PURCHASE AND SALE AND ASSIGNMENT AGREEMENT [Marriott Hotel]

Transcription

1 PURCHASE AND SALE AND ASSIGNMENT AGREEMENT [Marriott Hotel] This Purchase and Sale and Assignment Agreement ( Agreement ) is entered into as of this day of, 2017, by and between the Successor Agency to the Redevelopment Agency of the City of San Jose ( Seller ) and Buyer as more particularly identified on the last page of this Agreement. RECITALS A. Pursuant to that certain Disposition and Development Agreement ( DDA ) dated June 9, 2000 ( DDA ) by and between the Redevelopment Agency of the City of San Jose ( Agency ) and Walton San Jose Investors III, L.L.C., a Delaware limited liability company ( Original Developer ), Original Developer developed that certain real property located at the southwest corner of South Market Street and West San Carlos Street in San Jose, California as more particularly described on Exhibit A attached hereto ( Real Property ). B. The DDA provided for the contribution of the Real Property, along with cash and other consideration, by the Agency, and contribution of cash by the Original Developer for the development and construction of a hotel on the Real Property (the Project ). C. Pursuant to Section 405 of the DDA, the Original Developer agreed to pay Agency an annual revenue participation amount based on gross revenue (as such term is defined in the DDA) generated from the Project ( RPI ) for a period of fifty (50) years beginning on the Revenue Commencement Date (as such term is defined in the DDA). The Revenue Commencement Date was May,

2 D. Pursuant to the DDA and in furtherance of the Project, the Agency and the Original Developer entered into that certain Declaration of Covenants and Restrictions Affecting Real Property dated October 27, 2000 ( CC&Rs ), which was recorded against the Property on October 30, 2000 as Document No in the Official Records of Santa Clara County. A copy of the CC&Rs is attached hereto as Exhibit B. E. The CC&Rs reiterate certain covenants of the DDA requiring the Original Developer to operate and maintain the Project as well as the covenant to pay the RPI to Agency on the same terms set forth in the DDA. F. On June 28, 2011, the Governor signed into law ABX1 26, which provided for the dissolution and winding down of redevelopment agencies throughout the State of California. AB X1 26 was subsequently amended by Assembly Bill 1484 and Senate Bill 107 (collectively, as amended, Dissolution Legislation ). G. On January 24, 2012, pursuant to the Dissolution Legislation, the City of San Jose elected to be the Successor Agency to the Agency to administer the dissolution and winding down of the Agency. On February 1, 2012, pursuant to the Dissolution Legislation, the Agency was dissolved by operation of law, and, upon dissolution, all assets, properties and contracts of the Agency, including the DDA and the CC&Rs, were transferred, by operation of law, to the Successor Agency pursuant to the provisions of Health and Safety Code (b). H. Buyer now desires to purchase from Seller, and Seller desires to sell to Buyer, all of Seller s right, title and interest in the CC&Rs, together with all of the Successor Agency s right, title and interest in and to the RPI as such interest was created in the DDA and established as a covenant running with the land in the CC&Rs ( Property ) - 2 -

3 NOW, THEREFORE, for valuable consideration, and subject to all terms and conditions hereof, Buyer and Seller agree as follows: 1. PURCHASE AND SALE. Pursuant to the terms and conditions contained in this Agreement, Seller hereby agrees to sell the Property to Buyer and, Buyer hereby agrees to purchase the Property from Seller ( Transfer ). The Transfer shall be documented by the following documents: A. Memorandum and Assignment of Declaration of Covenants and Restrictions Affecting Real Property ( CCR Memorandum ), in the recordable form attached hereto as Exhibit C; B. Partial Assignment Agreement, in the form attached hereto as Exhibit D, to be executed by the Seller, as assignor, and Buyer, as assignee; C. Memorandum of Assignment of DDA ( DDA Memorandum ), in the recordable form attached hereto as Exhibit E. 2. PURCHASE PRICE. The purchase price ( Purchase Price ) for the Property shall be Twelve Million Three Hundred Fifty Thousand Dollars ($12,350,000), payable by Buyer to Seller in cash at the Closing (as defined in Section 3B below). 3. ESCROW. A. Opening of Escrow. Buyer has opened an escrow at the offices of First American Title Company ( Escrow Holder ) at 1737 North First Street, San Jose, California. Upon mutual execution of this Agreement, Buyer and Seller shall deliver a fully executed copy of this Agreement to Escrow Holder. B. Closing Date. Escrow shall close not more than thirty (30) days after satisfaction of the Conditions to Closing set forth in Section 4 B (i). For purposes of this Agreement, the closing date ( Closing Date or Closing ) shall mean the date on which the CCR Memorandum and the DDA Memorandum (collectively, the Memoranda ) are recorded in the Santa Clara County Recorder s Office

4 C. Accommodation. Escrow Holder has been requested to record the Memoranda as an accommodation for the benefit of the parties and it is understood that Escrow Holder will act as a courier in requesting the recording of the Memoranda without benefit of examination of any documents or title to any property purportedly affected thereby by Escrow Holder; and the parties acknowledge that Escrow Holder derives no direct or indirect benefit from the recording of the Memoranda. In consideration of Escrow Holder s requesting the recording of the Memoranda hereunder and the delivery of the Notice of Assignment as defined in Section 4 (A) (i)(d) below and the Estoppel Certificate as described in Section 4(A) (ii) below (collectively, Transaction Documents ), the parties hereby waive and release Escrow Holder from any and all claims arising out of the Transaction Documents and agree to hold harmless, protect and indemnify Escrow Holder from and against any and all liabilities, losses, damages, expenses and charges, including but not limited to attorney's fees and expenses of litigation, which may be sustained or incurred by Escrow Holder in any way relating to, or arising directly or indirectly out of the accommodation recording requested by the parties hereunder, including any claim arising from or based upon or growing out of Escrow Holder s passive negligence in connection with the Transaction Documents. 4. CONDITIONS TO CLOSING. A. Buyer s Conditions to Closing. Close of Escrow and Buyer s obligation to purchase the Property pursuant to this Agreement are subject to the satisfaction of the following conditions at or prior to Closing: (i) Delivery of Seller Documents. Seller shall have executed and deposited into Escrow in recordable form, if applicable, the following documents: (a) The CCR Memorandum; (b) The DDA Memorandum; (c) The Partial Assignment Agreement; and - 4 -

5 hereto as Exhibit F. (d) The Notice of Assignment ( Notice ) in the form attached (ii) Estoppel. An Estoppel Certificate executed by the Owner of the Project in the form of Exhibit G shall be delivered into escrow for the benefit of Buyer. (iii) No Default. Seller shall not be in material default of Seller s obligations under this Agreement, and all of Seller s representations and warranties contained herein shall be true as of the Close of Escrow. If the conditions to Buyer s obligations set forth above fail to occur at or before the Closing Date through no fault of Buyer, then Buyer may cancel the Escrow, terminate this Agreement, and recover any amounts paid by Buyer to the Escrow Holder toward the Purchase Price. B. Seller s Condition to Closing. Close of Escrow and Seller s obligation to sell the Property to Buyer pursuant to this Agreement, are subject to the satisfaction of the following conditions at or prior to Closing: (i) Authorization to Sell. Prior to the Closing, Seller shall have obtained any and all authorizations and approvals necessary to sell the Property pursuant to the Dissolution Legislation. (ii) No Default. Buyer shall not be in material default of Buyer s obligations under this Agreement, including, but not limited to, Buyer s obligation to deliver the Purchase Price into escrow on or before the Closing Date. If the conditions above have not been satisfied or waived by Seller at or before the Closing Date through no fault of Seller, then Seller may, upon written notice to Buyer, cancel the Escrow, terminate this Agreement, and recover any documents delivered to the Escrow Holder pursuant to this Agreement

6 5. REPRESENTATIONS AND WARRANTIES. A. Buyer hereby represents and warrants to Seller that (i) it has the legal power, right and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transactions contemplated hereby; (ii) all requisite action (corporate, trust, partnership or otherwise) has been taken by Buyer in connection with entering into this Agreement and the instruments referenced herein, and the consummation of the transactions contemplated hereby; and (iii) no consent of any other party is required. B. Except as provided in Section 4 B (i) above, Seller hereby represents and warrants to Buyer that (i) it has the legal power, right and authority to enter into this Agreement and the instruments referenced herein, and to consummate the transactions contemplated hereby; (ii) all requisite action (corporate, trust, partnership or otherwise) has been taken by Seller in connection with entering into this Agreement and the instruments referenced herein, and the consummation of the transactions contemplated hereby; and (iii) no consent of any other party is required. C. Seller hereby represents and warrants to Buyer that: (i) the Property or any interest therein; Seller owns the Property and has not previously transferred (ii) Except for this Agreement, there are no options to purchase, rights of first refusal or other contracts for sale of the Property or any interest therein; (iii) there are no liens or other claims against the Property; and (iv) To Seller s knowledge, there are no actions, suits, investigations or proceedings (public or private) pending against or threatened against or affecting the Property

7 6. NO REPRESENTATIONS OR WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5 C ABOVE, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY. BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO MADE OR FURNISHED BY SELLER OR ANY AGENT PURPORTING TO REPRESENT SELLER. BUYER REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION AND VALUE OF THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS, OTHER THAN SUCH REPRESENTATIONS AND WARRANTIES OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, SUBJECT TO SUCH REPRESENTATIONS AND WARRANTIES OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER SHALL ASSUME ANY AND ALL RISKS RELATED TO THE PROPERTY, INCLUDING BUT NOT LIMITED TO, ANY MATTERS WHICH MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS AND DUE DILIGENCE, AND BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, - 7 -

8 LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF, OR ARISING OUT OF, THE PROPERTY OR ANY ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY EXISTING AT OR OCCURRING PRIOR TO CLOSING. IN CONNECTION THEREWITH, BUYER EXPRESSLY WAIVES ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES THAT: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR ; THE COVENANTS SET FORTH IN THIS SECTION SHALL SURVIVE CLOSE OF ESCROW AND DELIVERY OF THE MEMORANDUM AND ASSIGNMENT. 7. CLOSING OF ESCROW. A. Delivery of Documents and Payment. At or prior to Closing, Seller shall deposit into Escrow (i) the CCR Memorandum in the form attached hereto as Exhibit C, properly executed and acknowledged by Seller; (ii) the Notice in the form attached hereto as Exhibit F, properly executed by Seller; (iii) the DDA Memorandum in the form attached hereto as Exhibit E properly executed and acknowledged by Seller; and (iv) two (2) counterpart originals of the Partial Assignment Agreement, in the form attached hereto as Exhibit D, to be executed by the Seller, as assignor, and Buyer, as assignee. At or prior to Closing, Buyer shall deposit into escrow (i) the CCR - 8 -

9 Memorandum in the form attached hereto as Exhibit C, properly executed and acknowledged by Buyer; (ii) the DDA Memorandum in the form attached hereto as Exhibit E properly executed and acknowledged by Buyer; and (iii) two (2) counterpart originals of the Partial Assignment Agreement, in the form attached hereto as Exhibit D, to be executed by the Buyer, as assignee, and Seller, as assignor. At or prior to Closing, Buyer and Seller shall have each deposited into Escrow any supplemental escrow instructions necessary to close this Escrow. Escrow Holder shall deliver to Seller the Purchase Price, when (1) Escrow Holder holds, and is able to record, the CCR Memorandum and the DDA Memorandum, and (2) Escrow Holder holds and is able to deliver one (1) counterpart original of the Partial Assignment Agreement to Buyer and Seller, (3) Escrow Holder holds and is able to deliver the Notice of Assignment to the owner of the Project at the address provided therein, (4) the conditions specified in Section 4 have been satisfied or waived. B. Recordation and Delivery. At the Closing, Escrow Holder shall (1) forward the Memoranda to the recorder for recordation, (2) deliver the Notice to the owner of the Project, (3) deliver the Purchase Price and one (1) counterpart original of the Partial Assignment Agreement to Seller, and (4) deliver the Estoppel and one (1) counterpart original of the Partial Assignment Agreement to the Buyer. 8. BROKERS. Seller and Buyer hereby represent to each other that there are no brokers, finders, or other persons entitled to a commission, finder's fee or other payment in connection with this Agreement. Buyer and Seller hereby agree to indemnify, defend, protect, and hold the other harmless from and against any claims, liabilities, or damages for commissions or finder's fees brought by any third party who has dealt or claims to have dealt with the indemnifying party pertaining to the Property. 9. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the applicable laws of the State of California

10 10. PRORATION. Buyer and Seller acknowledge that under the CC&Rs, semi-annual RPI payments ( Revenue Participation Payment ) are payable by the owner of the Project on the fifteenth (15 th ) day of February and August of each calendar year. The Revenue Participation Payment shall be prorated upon receipt such that the Seller is entitled to that portion of the Revenue Participation Payment attributable to the period prior to Closing (based on the actual number of days from January 1, 2017 to the Close of Escrow) and the Buyer is entitled to that portion attributable to the period after Closing. The parties acknowledge that the Revenue Participation Payment payable on February 15, 2017 for the June December, 2016 period shall be payable to the Successor Agency. The Revenue Participation Payment payable on August 15, 2017 shall be payable to the Buyer, provided that, within thirty (30) days of receipt of such payment, Buyer shall calculate the proration described above and shall remit to Seller the prorated amount, together with a statement showing Buyer s calculation of such proration. Buyer s obligation to pay the prorated amount described above to Seller shall survive the Close of Escrow. 11. CLOSING COSTS. Buyer and Seller shall split equally any escrow fees or recording costs incurred in connection with this escrow. 12. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by national overnight courier service, sent by facsimile transmission, if also sent by one of the other methods provided in this Section, or sent by registered or certified mail, first class postage prepaid, return receipt requested, and shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice, (ii) the date of the facsimile transmission, or (iii) three (3) business days after the date of posting with the United States Postal Service at the following addresses: To Buyer: At the Address as set forth on the Signature Page

11 To Seller: With a Copy To: Successor Agency 200 East Santa Clara Street, 13 th Fl Tower San Jose, CA Attention: Managing Director Office of City Attorney 200 East Santa Clara Street, 16 th Fl Tower San Jose, CA Attention: City Attorney To Escrow Holder: First American Title Company 1737 N. First Street, San Jose, California Attention: Linda Tugade Any party to this Agreement may change its address for receipt of notices by giving notice of such change to the other party in the manner set forth in this Section. Neither the rejection of a notice by the addressee or the inability to deliver a notice because of a change of address for which no change of address notice was received, shall affect the date on which such notice is deemed received. 13. MISCELLANEOUS. A. Time. Time is of the essence of this Agreement with respect to each and every provision hereof in which time is a factor. B. Entire Agreement. This Agreement, including the Exhibits attached hereto, contains the entire agreement between the parties pertaining to the subject matter hereof and fully supersedes any and all prior agreements and understandings between the parties. No change in, modification of or amendment to this Agreement shall be valid unless set forth in writing and signed by all of the parties subsequent to the execution of this Agreement. C. Further Assurances. Each of the parties agrees that it will without further consideration execute and deliver such other documents and take such other action, whether prior or subsequent to the Closing Date, as may be reasonably

12 requested by the other party to consummate more effectively the purposes or subject matter of this Agreement. D. Successors. Subject to the provisions of this Agreement, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs, executors, representatives, successors and assigns. E. Severability. In the event any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall be effective only to the extent of such determination and shall not prohibit or otherwise render ineffective any other provision of this Agreement. F. Exhibits. References herein to exhibits are to Exhibit A, Exhibit B Exhibit C, Exhibit D, Exhibit E, Exhibit F, and Exhibit G attached hereto, which exhibits are hereby incorporated by reference. G. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signature pages may be detached from the counterparts and attached to a single copy of this Agreement to physically form one document

13 IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the date first written above. SELLER APPROVED AS TO FORM: SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JOSE Senior Deputy City Attorney Managing Director BUYER COUNTY OF SANTA CLARA APPROVED AS TO FORM AND LEGALITY: Jeff Smith County Executive Christopher R. Cheleden Lead Deputy County Counsel BUYER S ADDRESS: County of Santa Clara Facilities and Fleet Dept. Real Estate Assets Div N. First Street, Suite 200 San Jose, CA

14 ACCEPTANCE BY ESCROW HOLDER FIRST AMERICAN TITLE COMPANY By: Name: Title: Escrow Opens:,

15 EXHIBIT A PROPERTY DESCRIPTION Page 1 of 1 EXHIBIT A

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51 EXHIBIT C FORM OF MEMORANDUM AND ASSIGNMENT When recorded mail to: MEMORANDUM AND ASSIGNMENT OF DECLARATION OF COVENANTS AND RESTRICTIONS AFFECTING REAL PROPERTY This Memorandum and Assignment of Declaration of Covenants and Restrictions Affecting Real Property ( Memorandum ) is entered into as of this day of, 2017 ( Effective Date ), by and between the Successor Agency to the Redevelopment Agency of the City of San Jose ( Successor Agency ) and the County of Santa Clara ( Assignee ) with respect to the following: RECITALS A. Pursuant to that certain Disposition and Development Agreement ( DDA ) dated June 9, 2000 ( DDA ) by and between the Redevelopment Agency of the City of San Jose ( Agency ) and Walton San Jose Investors III, L.L.C., a Delaware limited liability company ( Original Developer ), Original Developer developed that certain real property located at the southwest corner of South Market Street and West San Carlos Street in San Jose, California as more particularly described on Exhibit A attached hereto ( Real Property ). B. The DDA provided for the contribution of the Real Property, along with cash and other consideration, by the Agency, and contribution of cash by the Original Page 1 of EXHIBIT C

52 Developer for the development and construction of a hotel on the Real Property (the Project ). C. Pursuant to Section 405 of the DDA, the Original Developer agreed to pay Agency an annual revenue participation amount based on gross revenue (as such term is defined in the DDA) generated from the Project ( RPI ) for a period of fifty (50) years beginning on the Revenue Commencement Date (as such term is defined in the DDA). The Revenue Commencement Date was May, D. Pursuant to the DDA and in furtherance of the Project, the Agency and the Original Developer entered into that certain Declaration of Covenants and Restrictions Affecting Real Property dated October 27, 2000 ( CC&Rs ), which was recorded against the Property on October 30, 2000 as Document No in the Official Records of Santa Clara County. E. The CC&Rs reiterate certain covenants of the DDA requiring the Original Developer to operate and maintain the Project as well as the covenant to pay the RPI to Agency on the same terms set forth in the DDA. F. On June 28, 2011, the Governor signed into law ABX1 26, which provided for the dissolution and winding down of redevelopment agencies throughout the State of California. AB X1 26 was subsequently amended by Assembly Bill 1484 and Senate Bill 107 (collectively, as amended, Dissolution Legislation ). G. On January 24, 2012, pursuant to the Dissolution Legislation, the City of San Jose elected to be the Successor Agency to the Agency to administer the dissolution and winding down of the Agency. On February 1, 2012, pursuant to the Dissolution Legislation, the Agency was dissolved by operation of law, and, upon dissolution, all assets, properties and contracts of the Agency, including the DDA, the CC&Rs and the RPI, were transferred, by operation of law, to the Successor Agency pursuant to the provisions of Health and Safety Code (b). Page 2 of EXHIBIT C

53 H. On, 2017, Successor Agency and Transferee entered into a Purchase and Sale and Assignment Agreement, whereby Successor Agency agreed to sell to Buyer, and Buyer agreed to acquire from Successor Agency, all of Successor Agency s right, title and interest in the CC&Rs, together with all of the Successor Agency s right, title and interest in and to the RPI as such interest was created in the DDA and established as a covenant running with the land in the CC&Rs. NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, Successor Agency and Assignee hereby agree as follows: 1. Assignment. As of the Effective Date, Successor Agency hereby assigns, transfers and conveys to Assignee all of the Successor Agency s right, title and interest in and to the CC&Rs, together with all of the Successor Agency s right, title and interest in and to the RPI accruing on and after the Effective Date as such interest was created in the DDA and established as a covenant running with the land in the CC&Rs. 2. Acceptance and Assumption. As of the Effective Date, Assignee hereby accepts the assignment of all of the Successor Agency s right, title and interest in the CC&Rs, together with all of the Successor Agency s right, title and interest in and to the RPI accruing on and after the Effective Date as such interest was created in the DDA and established as a covenant running with the land in the CC&Rs, and assumes and agrees to perform all of the Successor Agency s obligations and duties under the CC&Rs to the extent such obligations accrue on or after the Effective Date. 3. Memorandum of Assignment of CC&Rs. This Memorandum shall provide notice that the Successor Agency has hereby transferred to Transferee, and Transferee has accepted, all of Successor Agency s right, title and interest in the CC&Rs, together with all of the Successor Agency s right, title and interest in and to the RPI as such interest was created in the DDA and established as a covenant running with the land in the CC&Rs. Except for the transfer herein by the Successor Agency of Page 3 of EXHIBIT C

54 the Successor Agency s right, title and interest in and to the RPI under the DDA, nothing herein constitutes a transfer of any of the Successor Agency s other rights, title and interests under the DDA, which shall not be affected by this Agreement and shall continue in full force and effect in accordance with the terms of the DDA. 4. Indemnification. The Successor Agency hereby agrees to indemnify, defend, and hold Assignee harmless from and against all claims, liabilities, damages, costs, and expenses (including reasonable attorney s fees) asserted against, or incurred by, Assignee, arising out of the CC&Rs as to obligations accruing and to be performed by the Successor Agency prior to the Effective Date. Assignee hereby agrees to indemnify, defend, and hold the Successor Agency harmless from and against all claims, liabilities, damages, costs, and expenses (including reasonable attorney s fees) asserted against, or incurred by, the Successor Agency, arising out of the CC&Rs after the Effective Date as to obligations accruing and to be performed by Assignee from and after the Effective Date. 5. Miscellaneous. This Memorandum may be executed in counterparts, and all such executed counterparts shall comprise one fully executed original. This Memorandum shall be binding upon and inure to the benefit of the parties hereto and, their respective legal representatives, successors and assigns; shall be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be wholly performed within said State; and may not be modified or amended in any manner other than by a written agreement signed by the party to be charged therewith. Page 4 of EXHIBIT C

55 IN WITNESS HEREOF, the parties have executed this Memorandum on the date set forth above. SUCCESSOR AGENCY APPROVED AS TO FORM: SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JOSE Thomas Murtha Senior Deputy City Attorney Richard Keit Managing Director TRANSFEREE COUNTY OF SANTA CLARA APPROVED AS TO FORM AND LEGALITY: Jeff Smith County Executive Christopher R. Cheleden Lead Deputy County Counsel BUYER S ADDRESS: County of Santa Clara Facilities and Fleet Dept. Real Estate Assets Div N. First Street, Suite 200 San Jose, CA Page 5 of EXHIBIT C

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58 EXHIBIT D FORM OF PARTIAL ASSIGNMENT PARTIAL ASSSIGNMENT AGREEMENT This Partial Assignment Agreement ( Agreement ) is entered into as of this day of, 2017, by and betw een the Successor Agency to the Redevelopment Agency of the City of San Jose ( Assignor ) and the County of Santa Clara ( Assignee). A. As of June 9, 2000, the Redevelopment Agency of the City of San Jose ( Agency ) entered into that certain Disposition and Development Agreement ( DDA ) with Walton San Jose Investors III, L.L.C., a Delaware limited liability company ( Original Developer ), for the development that certain real property located at the southwest corner of South Market Street and West San Carlos Street in San Jose, California as more particularly described on Exhibit A attached hereto ( Real Property ). B. The DDA provided for the contribution of the Real Property, along with cash and other consideration, by the Agency, and contribution of cash by the Original Developer for the development and construction of a new business hotel (the Project ). C. Pursuant to Section 405 of the DDA, the Original Developer agreed to pay Agency an annual revenue participation amount based on gross revenue generated from the Project (the RPI ) for a period of fifty (50) years beginning on the Revenue Commencement Date (as defined in the DDA). The Revenue Commencement Date was May, G. As of July 13, 2016, CWI 2 San Jose Hotel, LP, a Delaware limited partnership ( Owner ) acquired title to the Real Property pursuant to that certain grant deed recorded against the Real Property on July 14, 2016 as Document No in the Official Records of Santa Clara County, subject to all matters of record, which include the DDA. Page 1 of 3 EXHIBIT D

59 E. On, 2017, Successor Agency and Assignee entered into a Purchase and Sale Agreement and Escrow Instructions ( Purchase Agreement ), whereby Successor Agency agreed to sell all of Successor Agency s right, title and interest in the CC&Rs to Buyer and Buyer agreed to acquire all of Successor Agency s right, title and interest in the RPI. NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, Assignor and Assignee hereby agree as follows: 1. Assignment. Assignor hereby irrevocably coveys, transfers and assigns to Assignee, and Assignee hereby accepts all of Assignor s right, title and interest in and to the RPI. Except for the assignment set forth above, no other provisions of the DDA shall be affected by this Agreement. 2. Revenue Participation Payment. In furtherance of this Agreement, as of the Closing Date and as provided in the Purchase Agreement, all revenue participation payments payable by Owner pursuant to Section 405B of the DDA for the period after the Closing Date shall be henceforth payable to Assignee. 3. Recordation. The parties shall execute a Memorandum of Assignment of DDA which shall be recorded against the Real Property in the Official Records of the County of Santa Clara. 4. Miscellaneous. This Agreement may be executed in counterparts, and all such executed counterparts shall comprise one fully executed original. This Agreement shall be binding upon and inure to the benefit of the parties hereto and, their respective legal representatives, successors and assigns; shall be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be wholly performed within said State; and may not be modified or amended in any manner other than by a written agreement signed by the party to be charged therewith. Page 2 of 3 EXHIBIT D

60 IN WITNESS HEREOF, the parties have executed this Memorandum on the date set forth above. ASSIGNOR APPROVED AS TO FORM: SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JOSE Thomas Murtha Senior Deputy City Attorney Richard Keit Managing Director ASSIGNEE APPROVED AS TO FORM: COUNTY OF SANTA CLARA [Name] Lead Deputy County Counsel [Name] [Title] [Name] [Title] Page 3 of 3 EXHIBIT D

61 EXHIBIT E FORM OF MEMORANDUM OF ASSIGNMENT OF DDA When recorded mail to: MEMORANDUM OF ASSIGNMENT OF DDA This Memorandum of Assignment of DDA ( Memorandum ) makes reference to that certain Disposition and Development Agreement dated June 9, 2000 ( DDA ). The DDA contains terms and covenants affecting title to and right to possession of that certain real property generally located on the southwest corner of San Carlos Street and Market Street in the City of San Jose, County of Santa Clara, State of California, and more particularly described in Exhibit A attached hereto and incorporated herein (the Property ). This Memorandum shall provide notice that the Successor Agency to the Redevelopment Agency of the City of San Jose ( Successor Agency ) and the County of Santa Clara ( Assignee ) have entered into a partial assignment agreement (the Assignment ) whereby Successor Agency has assigned to Assignee and Assignee has assumed from Successor Agency, the right to receive annual revenue participation pursuant to Section 405 of the DDA. Except as modified by the Assignment, all conditions covenants and restrictions contained in the DDA, which have not expired under the terms thereof, continue in full force and effect. This Memorandum of Assignment of DDA is being recorded for notice purposes only. Nothing herein shall be deemed to amend, change or modify the terms, Page 1 of 2 EXHIBIT E

62 covenants conditions of the DDA, except as modified by the Assignment referred to herein. IN WITNESS HEREOF, the parties have executed this Memorandum on the date set forth above. SUCCESSOR AGENCY APPROVED AS TO FORM: SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN JOSE Thomas Murtha Senior Deputy City Attorney Richard Keit Managing Director ASSIGNEE APPROVED AS TO FORM: COUNTY OF SANTA CLARA [Name] Lead Deputy County Counsel [Name] [Title] Page 2 of 2 EXHIBIT E

63 EXHIBIT F NOTICE OF ASSIGNMENT [Closing Date] VIA AND U. S. MAIL Attn: Re: Disposition and Development Agreement ( DDA ) dated June 9, 2000 ( DDA ) by and between the Redevelopment Agency of the City of San Jose and Walton San Jose Investors III, L.L.C., a Delaware limited liability company and Declaration of Covenants and Restrictions Affecting Real Property by and between the Redevelopment Agency of the City of San Jose and Walton San Jose Investors, L.L.C.( Original Developer ), dated October 27, 2000 and recorded on October 30, 2000 as Document No in the Official Records of Santa Clara County ( CC&Rs ). To Whom it May Concern: Please be advised that effective as of the date set forth above, the Successor Agency to the Redevelopment Agency of the City of San Jose ( Successor Agency ) assigned its interest in the CC&Rs referenced above and a partial interest in the DDA to the County of Santa Clara ( Transferee ). A copy of the recorded Memorandum and Assignment of Declaration of Covenants and Restrictions Affecting Real Property and Partial Interest in DDA is attached hereto for your convenience. Pursuant to the Purchase and Sale and Assignment Agreement between the Successor Agency and the Transferee, the semi-annual revenue participation payment ( Revenue Participation Payment ) payable on February 15, 2017 for June December 2016 period shall be payable to the Successor Agency as provided under Section 405 of the DDA and Section 1 of the CC&Rs. Commencing on January 1, 2017, the Revenue Participation Payments payable for the 2017 calendar year and future Revenue Participation Payments shall be payable to Transferee and shall be sent to the following address: [Name of Transferee] Page 1 of 2 EXHIBIT F

64 Please feel free to call me at (408) if you have any questions. Richard Keit Managing Director Page 2 of 2 EXHIBIT F

65 EXHIBIT G FORM OF ESTOPPEL CERTIFICATE ESTOPPEL CERTIFICATE County of Santa Clara Attn:, 2017 Re: Declaration of Covenants and Restrictions Affecting Real Property by and between the Redevelopment Agency of the City of San Jose ( Agency ) and Walton San Jose Investors III, L.L.C. ( Original Developer ), dated October 27, 2000 and recorded on October 30, 2000 as Document No in the Official Records of Santa Clara County ( CC&Rs ), relating to that certain real property located on the southwest corner of South Market Street and West San Carlos Street in San Jose, California as more particularly described on Exhibit A attached to the CC&Rs ( Real Property ) To whom it may concern: The undersigned Owner hereby certifies and acknowledges as follows: 1. Owner owns the Property, and has not previously transferred title to the Property or any interest therein. 2. The Property is subject to the terms of the CC&Rs, including the obligation to pay the RPI as such interest was created in Section 405 of a Disposition and Development Agreement dated June 9, 2000 between the Agency and the Original Developer ( DDA ). 3. The CC&Rs are in full force and effect and have not been modified, amended or supplemented. The parties to the CC&Rs have performed all of their respective obligations under the CC&Rs. 4. The Revenue Commencement Date was May, EXHIBIT G

66 5. The Owner is not aware of any outstanding defaults under the DDA or the CC&R s or of any current or future event which would impact the Owner s ability to pay the RPI under the DDA when due. 6. The Owner has not prepaid or otherwise paid in advance any portion of the RPI. 7. Owner does not have, nor is Owner aware of, any claim, offset or deduction from or against the RPI. 8. The next payment of the RPI is due on August 15, The certifications contained in this Estoppel Certificate may be relied upon in connection with the acquisition of the right to receive the RPI from the Successor Agency to the Redevelopment Agency of the City of San Jose and shall bind the Developer. CWI 2 San Jose Hotel, L.P. By: Its: By: Its: EXHIBIT G