further obligations hereunder, and Licensee shall look solely to such successor-in-interest of HCC for performance of such obligations as arise thereafter. 15. Default. The occurrence of any of the following events shall constitute a default hereunder by Licensee with or without notice: (i) Failure to pay any fees or other sums when due and payable hereunder, if the failure continues for ten (10) days after written notice thereof; or (ii) Failure to comply with or perform under any of the other provisions hereof, if the failure continues for thirty (30) days after written notice thereof. In the event of any such default by Licensee, HCC shall be entitled to (A) terminate this Agreement; and/or (B) pursue any other remedies available to HCC hereunder, at law, in equity, or otherwise. Upon termination of this Agreement, Licensee shall not be entitled to any refund of the Option Donation or payments made pursuant to this Agreement. In no event (whether by HCC s default, or otherwise) shall HCC or TAMU be liable or responsible in any way for any lost income, profits, incidental, consequential, exemplary, special or punitive damages of Licensee or any other person or entity. 16. Damage to Hotel. If any portion of the Hotel is damaged or destroyed in such a way as to materially impact the availability or condition of the Guest Room, HCC may at its election terminate this Agreement. 17. Option to Renew. Licensee shall have the option to renew this Agreement at the end of the original term upon mutually agreeable terms. To exercise this option, Licensee must request renewal terms and process information from HCC no later than 120 days prior to the Expiration Page 6 of 7

7 Date. If the parties have not entered into a new agreement for the Guest Room Option prior to the Expiration Date, the option to renew shall expire. 18. Third Party Beneficiary. Although not a party to this Agreement, TAMU is a third party beneficiary under this Agreement and shall be entitled to enforce this Agreement against Licensee and HCC. IN WITNESS WHEREOF, intending to be bound, the Parties hereto have executed this Agreement to be effective as herein provided. NCCD-CAIN HALL REDEVELOPMENT II INC. d/b/a Texas A&M Hotel and Conference Center LICENSEE (If Natural Person): By: Name: Title: Date: By: Date: LICENSEE (If Business Entity): By: Name: Title: Date: Page 7 of 7