PURCHASE AND SALE AND ASSIGNMENT AGREEMENT [Marriott Hotel]

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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, 2003.

DRAFT--Contact the Office of the City Clerk at (408) 535-1260 or [email protected] for final document.

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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. 15439850 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 §34175 (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”)


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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.


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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


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(d) The Notice of Assignment (“Notice”) in the form attached

hereto as Exhibit F.

(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.


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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) Seller owns the Property and has not previously transferred

the Property or any interest therein;

(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.


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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,


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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


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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.


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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 (15th) 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


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To Seller: Successor Agency 200 East Santa Clara Street, 13th Fl Tower San Jose, CA 95113 Attention: Managing Director

With a Copy To: Office of City Attorney 200 East Santa Clara Street, 16th Fl Tower San Jose, CA 95113 Attention: City Attorney

To Escrow Holder: First American Title Company 1737 N. First Street, San Jose, California 95110 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


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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.


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IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of

the date first written above.

SELLER

SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY

APPROVED AS TO FORM: 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 Christopher R. Cheleden County Executive Lead Deputy County Counsel

BUYER’S ADDRESS: County of Santa Clara Facilities and Fleet Dept. Real Estate Assets Div. 2310 N. First Street, Suite 200 San Jose, CA 95131-1040


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ACCEPTANCE BY ESCROW HOLDER FIRST AMERICAN TITLE COMPANY By: ________________________ Name: _____________________ Title: ______________________ Escrow Opens: _______________, 2016


Page 1 of 1 1364955.doc EXHIBIT A 1/31/2017

EXHIBIT A PROPERTY DESCRIPTION


Page 1 of 35 EXHIBIT B

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EXHIBIT B

CC&Rs



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Page 1 of ___ 1364955.doc EXHIBIT C 1/31/2017

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”).


cash and other consideration, by the Agency, and contr ibution of cash by the Original



Developer for the development and construction of a hotel on the Real Property (the

“Project”).


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, 2003.

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. 15439850 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 §34175 (b).



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



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.



IN WITNESS HEREOF, the parties have executed this Memorandum on the date

set forth above.

SUCCESSOR AGENCY


APPROVED AS TO FORM: OF THE CITY OF SAN JOSE ____________________________ ________________________________ Thomas Murtha Richard Keit Senior Deputy City Attorney Managing Director TRANSFEREE COUNTY OF SANTA CLARA APPROVED AS TO FORM AND LEGALITY: ________________________ _____________________________ Jeff Smith Christopher R. Cheleden County Executive Lead Deputy County Counsel

BUYER’S ADDRESS: County of Santa Clara Facilities and Fleet Dept. Real Estate Assets Div. 2310 N. First Street, Suite 200 San Jose, CA 95131-1040


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1364955.doc 1/31/2017


Page 1 of 3 1364955.doc EXHIBIT D 1/31/2017

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 between 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”).


cash and other consideration, by the Agency, and contr ibution of cash by the Original

Developer for the development and construction of a new business hotel (the “Project”).


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, 2003.

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. 23364329

in the Official Records of Santa Clara County, subject to all matters of record, which

include the DDA.



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.




set forth above.

ASSIGNOR


APPROVED AS TO FORM: OF THE CITY OF SAN JOSE ____________________________ ________________________________ Thomas Murtha Richard Keit Senior Deputy City Attorney Managing Director ASSIGNEE COUNTY OF SANTA CLARA APPROVED AS TO FORM: ____________________________ ________________________________ [Name] [Name] Lead Deputy County Counsel [Title] ________________________________ [Name] [Title]


Page 1 of 2 1364955.doc EXHIBIT E 1/31/2017

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 2 of 2 1364955.doc EXHIBIT E 1/31/2017

covenants conditions of the DDA, except as modified by the Assignment referred to

herein.


set forth above.

SUCCESSOR AGENCY


APPROVED AS TO FORM: OF THE CITY OF SAN JOSE ____________________________ ________________________________ Thomas Murtha Richard Keit Senior Deputy City Attorney Managing Director ASSIGNEE COUNTY OF SANTA CLARA APPROVED AS TO FORM: ____________________________ ________________________________ [Name] [Name] Lead Deputy County Counsel [Title]


Page 1 of 2 1364955.doc EXHIBIT F 1/31/2017

EXHIBIT F

NOTICE OF ASSIGNMENT

[Closing Date]

VIA EMAIL 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. 15439850 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 2 of 2 1364955.doc EXHIBIT F 1/31/2017

_________________________ Please feel free to call me at (408) 795-1849 if you have any questions. __________________________ Richard Keit Managing Director


1364955.doc EXHIBIT G 1/31/2017

EXHIBIT G

FORM OF ESTOPPEL CERTIFICATE

ESTOPPEL CERTIFICATE

___________________, 2017

County of Santa Clara ______________________ ______________________ Attn:__________________

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. 15439850 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, 2003.


1364955.doc EXHIBIT G 1/31/2017

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, 2017.

9. 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:_______________________
