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Res 11-08 Approving an Economic Development Agreement with the Marriott SolanaTOWN OF WESTLAKE RESOLUTION 11-08 A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS, APPROVING AN ECONOMIC DEVELOPMENT AGREEMENT WITH THE MARRIOTT SOLANA AND A FY 10-11 BUDGET AMENDMENT TO FUND SAME. WHEREAS, the Westlake Town Council, in its current Strategic flan, has identified "Hospitality Finds its Home in Westlake" as a strategic vision point and tourism development as a key result area for that vision point; and, WHEREAS, the Town of Westlake relies on sales and use taxes to support its general operations; and, WHEREAS, the Town Council desires to have new and existing businesses that maintain and grow their sales and use tax streams, which in turn, enhances the Town's financial position and sustainability; and WHEREAS, the Town Council acknowledges that the Town's Visitors Association Fund is a key component of its financial structure and that an economic development grant to the Marriott Solana hotel will help solidify and maintain that structure; and, WHEREAS, Town has an economic development policy adopted by Resolution 06-19 and that this proposed economic development agreement with the Marriott Solana meets those policy guidelines and meets the requirements of State law for municipalities to grant 380 economic development grants to businesses located in their boundaries; and WHEREAS, the Town Council finds that the passage of this Resolution is in the best interest of the citizens of Westlake. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: THAT, all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: THAT, the Town Council of the Town of Westlake, Texas, hereby approves the Economic Development Grant Agreement with the Marriott Solana attached hereto as Exhibit "A" as well as approves a budget amendment to the Town's FY 2010- 2011 Visitors Association Fund by increasing expenditures for this program by $90,000; and further authorizes the Town Manager to execute said agreement on behalf of the Town of Westlake. Resolution 11-08 Page 1 of 2 SECTION 3: If any portion of this Resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. SECTION 4: That this resolution shall become effective from and after its date of passage. PASSED AND APPROVED ON THIS 28TH DAY OF FEBRUARY, 2011. EdwAffls, Town Secretary APPROV TO Stan Lowry T rney Laur Wheat, Mayor Resolution t 1-08 Page 2 of 2 Exhibit A to Res 11-06 TOWN OF WESTLAKE RESOLUTION NO. 06-19 A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, ADOPTING AN ECONOMIC DEVELOPMENT INCENTIVE POLICY. WHEREAS, the Down of Westlake. Texas. relies upon the generation of Sales and l_ise Taxes for basic city operations: and WHEREAS. the Town of Westlake aggressively pursues sales tax producing enterprises that ntcet the Town"s high development standards:. and WHEREAS;. Chapter 12 of the Texas lax Code requires that guidelines and criteria be adopted by the Board of aldermen before enterini, into any f-,conomic Development Agreement that provides rein-thursernent of taxes: and WHEREAS- Chapter ;fit) of the Texas Local Government Code allo%%s the Board of Aldermien to create policies for economic development and any related grants car incentives. NO"', THEREFORE, BE IT RESOLVED BV THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: The above findinus are hereby found to be true and correct and are incorporated herein in its entirety. SECTION 2: The Board of Aldermen of the Town of Westlake. 'Texas• adopts the attached Exhibit A. l•oun of Westlake Economic Development Incentive Policy and directs the Tw,kn 17anager to immediate],, suhmit an Economic Development Agreement to the. Board of Aldermen consistent \%ith the terms ol'this policy. PASSED ANIS APPROVED ON THIS 8th DAY OF I41AY. 2006. ATTEST: Scott Brad cy.. ]Mayor -in DN innell. 'I'r .}`n Secretary APPRE3 I>* R10: L..: ariton :o o :�ttor-neN Trent f) Peter, ' n Mana,,er� Exhibit A to Res 11-08 EXHIBIT A Town of Westlake Economic Development Incentive Policy Section 1. General Purpose and Objectives The Town of Westlake:. Texas, is committed to the promotion and retention of high duality development in all parts of the Town as part of an overall effort to improve the quality of life for its residents. Since these oli_jectives can be served. in part. by the expansion of its commercial business. retail, and mixed use base, the Town will, on a case-bv-case basis. give consideration to providing tai: abatements, economic development grants, loans, and other incentives (collectively referred to as -Incentives") as may be allowed by Iavv as stimulation for selected economic development within the community, It is the policy of the Town that consideration will be provided in accordance with the criteria set forth in this document. Nothing within this policy shall imply or suggest that the Town is under any obligation to provide Incentives to any applicant, All applicants ("Applicants") for any Incentives shall be considered on a case- by-case. basis. Section 11. Applicability This Fconomic Development Incentive Policy (the "Policy") establishes guidelines and criteria for Incentives as allowed for by the provisions of Chapter 12 of the Texas Tax Code. and other economic grants. loans. or incentives as authorized by Chapter 380 of the -texas Local Government Cade. the: Development Corporation .Act. article 51906, Tex. Rey. Civ. Stat.. Article: III. Section 52-a of the Texas Constitution. and other applicable laws. Anv Incentive approved by the: Todyn`s Board of .Aldermen ("Hoard of Aldenrien") pursuant to the Policy must be m nwrialiaed in an agreement to be: executed and approved by the Town and applicant (the Anc_erinve Agreement"). Section Ill. Tax Abatement Criteria A. Any application for tax abatement shall be reviewed and approved or disapproved by the Board of Aldermen and, if applicable. consider the recommendations of tile. W'estlakc Development Corporation and'or the %Vcstlake 4A Corporation. In general, the: application will be considered based upon the f0110I.ying: • The -value added' to the community by the Applicant's proposed project: • The likelihood of the development of the proposed project without abatements: • The comparison of the use of abatements versus the use of other potential incentives. Exhibit A to Res 11 -08 B. Specific considerations for approving tax abatement applications will be based upon the degree to which the proposed project: • Furthers the goals and objectives of the Town as expressed in the Town -s Comprehensive Plan. Planned Development District Ordinances, and infrastructure plans-, • Impacts the "T'own's costs and ability to provide municipal services: • Impacts the local environment. housing market, and available infrastructure'. • Offers potential for long terin payback in tax and/or other revenues for the I-o-%vn*s investment. • Potentially stimulates other desirable econornic development within theTown. C. Term of the Abatement — A tax abatement may he granted for a maximum of ten Years. The term of the abatement may be granted for a lesser number of years depending upon the anticipated 'value added' to the'FoNvn. Section IV. Value of the Project The amount of` the Incentive will be determined by the Board of Aldermen based upon the merits of economic development prqect (tile -Project-), including. but not limited to. the factors referenced in paragraph 111. B. (above.) and the following specific economic considerations: 0 total capital in%estnient: 0 added emplo%ment, 0 generation of` other tax revenues. Incentives may be granted only for the additional value of eligible propertyimprovements described in the P_rqiect and listed in the executed tax abatement agreement. qualifying Target thresholds are established as expected quaing levels for abatementC! I � consideration as indicated in paragraphs A and B as tlollows: A. For Neev Businesses or Development - The Project must be reasonably expected to produce an added value of five million dollars ($5.000.000) in real and personal property improvements within the Tovvn of Westlake: or to create a minimum of 200 full- time jobs. or to generate annual sales tax revenues to the Town of at least $1 WOW B.sses or Development — The Project must be reasonably expected to produce an added value of two million dollars (S2,000,000) in real and personal property improvements within the Town, or to create a minimum of 100 full time jobs, or to generate additional annual sales tax re, enues to the Town of at least 550.000. Section V. Inspection, Verification and Incentive Modification The terms of an Incentive Aigl reement shall include the Town's right to: C11 I Exhibit A to Res 11-08 (a) require the submission of an annual certification of compliance for the property receiving an Incentive, (b) condrtet an on-site inspection of the project in each year durintio the life of the Incentive to verify compliance with the terms of the Agreement and the Policy: and (c) reduce or eliminate the Incentive if the applicant has failed to comply. ,,lith the requirements ofthe Incentive A,!,reement. Section Vl. Evaluation Upon completion of the Project. the ToNvn shall no less than annually- evaluate each Project receiving an abatement to insure compliance with the terms of the agreement. Any incidents of non-compliance will be reported to all affected taxing units. Section VII. Severability and [..imitation In the event that an\ section. clause. sentence. paragraph or any part of this Policy shall, for any reason. he adjudged by an,,' court of compctcnt jurisdiction to be invalid, such invalidity shall not affect. impair. or invalidate the remainder of the guidelines and criteria in this Policv. Section VIII. Expiration and Modification This Policy is effective upon the date of its adoption and will remain in force for two years. at which time Incentive Agreements created pursuant to its provisions will be reviewed by the Board of Aldermen to detennine w hetlier the objectives of the Policy are being achieved, rased upon that review. this Policy may be modified. renewed or eliminated. flo,,vever. ani• Incentive Contracts created pursuant to this Policy will remain in effect accordingto their respective terms without regard to any change to this Policy unless mutually agreed by the parties. Section 1X. Economic Development Grants, Loans, and Other Incentives e1.. Any application fir economic development grants. loans. and other incentives shall be reviewed and approved or disapproved by the Board of Aldermen. In the review process. the Board of Aldermen will. if applicable, consider the recommendations of the Westlake Development Corporation and,lor the Westlake 4A Corporation. Arty such economic development grants.. loans. and other incentives may come from any one or combination of the following, • Grants or loans as autltori7ed b\ Chapter >SO of the Teras Local Government Code: • The-eneral Salts and Use tares of the _I"ox\n: • Sales and 1.2se taxes collected pursuant to section 4A and/or 4B of Article 5190.6, I"er. Rev. Civ. Stat.: and/Or Exhibit A to Res 11-08 * Any other lawful source of revenue of the Town including. but not limited to. bond or other debt financing «-hick further the purpose of economic development. B, To lie eligible to apply and qualify for consideration of any granis_ leans. and other incentives under this Section, the applicant must submit documentation, and enter into an Incenti%e Agreement, whieh indicates the specific details of' the Project and compliance with the Policy. H Ili,%Ic-i_nim `Wc' t # "on dc% inc ni>hc3 dnv ECONOMIC DEVELOPMENT PROGRAM AGREEMENT This ECONOMIC DEVELOPMENT PROGRAM AGREEMENT ("Amement") is entered into by and between the TOWN OF WESTLAKE, TEXAS (the "Town"), a Type -A general law municipal corporation organized under the laws of the State of Texas, and MARRIOTT HOTEL SERVICES, INC. D/B/A DALLAS/FT.WORTH MARRIOTT SOLANA, ("Marriott;), a Hotel. The Town and Marriott are collectively referred to as the "Parties". RECITALS The Town and Marriott hereby agree that the following statements are true and correct and constitute the basis upon which the Town and Marriott have entered into this Agreement: A. Marriott owns and operates a 294 (288 plus 6 suites) room, full-service hotel located at 5 Village Circle, Westlake, Texas,(the "Hotel") The Hotel provides a valuable catalyst for visitors, tourism, and economic development to the Town. B. In order to increase visitors and tourism, and to maximize the economic benefits that the Hotel can bring to the Town, the Town and Marriott desire to enter into this Agreement. C. In accordance with Resolution No. 06-19, adopted by the Town Council on May 8, 2006, attached hereto as Exhibit "A" and hereby made a part of this Agreement for all purposes, the Town has established an economic development incentive policy and program pursuant to which the Town will, on a case-by-case basis, offer economic incentive packages authorized by Chapter 380 of the Texas Local Government Code, Article III, Section 52-a of the Texas Constitution, and other applicable laws, that include monetary loans and grants of public money, as well as the provision of personnel and services of the Town, to businesses and entities that the Town Council determines will promote State or local economic development and stimulate business and commercial activity in the Town in return for verifiable commitments from such businesses or entities to cause specific infrastructure, employment and other public benefits to be made or invested in the Town (the 11380 Program"). D. The Town Council has determined that by entering into this Agreement, the potential increase of visitors and tourism and economic benefits that will accrue to the Town under the terms and conditions of this Agreement are consistent with the Town's economic development objectives and the 380 Program and will further the goals for positive economic growth, visitors and tourism in the Town. This Agreement is authorized by Chapter 380 of the Texas Local Government Code and the 380 Program. 1 NOW, THEREFORE, in consideration of the mutual benefits and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: AGREEMENT 1. INCORPORATION OF RECITALS. The Town Council has found at a duly -called and legally -noticed public meeting through the adoption of Town Resolution No. 11-08, attached hereto as Exhibit "13" and hereby made a part of this Agreement for all purposes, and the Town and Marriott hereby agree, that the recitals set forth above are incorporated herein and true and correct and form the basis upon which the Parties have entered into this Agreement. 2. DEFINITIONS. In addition to terms defined in the body of this Agreement, the following terms shall have the definitions ascribed to them as follows: 380 Program has the meaning ascribed to it in Recital C. Affiliate means all entities, incorporated or otherwise, under common control with, controlled by or controlling Marriott. For purposes of this definition, "control" means fifty percent (50%) or more of the ownership determined by either value or vote. Program Grants means the annual allowable economic development grants paid (whether in one or multiple installments) by the Town to Marriott in accordance with this Agreement and as part of the 380 Program. Program Source Funds means an amount of Town funds legally available for inclusion in a Program Grant that is payable to Marriott in a given Program Year, which shall be derived from hotel occupancy taxes generated by the Hotel and received by the Town pursuant to Chapter 351 of the Texas Tax Code, or other legally available funds of the Town. Program_Year means the Town's fiscal year (i.e. October 1 through September 30th) in which the Town is obligated pursuant to this Agreement to pay Marriott a Program Grant, beginning with the first full calendar year following the execution of this Agreement. Quarterly Report has the meaning ascribed to it in Section 4.2. Records have the meaning ascribed to it in Section 4.3. Term has the meaning ascribed to it in Section 3. 2 Town of Westlake Hotel Support Pro ram has the meaning ascribed to it in Section 4.1. 3. TERM. This Agreement shall be effective as of the date of execution by the Parties (the "Effective Date") and, unless terminated earlier in accordance with this Agreement, shall expire one (1) year from the Execution Date. 4. TOWN AND MARRIOTT'S OBLIGATIONS AND COMMITMENTS. 4.1. Town of Westlake Hotel Support Program The total amount to be granted by the Town to Marriott under the terms of this Agreement for the Town of Westlake Hotel Support Program shall not exceed $90,000 with said Town of Westlake Hotel Support Program, consisting of the following two (2) components: (a.) Group Booking Incentives, the requirements for which are attached hereto as Exhibit "C" and hereby made a part of this Agreement for all purposes (the "Hotel Support Agreement") and details the obligations of Marriott to receive, and the Town to grant, the Program Grants from the Program Source Funds during the Program Year related to group bookings at the Hotel. The purpose of this component of the Town's Hotel Support Program shall be to increase new group bookings for the Hotel and to not incur a decrease in overall group meeting business (i.e. all group bookings at the Hotel both of new group business and repeat group business), thus increasing economic development through tourism and business development activity in the Town. The Group Booking Incentives provided by the Town under this Agreement to the Hotel shall not exceed $30,000 during the term of this Agreement. (b.) Transportation Costs, for which a total sum of $60,000 shall be provided by the Town under this Agreement to cover a portion of the operating cost for bus transportation services provided by the Marriott for guests of the Hotel. Funds disbursed by the Town under this component of the Town's Hotel Support Program shall be made at the end of each Town fiscal year quarter following submission by Marriott, and acceptance by the Town, of the Quarterly Report for the preceding quarter. The purpose of this component of the Town's Hotel Support Program is to enhance the Marriott's ability to increase room nights and retain existing room nights at the Hotel (as reported in Section 4.2 below), thus increasing economic development through tourism and business development activity in the Town. At all times during the term, the name c "Westlake, Texas" shall be visibly reflected and marked on both sides of any shuttle buses or vehicles used by the Hotel. 4.2. Reports and FilinEs. On a quarterly basis during the Term, Marriott shall submit a written report to the Town specifically delineating its compliance with this Agreement (the "Quarterly Repori"). The Quarterly Report shall be received by the Town Manager no later than thirty (30) days from the end of each quarter. Said Quarterly Report will contain, as a minimum, the following performance measure information for the reporting period in order for the Town to measure the effectiveness of its investment in this grant of public funds to Marriott for this Hotel: • Total funds paid to date aggregate under this Agreement during the contract term to Marriott for both components (shuttle bus and group incentives) of the Town's Hotel Support Program described in Section 4.1 of this Agreement • Total funds spent to date by Marriott separated by component for the activities and purposes set out in Section 4.1(a) and 4.1(b) of this Agreement • Increases in average daily occupancy at the Hotel • Decreases in average daily occupancy at the Hotel • Number of room nights generated by new group bookings at the Hotel • Number of room nights generated by repeat group business bookings at the Hotel • Average number of bus transportation trips daily to DFW Airport for guests at the Hotel • Average number of bus transportation trips daily to off -premise meeting locations for guests at the Hotel • Average number of bus transportation trips daily to other off - premise locations (entertainment, shopping, etc) for guests at the Hotel • Operating costs incurred by the Hotel during the quarter for shuttle bus transportation services • The number of new group bookings made for the Hotel during the reporting period and the number of repeat group business bookings made for the Hotel during the reporting period. • A brief description of marketing/sales efforts made during the reporting period for the Hotel including: ■ the number and type of new group sales prospects identified, targeted, and group sales closed by Marriott sales staff during the reporting period ■ the number and type of new group sales made by contacts from outside the Hotel Marriott 4 4.3. Audits. Per the requirements of State law and the Town ordinance establishing the Town's hotel -motel occupancy tax, the Town will have the right throughout the Term to audit any and all financial and business records of Marriott that relate to the performance of this Agreement and any other documents necessary to evaluate Marriott's compliance with this Agreement or with the goals set forth in this Agreement, including, but not limited to construction documents and invoices (collectively "Records"). Marriott shall make all Records available to the Town at the Hotel or at another location in the Town acceptable to both parties following reasonable advance notice by the Town and shall otherwise cooperate fully with the Town during any audit. 5. DEFAULT, TERMINATION AND FAILURE BY MARRIOTT TO MEET VARIOUS DEADLINES AND COMMITMENTS. 5.1. Continuous Operation. Following the Completion Date, if Marriott fails to continuously operate a full-service hotel at 5 Village Circle, Westlake, Texas, 76262, the Town shall have the right to terminate this Agreement by providing written notice to Marriott without further obligation to Marriott hereunder. 5.2. Failure to Pay Town Taxes or Fees. An event of default shall occur under this Agreement if any legally - imposed Town taxes or fees owed on, or generated by, the hotel become delinquent and Marriott or the Affiliate does not either pay such taxes or follow the legal procedures for protest and/or contest of any such taxes. In this event, the Town shall notify Marriott in writing and Marriott shall have sixty (60) calendar days to cure such default. If the default has not been fully cured by such time, the Town shall have the right to terminate this Agreement immediately by providing written notice to Marriott and shall have all other rights and remedies that may be available to it under the law or in equity. 5.3 Violations of Town Code State or Federal Law. An event of default shall occur under this Agreement if any written citation is issued to Marriott or an Affiliate due to the occurrence of a violation of a material provision of the Town Code at the Hotel (including, without limitation, any violation of the Town's Building or Fire Codes and any other Town Code violations related to the environmental condition of the Hotel; or to matters concerning the public health, safety or welfare) and such citation is not paid or the recipient of such citation does not properly follow the legal procedures for protest and/or contest of any such citation. An event of default shall occur under this Agreement if the Town is notified by a governmental agency or unit with appropriate jurisdiction that Marriott or an Affiliate, or any successor in interest 5 thereto, any third party with access to the Hotel pursuant to the express or implied permission of Marriott or an Affiliate, or any a successor in interest thereto, is in violation of any material state or federal law, rule or regulation on account of the Hotel, improvements on the Hotel or any operations thereon (including, without limitation, any violations related to the environmental condition of the Hotel; the environmental condition other land or waters which is attributable to operations on the Hotel; or to matters concerning the public health, safety or welfare). Upon the occurrence of such default, the Town shall notify Marriott in writing and Marriott shall have (i) thirty (30) calendar days to cure such default or (ii) if Marriott has diligently pursued cure of the default but such default is not reasonably curable within thirty (30) calendar days, then such amount of time that the Town reasonably agrees is necessary to cure such default. If the default has not been fully cured by such time, the Town shall have the right to terminate this Agreement immediately by providing written notice to Marriott and shall have all other rights and remedies that may be available to under the law or in equity. 5.4. Unauthorized Use of Funds and Requirement for Repayment to Town. If, during an audit by the Town under the provisions of this Agreement, the Town determines that the proceeds of this grant have not been utilized by Marriott for the purposes outlined in this Agreement, Marriott will be given thirty (30) calendar days to cure (following written notice from the To and, if Marriott fails to cure per the written notice from the Town, Marriott shall immediately remit to the Town the entire amount under this Agreement paid by the Town to Marriott during the reporting period during which the Town has identified that Marriott was not in compliance with the terms of this Agreement. If said amount is not remitted to the Town within 30 calendar days from the end of the cure period, that amount demanded for repayment to the Town plus six (6) percent simple interest on the repayment amount shall be due, in full, to the Town. For the purposes of this Section, Simple Interest" is defined as a rate of interest applied to the aggregate amount of the Program Grants paid by the Town to Marriott during the reporting period in which Marriott was in violation of this Agreement. 5.5. Failure to Submit Reports. Without limiting the application of Section 5.6, if Marriott fails to submit any report required by and in accordance with Section 4.2, the Town's obligation to pay any Program Grants at the time, if any, shall be suspended until Marriott has provided and is current on all reports. 5.6. General Breach. Unless stated elsewhere in this Agreement, Marriott shall be in default under this Agreement if Marriott breaches any term or condition of this Agreement. In the event that such breach remains uncured after thirty (30) no calendar days following receipt of written notice from the Town referencing this Agreement (or, if Marriott has diligently and continuously attempted to cure following receipt of such written notice but reasonably requires more than thirty (30) calendar days to cure, then such additional amount of time as is reasonably necessary to effect cure, as determined by both parties mutually and in good faith), the Town shall have the right to terminate this Agreement immediately by providing written notice to Marriott. 6. NO INDEPENDENT CONTRACTOR OR AGENCY RELATIONSHIP. It is expressly understood and agreed that Marriott shall not operate as an independent contractor or as an agent, representative or employee of the Town. Marriott shall have the exclusive right to control all details and day-to-day operations relative to the Hotel Support Program and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees and invitees. Marriott acknowledges that the doctrine of respondeat superior will not apply as between the Town and Marriott, its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Marriott further agrees that nothing in this Agreement will be construed as the creation of a partnership or joint enterprise between the Town and Marriott. 7. INDEMNIFICATION. MARRIOTT, AT NO COST OR LIABILITY TO THE TOWN, AGREES TO DEFEND, INDEMNIFY AND HOLD THE TOWN, ITS OFFICERS, AGENTS, ATTORNEYS, SERVANTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO MARRIOTT' BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i) MARRIOTT' BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT, OR (ii) ANY ACT OR OMISSION OR INTENTIONAL MISCONDUCT OF MARRIOTT, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE TO OR ITS EMPLOYEES, OFFICERS, AGENTS, ASSOCIATES, CONTRACTORS OR SUBCONTRACTS), OR SUBCONTRACTORS DUE OR RELATED TO OR ARISING FROM OPERATIONAND CONDUCT OF THE HOTEL SUPPORT PROGRAM OR OTHERWISE TO THE PERFORMANCE OR OBLIGATIONS OF THIS AGREEMENT. 8. NOTICES. All written notices called for or required by this Agreement shall be addressed to the following, or such other party or address as either party designates in writing, by certified mail, postage prepaid, or by hand delivery: I Town Town of Westlake Attn: Town Manager 3 Village Circle, #202 Westlake, Texas 76262 With Copies to (which shall not constitute notice): Boyle & Lowry, L.L.P. Attn: L. 'Stanton. Lowry 4201 Wingren Dr., Suite 108 Truing, Texas 75062 9. ASSIGNMENT AND SUCCESSORS. Marriott: Marriott may at any time assign, transfer or otherwise convey any of its rights or obligations under this Agreement to an Affiliate without the approval of the Town so long as Marriott, the Affiliate and the Town first execute an agreement approved by the Town Council of the Town of Westlake under which the Affiliate agrees to assume and be bound by all covenants and obligations of Marriott under this Agreement. Otherwise, Marriott may not assign, transfer or otherwise convey any of its rights or obligations under this Agreement to any other person or entity without the prior consent of the Town Council, conditioned on (i) the prior approval of the assignee or successor and a finding by the Town Council that the proposed assignee or successor is financially capable of meeting the terms and conditions of this Agreement and (ii) prior execution by the proposed assignee or successor of a written agreement with the Town under which the proposed assignee or successor agrees to assume and be bound by all covenants and obligations of Marriott under this Agreement. Any attempted assignment without the Town Council's prior consent shall constitute a breach and be grounds for termination of this Agreement and following receipt of written notice from the Town to Marriott. Any lawful assignee or successor in interest of Marriott of all rights under this Agreement shall be deemed "Marriott" for all purposes under this Agreement. 10. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. This Agreement will be subject to all applicable Federal, State and local laws, ordinances, rules and regulations, including, but not limited to, all provisions of the Town's codes and ordinances, as amended. 11. GOVERNMENTAL POWERS. M. It is understood that by execution of this Agreement, the Town does not waive or surrender any of it governmental powers or immunities that are outside of the terms, obligations, and conditions of this Agreement. 12. NO WAIVER. The failure of either party to insist upon the performance of any term or provision of this Agreement or to exercise any right granted hereunder shall not constitute a waiver of that party's right to insist upon appropriate performance or to assert any such right on any future occasion. 13. VENUE AND JURISDICTION. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 14. NO THIRD PARTY RIGHTS. The provisions and conditions of this Agreement are solely for the benefit of the Town and Marriott, and any lawful assign or successor of Marriott, and are not intended to create any rights, contractual or otherwise, to any other person or entity. 15. FORCE MAJEURE. It is expressly understood and agreed by the Parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, or other circumstances which are reasonably beyond the control or knowledge of the party obligated or permitted under the terms of this Agreement to do or perform the same, regardless of whether any such circumstance is similar to any of those enumerated or not, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to such requirement shall be extended for a period of time equal to the period such party was delayed. Notwithstanding anything to the contrary herein, it is specifically understood and agreed that Marriott' failure to obtain adequate financing to complete the Required Improvements by the Completion Deadline shall not be deemed to be an event of force majeure and that this Section 15 shall not operate to extend the Completion Deadline in such an event. 16. INTERPRETATION. In the event of any dispute over the meaning or application of any provision of this Agreement, this Agreement shall be interpreted fairly and reasonably, and neither more strongly for or against any party, regardless of the actual drafter of this Agreement. 9 17. SEVERABILITY CLAUSE. It is hereby declared to be the intention of the Parties that sections, paragraphs, clauses and phrases of this Agreement are severable, and if any phrase, clause, sentence, paragraph or section of this Agreement shall be declared unconstitutional or illegal by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality or illegality shall not affect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Agreement since the same would have been executed by the Parties without the incorporation in this Agreement of any such unconstitutional phrase, clause, sentence, paragraph or section. It is the intent of the Parties to provide the economic incentives contained in this Agreement by all lawful means. 18. CAPTIONS. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 19. ENTIRETY OF AGREEMENT. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire. understanding and agreement between the Town and Marriott, and any lawful assign and successor of Marriott, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. Notwithstanding anything to the contrary herein, this Agreement shall not be amended unless executed in writing by both parties and approved by the Town Council of the Town in an open meeting held in accordance with Chapter 551 of the Texas Government Code. 20. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. EXECUTED as of the last date indicated below: TOWN OF WESTLAKE: 10 a Texas By: Date: f �r Date: APPROVED AS TO FORM AND LEGALITY: By: L. to Town Attorney EXHIBITS "A" — Town of Westlake Resolution No. 06-19 "B" — Town of Westlake Resolution No. 11-08 "C" — Town of Westlake Hotel Support Program re: Group Booking Incentives H;\Bovla-Lowry BEDFORD1bfd-agreeznentslwl-agr econ dev agr MarEott.DOC 1X Exhibit C to Res 11-08 VISITOR SERVICES (817) 430-0941 — Fax (817) 430-1812 3 Village Circle Suite 9202 Westlake, TX 76262 TOWN OF WESTLAEE HOTEL SUPPORT PROGRAM GROUP INCENTrVES Description: A Town of Westlake cooperative marketing program designed to assist the Dallas/Fort Worth Marriott Solana Hotel (Hotel) in bringing group business to Westlake. The groups eligible for incentives under this program shall be new business or, under certain restrictions, groups that have previously stayed at the Hotel, but are considering other hotels in the area. Through this program, the Town of Westlake and the Hotel share in providing hospitality lodging and amenities that will encourage groups to choose Westlake as their destination. Guidelines: ➢ Requests for incentive funds shall be submitted for approval by the Hotel to the Town prior to the Hotel submitting a bid for the group business under this program. Under no circumstances shall incentive funds from this program be offered after a group has made their decision to book at the Hotel. ➢ Applications submitted for groups for which the Hotel wishes to utilize this group business incentive must be accepted by the Hotel's Sales Manager for group business that will take place in the current fiscal year or future years. ➢ An application for group business under this agreement may not be booked by the same organization more than twice in an eighteen (18) consecutive month period without prior approval from the Town of Westlake Town Manager. Generally preference will be given for group business incentives to attract new group business to the Hotel. ➢ Proposed group business shall book a minimum of $10,000 in per night room revenue to be considered eligible for this consideration for this incentive. ➢ A maximum incentive of a 55,000 discount is available to the Hotel for each group (with total available dollars set for this program for FY 09-10 being $30,000). This incentive will be calculated as follows: apply 75% to the per night room revenue that the Town would normally receive (7%) from the prospective group's business, up to a maximum of $5,000 per group. ➢ New group business generating in excess of 525,000 in per night room revenue may be given additional consideration for additional incentive amounts over the $5,000 per group incentive, if approved by the Town Manager. ➢ For groups receiving the benefit of this group incentive under this program, the Town of Westlake shall receive sponsor recognition in all correspondence and at the group meeting/convention in an appropriate manner. ➢ In addition to room night revenues, the following list of Hotel amenities/services shall be eligible for group incentives under this program, although they will considered within the aggregate maximum incentive of 55,000 per group. Items not listed below will be evaluated on a case by case basis, and may be approved by the Town Manager if deemed appropriate. • Food and Beverage) vents: Breakfast, lunch, dinner, cocktail receptions, etc. • Meeting Support: Audiovisual equipment, rentals. • Promotional: Program ad, welcome banners, participant bags, and VIP gifts. Resolution 10-02 Attachment "C" Page 2 of 2 Town of Westlake Hotel Support Program Procedures Exhibit C to Res 11-08 The Application shall include, as a minimum the following information before it will be reviewed by the General Manager in preparation for submittal to the Town of Westlake: o Hotel Information: Date of Application, Sales Manager, and Phone Number. o Group Information: Group Name, Contact Name, Address, Phone Number, Program Dates, Estimated Rooms Nights, Estimated Room Night Revenue, Estimated Catering Revenue, Estimated Outlet Revenue. 0 Signatures: The Application shall be signed by the hotel Sales Manager and Hotel Manager prior to it being submitted to the Town for approval. The Application shall be approved by the Town Manager for the Town of Westlake within forty-eight (48) hours of the application date, provided that all of the requested information is received. ➢ Once the Application has been approved by the Town, a confirmation email will be sent by the Town Manager or his designate to the Sales Manager of the hotel confirming the incentive amount. o Since funds are reserved for every Application that is approved, the Hotel shall inform the Town of Westlake in its quarterly report required in its economic grant agreement with the Town of amount on said efforts. Said report will contain information and be in a format as required by the Town of Westlake. This Quarterly Report Town shall be sent to: Town Manager Town of Westlake 3 Village Circle Suite #202 Westlake, TX 76262 817430-0941 817-430-1812 FAX MARY LOUISE NICHOLSON Woll]011Ill 4:1V11 TOWN OF WESTLAKE 1500 SOLANA BLVD BLDG 7, SUITE 7200 WESTLAKE, TX 76262 Submitter: TOWN OF WESTLAKE R�Sc1luV 100 West Weatherford Fort PHONE (817) 884-1195 TX 76196-0401 DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: 2/25/2019 10:23 AM Instrument #: D219035392 RESOL BY �.c.u<, P%J.c2w.�1 d D219035392 21 PGS $92.00 ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.