Amended Complaint Filed No Fee

Cal. Super. - 6th Dist.January 2, 2019

[Exempt From Filing Fee Government Code g 6103] I F. GALE CONNOR (Bar No. 131994) MILLERSTARR REGALIA 2 A Professional Law Corporation 351 California St, Suite 1110 3 San Francisco, California 94104 Telephone: 415 638 4800 4 Facsimile: 415 371 1012 Email: gale.connor@msrlegal.corn 5 ahva.aflatoonimsrlegal.corn 6 Attorneys for PlaintiffCITY OF SANTA CLARA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 CITY OF SANTA CLARA, a California 11 Charter City, 12 13 v. Plaintiff, 14 IA LODGING SANTA CLARA, LLC, a Delaware limited liabilitycompany; IA 15 LODGING SANTA CLARATRS, LLC, a Delaware limited liabilitycompany; and 16 DOES I - 50, Case No. 19CV340507 APN: 104-55-005 FIRST AMENDEDCOMPLAINTIN EMINENTDOMAIN] 17 18 Defendant. PlaintiffCITY OF SANTA CLARA, a California Charter City (hereinafter "City" 19 or "Plaintiff')alleges as follows: 20 1. City is, and all times mentioned herein has been, vested with the power of 21 eminent domain to acquire real property by virtue of Article I, Section 19 of the Constitution of 22 the State ofCalifornia, Sections 37350.5, 37353 and 40404 of the California Government Code, 23 Sections 1240.010 and 1240.220 of the California Code of CivilProcedure, and Section 400 of its 24 Charter. 25 Plaintiffseeks to acquire the real property hereinafter described for a public 26 use, to wit: the relocation of Stars & Stripes Drive and development ofAvenues A, B and C (the 27 "Project*'). The Project willprovide necessary public infrastructure for the City Place Project. 28 SCLA'69379Q077920.1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/11/2019 11:58 AM Reviewed By: L. Quach-Marcellana Case #19CV340507 Envelope: 2610193 19CV340507 Santa Clara - Civil 3. Plaintiff is informed and believes and based thereon alleges that Defendant IALODGING SANTA CLARA,LLC a Delaware limited liabilitycompany ("IALodging") is the owner of the Lessee's interests under that certain Hotel Ground Lease made by and between the Redevelopment Agency of the City of Santa Clara and IALodging's predecessor in interest, SCCC Associates, a California general partnership, dated April 30, 1985, as amended and assigned, a memorandum of which was recorded in the Official Records of the County of Santa Clara (the "OfficialRecords" ) on May 16, 1985, in Book J348, page 42 (as amended, supplemented and assigned, the "Hotel Ground Lease" ) pertaining to that certain parcel of land and improvements thereon, located at 5105 Great America Parkway (the "I-Iotel Property" ) and all 10 appurtenances thereto. 4. Plaintiffis informed and believes and based thereon alleges that IA Lodging 12 13 14 is the owner of the Hotel Lessee's interests under that certain Recreation Facilities Agreement, dated April 30, 1985, between the City's predecessor in interest, the Sports and Open Space Authority of the City of Santa Clara, and IA Lodging's predecessor in interest, SCCC Associates, 15 which Recreation Facilities Agreement was recorded in the Official Records on May 16, 1985, as Instrument No. 8411277 in Book 1348, Page I, as amended by that certain First Amendment to 17 Recreation Facilities Agreement, dated November 24, 1987 recorded in the Official Records on 18 December 2, 1987 in Book K377, Page 638 and as further amended by that certain Second 19 Amendment to Recreation Facilities Agreement dated March 17, 1998 recorded in the Official 20 Records on April 21, 1998, as Instrument No. 14150277 and as further amended by that certain 21 First Supplement to Recreation Facilities Agreement, recorded in the Official Records on February 22 16, 2001 as Instrument No. 15563487, collectively, the "RFA." A true and correct copy ofwhich 23 24 is attached hereto as Exhibit A and incorporated herein by this reference. 5. The RFA provides for the construction, maintenance and operation of an 25 18-hole golfcourse, a golfclubhouse, six (6) tennis courts, two of which were constructed at the 26 cost and expense of other than the Hotel Lessee, and related facilities and amenities including, 27 appropriate parking and landscaping (the '*Recreation Facilities" ). The RFA grants Hotel Lessee certain preferences in the use the Recreation Facilities (the "Recreation Property" ). The RFA is an SCI.A'l55379I2077920. I appurtenance to the Hotel Ground Lease for the benefit of said leasehold parcel and creates mutual equitable servitudes upon the Recreation Property and Hotel Property. Defendant's rights under the RFA are hereinatier referred to as the "Property." 6. The Project willresult in the removal of the tennis courts and willleave the golfcourse and its appurtenances in such form, shape and reduced size as to render it no longer usable as a golfcourse. Plaintifftherefore seeks to acquire the interests of Defendants, and each of them, under the RFA, including their interests in and right to use the Recreation Facilities, which willbe removed and demolished by Plaintiffto allow for construction of the Project. 7. Prior to commencement of this action and after notice given pursuant to 10 Code of CivilProcedure, Section 1245.235, at a meeting of the Santa Clara City Council (the 12 "Council"), duly and regularly convened on December 11, 2018, the Council, pursuant to Code of CivilProcedure, Sections 1245.210, 1245.240, duly and regularly passed and adopted Resolution 13 No. 18-8642("Resolution" ), a true and correct copy of which is attached hereto as Exhibit 13, and 14 15 incorporated herein by this reference, declaring the public interest and necessity requires acquisition by the City of certain real property for the Project. 16 17 19 8. In adopting its Resolution, the Council found, determined and declared that: (a) The public interest and necessity require the Project; (b) The project is planned or located in a manner that willbe most compatible with the greatest public good and least private injury; 20 21 (c) The Property is necessary for the Project; (d) The offer required by Section 7267.2 of the California Government 22 Code has been made to the owner or owners of record; 23 (e) The City Attorney is authorized and directed to commence 24 proceedings in eminent domain to condemn the Property and to file any actions or comply with 25 26 any legal procedures to obtain an order for immediate pre-judgment possession of the Property. 9. Plaintiffis informed and believes and thereon alleges that Defendant IA 27 LODGING SANTA CLARATRS, LLC, a Delaware limited liabilitycompany is the lessee and 28 SCLA'I5537912077920.1 operator of the Hotel Property pursuant to a lease agreement with Defendant IA LODGING OF SANTA CLARA, LLC. 10. Defendants DOES 1 through 50, inclusive, have, or claim to have, an interest in the Property, the exact nature ofwhich is unknown to Plaintiff. The true names or capacities, whether individual, corporate, associate or otherwise are unknown to Plaintiffwho therefore sues said Defendants by such fictitious names, and Plaintiffwillask leave to amend this Complaint to show their trues names and capacities or state of incorporation, ifknown, when the same has been ascertained. 10 11. WHEREFORE, Plaintiffprays for judgment as follows: (I) That the Property be condemned to Plaintiffs use for the purpose set forth in the Resolution; 12 (2) That compensation be ascertained as assessed and the amount of the award for 13 14 the Property be first determined between Plaintiffand all Defendants claiming any interest therein; (3) That the value of any liens or encumbrances against the Property be deducted 15 16 from the judgment; (4) That an Order issue allowing Plaintiffpre-judgment right to possess the 17 Property; and 18 (5) For such other and further relief as the Court may deem necessary and proper. 19 20 21 Dated: March 1 (,2019 MILLERSTARR REGALIA 22 23 24 25 I3y: ~~~~ F. GALE CONNOR Attorneys for PlaintiffCITY OF SANTA CLARA 26 27 28 SCLA'I5537912077920.1 PROOF OF SERVICE At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of San Francisco, State of California. My business address is 351 California St, Suite 1110, San Francisco, CA 94104. On March 11, 2019, 1 served true copies of the following document(s) described as FIRST AMENDEDCOMPLAINTIN EMINENTDOMAIN]on the interested parties in this action as follows: 6 SEE ATTACHEDSERVICE LIST 7 8 9 10 11 12 BY MAIL:1enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of MillerStarr Regalia for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fullyprepaid. 1 am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at San Francisco, California. 1 declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct. 13 Executed on March 11, 2019, at San Francisco, California. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SCLA'65379Q077920.1 SERVICE LIST John Marshall Collins, Attorney John Marshall Collins, P.C. 60 S. Market St., Suite 1400 San Jose, CA 95113 (408) 287-9001 (phone) (408) 852-0309 (fax) Email: iohnolaw(kamail.corn Attorney for Defendants IA LODGING SANTA CLARA,LLC and IA LODGING SANTA CLARATRS, LLC 10 12 13 14 15 17 18 19 20 21 22 23 24 25 26 27 28 SCLA'i35379Q077920.1 EXHIBITAHIBIT A AFTER RECORDING RETURN TO: Sports and Open Space Authority of the City of Santa Clara 1500 Warburton Avenue Santa Clara, Callfornla 95050 RECREATION PACILITIES AGREEMENT by and between THE SPORTS AND OPEN SPACE AUTHORITYOF THE CITY OP SANTA CI ARA, Authorlty, and SCCC ASSOCIATES, Hotel Lessee. 10/50-1 ¹3 TABLE OF CONTENTS I. [2 100] DEVELOPMENT OF THE RECREATION FACILITIES A. [0 101] Design, Development and Construction of the Golf Course B. [8 1021 Design, Development and Construction of the Tennis Courts 1. [0 1031 Initial Courts 2. [0 104] Additional Courts H. [8 200] MAINTENANCEOF RECREATION FACILITIES III. [0 3001 OPERATION OP RECREATION FACILITIES A. [2 301] Generally B. [2 302] Impositions (Including Taxes and Assessments) IV. [g 400] FEES AND CHARGES A. [g 401] Generally B. [0 402 J Charging Privileges V. [2 500J ALTERATIONOF PARCEL 5 AND/OR THE RECREATION FACILITIES VI. [0 600] ADVERTISING VII. [8 'f00] RULES AND REGULATIONS VIII [2 800] ASSIGNMENT AND TRANSFER A. [0 801] Hotel Lessee B. [0 802J Authority IX. [g 900] MORTGAGES A. [8 901] Hotel Lessee B. [S 902] Authority X. [0 1000] DAMAGE OR DESTRUCTION PAGE 5, XL [5 1100] EMINENT DOMAIN XII tg 1200] TERM A. [2 1201] GeneraBy B. [2 1202J Early Termination C. [5 1203] Hotel Lessee Rights After Expiration of this Agreement 1. [$ 1204] Notice of Intentions re: Recreation Pacilities 2. [2 1206] Priority if Recreation Pacilities Operated 3. [ 2 1206] Survival of Provisions XIII. [$ 13001 DEFAULTS AND REMEDIES A. [2 1301 J Defaults - General B. [2 1302] Legal Actions 1. [5 1303] Institution of I egal Actions 2. [2 1304] Applicable Law 3. [5 1306J Acceptance of Service of Process 4. [21306] Attorneys'Fees and Court Costs C. [5 1307] Rights and Remedies are Cumulative D. [5 1308] Damages E. [5 1309] Specific Performance F. [5 1310] Suspension of Obligations G. [2 1311] Enforced Delay in Performance for Causes Beyond Control of Party XIV. [2 14001 GENERAL PROVISIONS A. [2 1401] Notices B. [5 1402] Exhibits PAGE 10 12 12 12 12 12 13 13 13 13 14 14 14 15 C. [8 14031 Headfngs D. [S 1404] Severability E. [S 1405[ Capacfty to Execute Agreement F. [g 1406[ Counterparts G. [8 140?] Execution and Recordation H. [91408[ Successors, Mutuality, RunningWith Land I [8 1409l Entire Agreement J. [8 1410] Rights Reserved PAGE 15 15 15 15 18 18 16 EXHIBITS Exhibit A - DESCRIPTION OF PARCEL 5 Exhibit B Exhibit C Exhfblt D DESCRIPTION OF PARCEL 1 MAP OF RECREATION FACILITIES RESERVATION PROCEDURES RECREATION FACILITIES AGREEMENT This Recreation Facilities Agreement (the "Agreement" ) is made by and between the SPORTS AND OPEN SPACE AUTHORITY OF THE CITY OF SANTA CLARA («Authority«), and SCCC ASSOCIATES, a California general Partnership («Hotel Lessee" ). WITNESSETH WHEREAS, Authority, the City of Santa Clara («City«) and the Redevelopment Agency of the City of Santa Clara («Agency" ) entered into that certain Lease and Agreement for Construction of the New Golf Course dated March I, 1983 (the "Lease and Construction Agreement" ) pursuant to which: (I) City leased to Authority certain real property described on Exhibit «A«attached hereto (referred to herein as "Parcel 5«); and (2) Agency agreed to design, develop and construct on Parcel 5, on behalf of Authority, a first class golf course, seven (7) tennis courts, and a clubhouse, together with parking areas, landscaping, access and service roads and related facilities and amenities; and WHEREAS, concurrently with the execution of this Agreement, Agency and Hotel Lessee have entered into a certain Ground Lease (the "Lease" ) pursuant to which Agency has leased to Hotel Lessee certain real property consisting of approximately one and one half (1.5) acres, more or less, as more particularly described on Exhibit "B«attached hereto (referred to herein as "Parcel I«) and Hotel Lessee has agreed to construct, operate and maintain on Parcel I a first class hotel with related facilities and amenities (the «Hotel')I and WHEREAS, Authority has agreed with City to operate and maintain, or cause to be operated and maintained, the golf course, seven (7) tennis courts, clubhouse, parking areas, landscaping, access and service roads and related facilities and amenities on Parcel 5 (all collectively referred to herein as the «Recreation Facilities«); and I WHEREAS, Authority and Hotel Lessee intend that construction, operation and maintenance of the Recreation Facilities and Hotel in a complementary manner will enhance land utilization and values in the area, wiII draw visitors and conferences to the City and patrons to the Recreation Facilities, and wilt result in increased tax revenues to City and user fees and charges to Authority, and room rent, sublease fees and other revenues to Hotel Lessee; and WHEREAS, as an inducement to Hotel Lessee, to construct, operate and maintain the Hotel on Parcel I, Authority desires to grant certain use oi'he Recreation Facilities by Hotel guests, subject to the terms, conditions and limitations contained in this Agreement, NOW, THEREFORE, in consideration of their mutual covenants and promises hereinafter set forth, and subject to all the terms, conditions, limitations and other provisions of this Agreement, the pa? ties hereto agree as follows: I. [5 100] DEYELOPWIENT OF THE RECREATION FACILITIES A. [5 101] Design, Development and Construction of the Golf Course Authority agrees that Agency may design, develop and construct on Parcel 5, a first class regulation 18-hole golf course (the "Course" ), as provided in Section 1437 of the Lease. The Course shall include a first class clubhouse containing facilities commonly found ln a clubhouse fot a first class golf course and tennis club, such as, restaurant, pro shop, Iockers and similar facilities. B, [$ 102] Design, Development and Construction of the Tennis Courts 1. [5 103] Initial Courts Authority agrees that Agency may design, develop and construct on Parcel 5, seven (7) first class tennis 'courts (the "Courts"), as provided in Section 1437 of the Lease. The Courts shall be located generally as shown on the Map of Recreation Facilities attached hereto as Exhibit "C". Four (4) of the Courts (as Identified on said Exhibit "C") shall be constructed at the cost and expense of Hotel Lessee and designated by Authority for priority Hotel use in accordance with this Agreement, and shall be referred to herein as the Hotel Courts. Three (3) of the Courts (as identified on said Exhibit "C") shall be constructed at the cost and expense of other than Hotel Lessee and designated by Authority for certain Hotel use In accordance with this Agreement, and shall be referred to herein as the Club Courts. 2. [5 104] Additional Courts Authority agrees to design, develop and construct on Parcel 5, three (3) additional first class tennis courts (the "Additional Courts" ), as provided in this Section 104. If Hotel Lessee, at any time during the first i'ifteen (15) years after the Effective Date of Lease, or if Authority, at any time during the term of this Agreement, determines in its respective reasonable ]udgment that current and continuing demand for use of the seven (7) initial Courts by Groups (as hereinafter defined), Hotel guests and other players provided I'r herein, requires increasing the number of tennis courts to accommodate play in a reasonably convenient manner, then either Hotel Lessee or Authority, as the case may be, may elect, by delivering written notice to the other party, to add the three (3) Additional Courts to the Recreation Pacilities. In the event of such election by either party, Authority shall design, develop and construct the Additional Courts comparable in quality to the initial courts.. If either Hotel Lessee or Authority, as the ease may be, elects to add the three Additional Courts, all three (3) of such Additional Courts shall be looated contiguous to the Initial Courts. Two of such Additional 'Courts shall be located contiguous to the initial Hotel Courta, and when constructed shall be deemed part of the Hotel Courts for all purposes under this Agreement. One of such Additional Courts shall be located contiguous to the initial Club Courts, and when constructed shall be deemed part of the Club Courts for aB purposes under this Agreement. The actual costs of construction of the two (2) additional Hotel Courts shall be reimbursed by Hotel Lessee to Authority within thirty (30) days after written demand therefor by Authority specifying the amount of such costs and certifying the accuracy thereof. Authority may require Hotel Lessee to provide reasonable security for the payment of such amount prior to the commencement of construction, such as cash deposit or letter of credit covering Authority's reasonable estimate of the cost of the additional Hotel Courts. The actual costs of construction for the two (2) additional Hotel Cou~ts to be reimbursed by Hotel Lessee shaB be the costs of permit fees and design services, base and surfacing, striping, fences, lighting, nets, drinking fountains and aB other appurtenances, except grading the pad and bringing utilities to the Hotel Courts area. The actual costs of construction of any additional Club Court shall be borne by Authority. In the event the two additional Hotel Courts cannot physicaBy be located contiguous to the initial Hotel Courts, then such additional Hotel Courts shall be physically located contiguous to the Club Courts and, upon completion thereof, the two Club Courts located closest to the Initial Hotel Courts shaB be deemed part of the Hotel Courts end the two additional Hotel Courts shall be deemed part of the Club Courts. II. (g 200) MAINTENANCEOF RECREATION FACILITIES The parties recognise and agree that a program of continuing maintenance wiB be required to insure the Recreation Pacilitles will remain in first class condition. As used in this paragraph "first class conditions shall mean that the Recreation Facilities shall be kept in decent, safe and sanitary condition, in compliance with applicable laws, and equal in value, quality and use to the condition of the Recreation Facilities as originaBy constructed reasonable wear and tear excepted. Authority agrees to maintain or cause to be maintained (and, subJect to the limitations set forth herein with respect to damage or destruction and eminent domain, to repair or replace as necessary) each part of the Recreation Pacilities in a fimt class condition at aB times throughout the term of this Agreement, and to make aB repairs and replacements to the 'furniture, fixtures and equipment contained thereon or therein necessary to maintain such I'urniture, fixtures and equipment in first class condition. As between Authority and Hotel Lessee, Authority shall bear the costs and expenses for maintenance oi'he Recreation Pacilities. III. (2 300] OPERATION OF RECREATION FACILITIES A. [g 3011 Generagy Authority shall operate or cause the Recreation Facilities to be operated in suchfirst class manner as is consistent with the physical condition in which they are required to be maintained. Authority may in its discretion, operate the Recreation Facilities, or portion thereof, with its own forces, or lease or enter into contracts for the operation of all or any portion or portions of the Recreation Facilities to a third party operator or operators who shall be required to operate the Recreation Pacilities, or portion thereof, as required by this Agreement. If Authority elects to lease or contract for the operation of the Recreation Pacilities, or portion thereof, Hotel Lessee shall be entitled to submit a proposal, -3- along with other third parties, to lease or operate the Recreation Pacilities, or portion thereof, in accordance with established terms and conditions as offered by Authority. As between Authority and Hotel Lessee, Authority shall bear the costs and expenses for operation of the Recreation Facilities. B. [g 302] Impositions (Including Taxes and Assessments) Hotel Lessee shall pay or cause to be paid such Impositions (and only such Imposltions), with respect to the Recreation Facilities required to be paid by Hotel Lessee, and in the manner snd subject to the terms and conditions, as referred to In Section 609 of the Lease. In accordance with California Revenue and Taxation Code Section 10'l.6(a), Authority states that by entering into this Recreation Pacilities Agreement, a possessor y interest subject to property taxes may be created. Hotel Lessee or other party in whom the possessory Interest is vested may be subject to the payment of property taxes levied on such interest; provided, however, that Hotel Lessee shall have nO obligation to pay any possessory Interest tax, levy or imposition assessed, levied, confirmed, imposed upon or growing or becoming due and payable out of or in respect of becoming a lien on Parcel 5 and/or the Recreation Facilities except as expressly provided in Section 609 of the Lease. IY. [6 400] FEES AND CHARGES A. [6 401] Generally Authority may charge to persons using the Recreation Facilities use and instruction fees, Including without limitation, green fees, court fees, cart fees, golf and tennis lesson fees and equipment rental and storage fees, in amounts and upon conditions determined by Authority in its sole and absolute discretion, but without discrimination against Hotel guests. Hotel Lessee shaH make no extra charges, mark- ups or surcharges attributable to the use of the Recreation Facilities, other than those on behalf of Authority. Any money or value received by Hotel Lessee in violation of such restriction, or any money or value received by Hotel Lessee in connection with the use of the Recreation Facilities, or any portion thereof, with the consent of Authority (which Authority may give in its sole and absolute discretion, except for charging privileges as provided in Section 402), shall be the property of Authority snd shall be paid to Authority not later than the fifteenth (15th) day of the month immediately following the month in which such money or value Is received, except for amounts charged by Hotel guests to their Hotel room accounts which shall be paid at the times set forth in Section 402. Any money or value not paid by such date shall accrue interest at the Bank of America prime rate plus one percent (195) from the date of delinquenby until received by Authority. The provisions of this Section 401 shall not apply to advance deposits made by Hotel guests to Hotel Lessee which are to reimburse Hotel I.essee for forfeitable deposits made by Hotel Lessee to Authority on their account, or which are forfeitable to Hotel Lessee if such Hotel guests fail to either perform their obligations whether for room rental or use of the Recreation Facilities reserved by Hotel Lessee on their account, and such advance deposits for reimbursement or security for performance shall be the property of Hotel Lessee. B. [0 402] Charging Privileges Hotel guests shall have the right to charge meals, beverages, goods, and services purchased, and fees such as greens fees, cart fees and oourt fees incurred in any part of the Recreation Facilities to their Botel room accounts subject to tetms and conditions established by Authority. Such terms and conditions shall include procedures which 'will allow Hotel Lessee to collect amounts charged from Hotel guests prior to departure. Authority shall bill Hotel Lessee monthly for such charges, and Hotel Lessee agrees,to pay such bill within ten (10) days after receipt thereof. Hotel Lessee shall be obligated to pay Authority the amount of charges so billed, without offset, other than the discount actually charged Hotel Lessee as provided for in the next sentence of this Section 402) &nd regardless of whether or not Hotel Lessee has collected or ever collects such amounts from Hotel guests. The terms and conditions established by Authority shall include a procedure for Hotel Lessee to be credited with amounts of discount actually charged to Hotel Lessee by credit card issuers, as a result of Recreation Facilities charges billed to a Hotel room account and paid by Hotel guests with credit cards. Any charges not paid within the time required herein shaH accrue interest from the date of delinquency until the date paid to Authority at the Bank of America prime rate pIus one percent (1%). If Hotel Lessee shall be delinquent in the payment of three (3) months charges or more within any twelve (12) consecutive calendar months, Authority may at its option suspend the charging privileges of Hotel Lessee for any period Authority deems appropriate, or in its discretion terminate such charging privileges permanently; provided, however, that Authobity shall first have given Hotel Lessee written notice, after the second delinquency but prior to the occurrence of the third or subsequent delinquency, stating that Authority intends to exercise its rights of suspension or termination of charging privileges under this Section 402 (specifying which action it intends to take), specifically teferring to this Section 402, upon the occurrence of the next delinquency within such twelve month period and such notice shall be contained on each and every monthly bill thereafter until the expiration of such twelve month period (which expiration date, day, month and year, must be set forth in each such bill). V. [0 500] ALTERATIONOF PARCEL 5 AND/OR THE RECREATION FACILITIES Authority shall have the right, without consent of Hotel Lessee, to make any altetations of, additions to or changes in the Recreation Facilities, or to add or subtract property from Parcel 5 or change the configuration .thereof, or use or cause the use of portions of Parcel 5 for purposes other than (but compatible with) the Recreation Facilities, provided that any such acts of Authority do not prevent the operation on Parcel 5 (if and as so changed) of a first class Course, Courts and Additional Courts (if applicable) and related facilities comparable In quality, value and use to the Course and Courts existing prior to such change and in comparable proximity to the Hotel; except that Hotel Lessee shall have reasonable approval over any change in location of the clubhouse and/or the Courts. If the property encompassed within Parcel 5 is changed by Authority, Agency and Authority shall execute, acknowledge and record a supplement tc the Lease and this Agreement identifying such change, and upon such recordation and without any act required by Hotel Lessee or any other person or entity with any interest in Parcel 5, the Lease and this Agreement shall terminate with respect to any property excluded and become effective with respect to any property added. Ninety (80) days prior to recordation of the supplement, Authority shall notify Hotel Lessee of its intent to record said supplement providing Hotel Lessee with thg basic details thereof. Without limiting the generality of the foregoing, Hotel Lessee understands and agrees that Parcel 5 and property contiguous thereto has been or is a land fillsite. As portions of the land fill become available for other uses, Authority may, In its discretion, construct, relocate or replace, or cause to be constructed, relocated or replaced, portions of the Recreation Facilities on the land made available therefor and/or reclaim portions of Parcel 5 for other uses. Any such acts by Authority shalI comply with the conditions for changing the Recreation Facilities set forth in the preceding paragraph. VI. [g 600] ADVERTISING Hotel Lessee shall have the right to advertise, promote and market the Recreation Facilities as an amenity available to Hotel guests, consistent with the use set forth in this Agreement. VH. [8 700] RULES AND REGULATIONS Authority may establish, without consent of Hotel Lessee, but without discrimination against Hotel guests, rules and regulations governing the use and operation of the Recreation Facilities and any portion thereof. Such rules and regulations shell include hours of operation reasonable for a first class golf course and tennis club to serve the community, taking Into consideration service to the fire't class Hotel. Hotel Lessee agrees to advise Hotel guests of the rules and regulations in effect from time to time and to cooperate with Authority so that Hotel guests comply with such rules and regulations. In any event, all Hotel guests shall be subject to such rules and regulations, including the remedies for vlolatlon thereof, in like manner as other users of the Recreation Facilities generally. Authority shall adopt as part of its rules and regulatonsp criteria and procedures for use of the Recreation Facilities. Such criteria and procedures shall include and be consistent with the "Reservation Procedures" set forth in Exhibit "D" attached hereto. Suoh Reservation Procedures may be amended only with the prior written consent of Hotel Lessee, which shall not be withheld if such amendment does not impair the utilityor economic benefit of the Recreation Facilities to the Hotel as contemplated by this Agreement. In the event of any dispute as to whether such proposed amendment will so impait'he utility or economic benefit of the Recreation Facilities to the Hotel, the dispute shall be submitted to arbitration according to the procedures described in Section 1214 of the Lease. VIII. [8 800] ASSIGNkIENT AND TRANSFER A. [8 801] Hotel Lessee Hotel Lessee shall not, except as expressly permitted by Article 800 of the Lease, and subject to the limitations and conditions therein contained, assign this Agreement, nor make any total or partial conveyance, assignment or transfer (including sublease) in any other mode or for m of the whole or any part of its rights in the Recreation Pacillties. Nothing herein shall prevent Hotel Lessee from entering into an operating lease, management contract, license agreement, franchise or other similar arrangement with an operator and/or franchism of the Hotel as provided in Section 502 of the Lease. The approved operator unde~ the Lease may operate under this Agreement provided that Hotel Lessee shall remain liable for its obligations under this Agreement. B. [g 8021 Authority In the event Authority, Agency and/or City conveys, assigns or transfers (including lease) in any other mode or form the whole or any part of Parcel 5 or the Recreation Facilities, which Authority, Agency and City shall have.'the right to do from time to time and at any time without any consent of Hotel Lessee being required, then any such conveyance, assignment or transfer shall be subject to the terms of this Agreement and the Lease applicable to Parcel 5 and the Recreation Facilities. In the event Authority enters into a sublease or an operating agreement for the operation of the Recreation Facilities, Authority shall remain liable for its obligations under this Agree m ent. This Section 802 shall not apply to assignments, conveyances or transfers for financing which shall be governed by Section 902 of this Agreement. IX. [ g 900) MORTGAGES A. [9 901[ Hotel Lessee Hotel Lessee shall have the right, but only as expressly permitted by Article 900 of the Lease, and subject to the limitations and conditions therein contained, to mortgage, pledge, deed in trust and/or collaterally assign its interest in this Agreement or the Recreation Facilities, or assign or pledge assignment of the same as security for debt. Leasehold mortgagees (as defined in the Lease), if any, shall have the same rights with respect to this Agteement as set forth in Section 902 oi'he Leaie as applicable. Any action taken by a leasehold mortgagee under Section 902 of the Lease which operates to preserve its rights under the Lease (including obtaining a new l,ease) shall operate to preserve such leasehold mortgagee's rights under this Agree m ent. B. [9 902) Authority In the event Authority, Agency and/or City shall mortgage, pledge, deed in trust, assign rents, issues and profits and/or collaterally assign the whole or any part of Parcel 5 or the Recreation Facilites, which Authority, Agency and City shall have the right to do from time to time and at any time without any consent of Hotel Lessee being required, then this Agreement and the rights of Hotel Lessee in Parcel 5 and the Recreation Facilities under this Agreement and the Lease shall be subject and subordinate to any such mortgage, pledge or other encumbrance. In the event Parcel 5, or the Recreation FacHities, or any portion of either, is assigned, conveyed or transferred in foreclosute or in lieu of toreclosure, then this Agreement shall terminate with respect to the Recreation Facilities, or such portion. Provided, however that Authority shall at its cost and expense, replace any Hotel Courts so taken, comparable in quality, value and use to the Courts existing prior to the assignment, conveyance or transfer and in comparable proximity and convenience to the Hotel. If the Agreement is so terminated, then the rental required by the Lease to be paid by Hotel Lessee thereunder to Agency, shall be reduced in the proportionwhich the value of Hotel Lessee's Interest in the Recreation Facilities, or portionthereof so terminated, bears to the total value of Hotel Lessee's interest in Parcel 1 and the Ballroom Facility, Common Area and Recreation Pacilities. The amount of such rental reduction, if any, shalt be determined using the procedure set forth in Section 203, paragraph 1.(d), of the Lease> except for the valuation criteria set forthin subparagraphs (IH) and (iv), which shall be as set forth in this Section 902. In the event any private conveyee, assignee or transferee (other than inforeclosure or in lieu of foreclosure as provided In the first paragraph of this Section)from Authority, Agency and/or City of the whole or any part of Parcel 5 or the Recreation Facilities should mortgage, pledge, deed in trust, assign rents, issues and profits and/or collaterally assign the whole or any part of Parcel 5 or the Recreation Facilities, then any such encumbrance shall be subject and subordinate to the terms ofthis Agreement. X. [g 1000) DAMAGE OR DESTRUCTION Subject to the next paragraph, if the clubhouse on the Course shall be damaged or destroyed by any casualty (I) where the cost of restoration will not exceed fifty percent (50%) of the full Insurable value of the clubhouse as defined below In this Section 1000; and (ii) which is of a type which Lessee is required to Insure against pursuant to paragraph 1. of Section 1002 of the Lease or Is actually Insured against byAuthority; and (ii0 where the net insurance proceeds actually available to Authority (where Insured against for causes which Lessee is not required to insure against under the Lease) are sufficient to restore the clubhouse, then Authority agrees to make full repair of said damage and to restore the clubhouse to the condition which existed priorto said damage with such alterations or changes thereto as are required for morefunctional improvements or are otherwise required by then current building codex'. Ifthe clubhouse shall be damaged or destroyed by any casualty where the cost of restoration will exceed the amount referred to In subdivision (i) above, or where the casualty Is of a type which Lessee Is not required to Insure against pursuant to paragraph 1. of Section 1002 of the Lease and is not actually insured against, or where the net insurance proceeds actually available to Authority (where Insured against for causes which Lessee Is not required to Insure against under the Lease) for restoration are insui'ficient to restore the clubhouse, Authority shall not be obligated to restore the clubhouse and If Authority elects not to restore the clubhouse, Authority maycease operation of all or any portion of the Recreation Pacilities (except the Hotel Courts which Authority shall continue to operate) but so long as Authority operates any portion of the Recreation Facilities this Agreement shall be applicable thereto. Ifthe Recreation Facilities (other than the clubhouse) shall be substantially damaged or destroyed by any casualty, Authority shall not be obligated to restore the Recreation Facilities (except for the Hotel Courts which Authority shall restore and continue to operate) and if Authority elects not.to restore such damage, Authority may ceaseoperation of all or any portion of the Recreation Facilities (except for such tennis courts), but so long as Authority operates any portion of the Recreation Facilities thisAgreement shall be appHcable thereto. -8- Notwithstanding the preceding paragraph to the contrary, in the event of major damage or destruction (as defined below in this paragraph) to the clubhouse during the last nine (9) years of the term of thfs Agreement, Authority may elect not to restore the clubhouse and cease operation of the Recreation Facilities as provided above. Major damage or destruction to the clubhouse as used In this paragraph means suah damage or destruction that the cost of restoration will exceed twenty-five percent (2596) of the full Insurable value of the clubhouse as defined below in this Section 1000, which percentage amount shall be reduced monthly on a pro-rata basis over the nine (9) year period. For example, if the damage occurs four and one-half (4-1/2) years prior to the end of the term of this Agreement, maJor damage or destruction shall mean cost of restoratfon fn excess of twelve and one-half percent (12-1/296) of the full insurable value of the olubhouse. lf Authority elects not to restore any damage as permitted above and ta cease operation of the Recreation Facflities as provided above, then the rental required by the I,ease to be paid by Hotel Lessee thereunder to Agency, shall be reduced in the proportion which the value of Hotel Lessee's interest In the Recreation Pacilfties bears to the total value of Hotel Lessee's interest in Parcel 1 and the Ballroom Pacility, Common Area and Recreation Facilities. The amount of suoh rental reduction, If any, shall be determined using the procedure set forth in Section 203, paragraph 1.(d), of the Lease, except for the valuation criteria, which shall be as set forth in this par agraph. The term "full Insurable value" as used in this Section 1000 shall mean the actual replacement cost excluding the cast of excavation, foundation and footings below the ground level of the clubhouse. Xl. [0 1100) EMINENT DOMAIN In the event of the taking by emfnent domain of the entire Recreation Facilities, or any part thereof, Section 1100 of the Lease shall apply. In the event af any partial taking of the Recreation Facilities where'his Agreement remains in effect, the award attributable to the Recreation Facilities (to the extent needed therefor) shall be used and applied to improve the portion of the Recreatfon Facilities not so taken to provide as complete recreatian facilities as is possible under the circumstances consistent with this Agreement, to the extent of the net amount of such award available therefor after payment of bonds, mortgages, or other such obligations applicable to Parcel 5 or the Recreation Facilities and requfred to be used therefor in lieu of improvement of the remaining Recreation Pacilities. Xil. [01200) TERM A. [g 1201] Generally The term of this Agreement shall be the period commencing on the Effective Date of Lease as provided in Section 202 of the Lease, and terminating I'ifty (50) years thereafter, or on the date resulting from an earlier terrninatfon as hereinafter set forth, except that this Agreement shall 'terminate upon expiration or earlier terminatfon of the Lease. -9- B. (9 12021 Early Termination Notwithstanding the foregoing, in the event that~ (1) the Recreation Facilities become obsolete in that there is general disuse of the same type and quality of facilities within the San Francisco Bay Area; or (2) the use of the Course Is less than fifty thousand (50,000) rounds pet year (a round being one 18 hole game by one indfvlduai) for at least two (2) Lease Years in succession provided that the operation has not been interrupted as a result of damage, destruction or condemnation during such two (2) year period) or (3) the Recreation Facilities are not self supporting after and despite the best efforts of Authority for at least two (2) Lease Years in succession, and the operation hss not been interrupted as e result of damage, destruction or condemnation during such two (2) year period meaning that operating revenues derived directly from the use of the Recreation Facilities do not cover the operating costs of the Recreation Facilities, including maintenance repait'nd replacement costs but excluding eny amount for amortization of initial capital construction costs or financing costs associated therewith provided" that Authority shall first offer Hotel Lessee the right to enter into a triple net sublease or operating agreement with Authority, If legally permitted for a year to year term, to operate the Recreation Facilities, under which It pays Authority ten percent (10%) of all gross revenues derived from the Recreation Faoilities, provided that Authority shall have the right to resume operation at the expiration of any one year term with ninety (90) days prior notice to Hotel Lessee or Hotel Lessee may renew the one year term upon ninety (90) days notice to Authority, V Authority does no resume its operation of the Recreation FaclHties; provided that if Authority resumes operation of the Recreation Facilities and again thereafter seeks to terminate this Agreement undet'his subparagraph (3), Authority shall allow Hotel Lessee at least ten (10) renewals of Hotel Lessee's year- to-year terms before exercising its right to resume operations; then Authority at its option, may terminate this Agreement, upon thirty (30) days prior written notice to Hotel Lessee specifying the condition or conditions upon which the termination is based. In the event of any dispute as to whether such condition or conditions exists, the dispute shall be submitted to arbitration according to the procedures described in Section 1214 of the Lease. Upon any such termination, neither Hotel Lessee, Authority, Agency or any other persons (Including leasehold mortgagees, If any), shall have any further rights, obligations or liabilities to each other with respect to the Recreation Facilities under this Agreement or the Lease, Authority shall only have the right to terminate this Agreement as a result of paragraph (1), (2) or (3) above If Authority ceases at all times during the remaining terra of the Lease to maintain and operate the Recreation Facilities from and after the date such termination takes effect. Notwithstanding any termination pursuant to -10- paragraph (1), (2) or (3) above and the Recreation Facilities cease to operate, Hotel Lessee shall retain the right, at its cost and expense, to maintain and operate privately for the benefit of Hotel only all Hotel Courts or any substitute first class courts caused to be designed, developed snd constructed by Authority at no cost ot expense to Hotel Lessee, comparable in quality, value and use to the Courts existing prior to such termination and in comparable proximity and convenience to the Hotel. Hotel Lessee and Authority (or another provider of substitute courts) shall enter Into such documents as are necessary to make the Hotel Courts and/or substitution courts available to the Hotel as provided in the preceding sentence. If Authority elects to cease operations of the Recreation Facilities as provided above, there shall be a rental reduction under the Lease determined iri the same manner as the third full paragraph under Section 1000. Hotel Lessee and Authority, with the written consent of Agency and any leasehold mortgsgees undet'he Lease, may also terminate this Agreement at any time by mutual agreement. C. [5 1203) Hotel Lessee Rights After Expiration of this Agteement 1. [g 1204[ Notice of Intentions re: Recreation Facilities Not later than the end of the forty-fifth(45th) year after the Effective Date of Lease, Authority agrees to Inform Hotel Lessee in writing whether and which Recreation Pacilities Authority intends to continue operating after the expiration of this Agreement, and for what period, and Its intentions with respect to development and/or use thereof for the first ten (10) year renewal period under the Lease. Thereafter, Authority shall inform Hotel Lessee of such intentIons with respect to each ten (10) year renewal period under the Lease, at least five (5) years prior to the date fot'ommencement of each such renewal period. Authority's obligation hereunder shall be limited to a good I'aith representatIon of its intentions and plans with respect to the Recreation Facilities, as known by Authority as oi'he time each such representation is required to be made. Authority shall be under no obligation to Hotel Lessee to carry out such intentions and plans, which may thereafter be abandoned or changed in Authority's discretion, provided such representations were made in good faith, except that if Authority makes an express written commitment to Hotel Lessee, Authority shall comply with such commitment. 2. [2 1205] Priority if Recreation Facilities Operated During any time after this Agreement has expired by its terms after fifty (50) years, and the Lease is in effect, but only during such time as Authority (in its discretion) is actually operating the Recreation Facilities, or a portion thereof, Authority agrees to operate the Recreation Facilities> or such portion thereof, in a manner consistent with then current practices for operating comparable facQities and without discrimination against Hotel Lessee which will provide reasonable access to Hotel guests to use the Recreation Facilities with such reservation procedures as to provide Hotel Lessee with similar usa enjoyed by Hotel Lessee during the preceding ten (10) years. Subject to such requirement for reasonable access, Authority shall have the right to operate the Recreation Facilities, or such portion thereof, as it deems appropriate in its sole and absolute discretion. In the event of any dispute as to -11- whether the manner of such operation is providing reasonable access to Hotel guests, with such reservation procedures ss to provide Hotel Lessee with similar use enjoyed by Hotel Lessee during the preceding ten (10) years, the dispute shall be submitted to arbitration according to the procedures described In Section 1214 of the Lease. 3. [g 1208] Survival of Provisions Sections 1204 and 1205, but only such Sections, shall survive the expiration of this Agreement by its terms aftet fifty (50) years. Such sections shall not survive an early termination of this Agreement pursuant to Section 1202 it being understood that Authority must cease operations of the Recreation Facilities under Section 1202 as a condition to such early termination. Such Sections shall also automatically terminate with respect to any portions of the Recreation Facilities which are not actually used fot the purposes provided for in this Agreement. XIH. (5 1300] DEFAULTS AND REMEDIES A. [2 1301] Defaults - General Subject to the extensions of t(me set forth in Section 1311> failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who falls or delays must immediately commence to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence, and during any period of curing shall not be in default. The injured party shall give written notice of default to the party In default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of dei'suit. Except as otherwise expressly provided In this Agreement, any failures or delays by either party In asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies, B. [5 1302] Legal Actions 1. [g 1303] Institution of Legal Actions ln addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted In the Superior Court of the County of Santa Clara, State of California, in any other appropriate court of that county, or in the Federal District Court In the Northern District of Calli'ornia. 2. [2 1304] Applicable Law The laws of the State of California shaH govern the interpretation and enforcement of this Agreement. -12- 3. [g 1305] Acceptance oi'ervice of Process In the event that any legal action is commenced by Hotel Lessee against Authority, service of process on Authority shall be made by personal service upon the Executive Director or Chairman of Authority, or in such other manner as may be provided by law. In the event that any legal action is commenced by Authority against Hotel Lessee, service of process on Hotel Lessee shall be made by personal service upon one of the general partners of Hotel Lessee or in such manner as may be provided by law. 4. [8 1308] Attorneys'ees and Court Costs In the event that either Authority or Hotel Lessee shall bring or commence an action or legal proceeding or arbitration to interpret this Agreement, enforce the terms and conditions of this Agreement or to obtain damages against the other party arising from any default under or violation of this Agreement, then the prevailing party shall be entitled to and shall be paid reasonable attorneys'ees and court costs as may be fixed by the court or jury therefor or the arbitrators. C. [g 1307] R/ghts and Remedies are Cumulative Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. D. [g 1308] Damages 'f either party defaults with regard to any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days After service of the notice of default and is not cured promptly In a continuous and diligent manner within a reasonable period of time after commencement, the defaulting party shall be liable to the nondei'suiting party for any damages caused by such default, and the nondefaulting party may thereafter (but not before) commence sn action for damages against the defaulting party with respect to such default. E. [g 1809] Specific Perfor mance If either party defaults with regard to any of the provisions of this Agreement, the nondefsulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous.and diligent manner within a reasonable period oi'ime after commencement the nondefaulting pat ty, at its option, may thereafter (but not before) commence an action for specific performance of the terms of this Agreement pertaining to such default. -13- F. [5 1310] Suspension of Obligations If Hotel Lessee materially defaults fn any oi'ts obligations hereunder or under the Lease pertaining to the Recreation Facilities, Authority shall serve written notice of default upon Hotel Lessee. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, Authority at Its option, may thereafter (but not before) suspend its obligations under this Agreement, including but not limited to its obligations to provide use of the Recreation Facilities to Hotel guests, during any period In which Hotel Lessee remains ln default under any material'provision of this Agreement or any materiel provision of the Lease pertaining to the Recreation Pacllities, G. [g 1311] Enforced Delay in Performance for Causes Beyond Control of ~Part Por the purposes of any of the ptovisions of this Agreement, neither Authority nor Hotel Lessee, as the case may be, nor any successot in interest, shall be considered in breach of, or default in, its obligations under this Agreement (exclusive of the obligation to pay money) as a result of the enforced delay in the performance of such obligations due to causes beyond its reasonable control and without its fault or negligence, including, but not limited to any law> regulation, ordinance or order of any public agency, acts of public agencies, acts of God, acts of the public enemy, acts of the Federal Government, acts of the other party (including but not limited to delays in performing such other party's obligations pursuant to this Agreement), fhes, floods, epidemics, quarantine restrictions, strikes, labor disputes, i'reight embargos, inability to obtain materials or supplies or unusually severe weather or delays of contractors or subcontractors due to such causes; it being the purpose and intent oi'his provision that In the event of the occurrence of any such enforced delay, the time or times for performance of the obHgatlons of Authority or Hotel Lessee, as the case may be, shall be extended for the period of such enforced delay: Provided, That the party seeking the benefit of the provision of this Section shall, within ten (10) days after'he beginning of any such enforced delay, have first notified the other party thereof ln writing, and of the cause or causes thereof, and informed the other party that it was electing to take an extention for up to the period of the enforced delay. XIV. [5 1400] GENERAL PROVISIONS A. [ g 1401] Notices All notices provided for in this Agreement shall be in wtiting and shall be deemed delivered on the day of delivery if in person to the Executive Director of Authority or to one of the general partners of Hotel Lessee, or on the second business -14- day foIlowing Its deposit in the United States mail, if dispatched by registered orcertified mail, postage prepaid, addressed as followsi To Authority: City Hall 1500 Warburton Avenue Santa.CIaia, CA 95050 To Hotel Lessee: SCCC Associates 305 Montague Expressway Santa Clara, CA 95054 Either party may give to the other written notice of change of address, in which event,any notice or request shall thereafter be g'iven to it as above provided at such address. B [g 1403j Exhibits All exhibits attached to this Agreement shall be deemed to be incorporatedherein by the individual reference to each such exhibit, and all such exhibits shall bedeemed to be a part of this Agreement as though set forth in full in the body of theAgreement. C. [g 1403) Headings The section and subsection headings used in this Agreement are for convenienceof reference only. They shall not be construed to limit or extend the meaning of anypart of this Agreement, and shall not be deemed relevant in resolving any question ofinterpretation or construction of any section of this Agreement. D. [g 1404] Severability In case any one or more of the provisions contained herein> shall for any reasonbe held to be invalid, illegal or unenforceable in any respect, such Invalidity, illegalityor unenforceability shall not effect any other provision of this Agreement. E. [0 14051 Capacity to Execute Agreement Authority and Hotel Lessee each warrant that neither the execution of thisAgreement noi the consummation of the transactions contemplated hereby shallviolate any provision of lew or judgment, writ, injunction, order or decree of any courtor governmental authority having jurisdiction over Authority or Hotel Lessee; iesult inor constitute a breach or default under any material indenture, contract, othercornrnitment or restriction to which either is a party or by which either is bound; orrequire any consent, vote or approval which has not been taken, or at the time of thetransaction involved shall not have been given or taken. Each party covenants that it has and willcontinue to have throughout the term of this Agreement and any extensionthereof', the full right to enter into this Agreement and perform its obligationshereundei. -15- F. [9 1406] Counterparts This Agreement may be executed in several counterparts each of'which is an original, and all of which together constitute but one and the same document. G. [g 1407] Execution and Recordation The parties shall execute and record this Agreement concurrently with the execution and recordation of the Lease by Agency and Hotel Lessee. H. [g 14081 Successors, Mutuality, Running With Land Subject to the provisions of this Agreement which limit or terminate the provlslons hereof, or any of them, including but not limited to Articles 500, 800, 900 and 1200, the covenants and agreements contained In this Agreement are made for the direct mutual and reciprocal benefit of Botel Lessee, its legal representatives, successors and assigns, and Parcel 1, and of Authority, its legal representatives, successors end assigns, and Parcel 5 and each such covenant and agreement shall create mutual equitable servitudes upon the respective real properties and shall create reciprocal rights and obligations between the owners, lessors, lessees and any other permissive users of such real properties end privity of contract and estate between the parties hereto and their respective successors and asslgnsi and shall, as to the owners, lessors, lessees and other permissive users of each parcel of real property and their respective successors and assigns operate as covenants running with the land. l. [g 1409] Entire Agreement Any agreements, warranties, or representations concerning the subject matter of this Agreement not expressly contained herein, in the Lease or in the Disposition and Development Agreement (the "Development Agreement" ) (until such time as it terminates), shall In no way bind either Hotel Lessee or Authority, and Hotel Lessee end Authority expressly waive all claims for damages by reason of any statement, representation, warranty, promise or agreement, if any, not contained in'this Agreement, the Lease or In the Development Agreement, This Agreement supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements and understandings, whether written or oral, between Hotel Lessee and its agents and Authority and fts agents with respect to the Recreation Facilities or this Agreement. This Agreement (together with provisions of the Lease and the Development Agreement applicable to Parcel 5 and the Recreation Facilites) constitute the entire agreement between the parties hereto and no addition to, or modifications of, any term or provision of this Agreement shall be effective until and unless set forth in a written instrument signed by both Hotel Lessee and Authority. J. [S 1410] Rights Reserved This Agreement and the Lease constitute the entire agreement between Authority and Hotel Lessee with respect to Parcel 5 and the Recreation Facilities, Hotel Lessee does not have any othe'r rights in Parcel 5 or the Recreation Facilities other than as expressly set forth in this Agree'ment and the Lease. -16- IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the day and year first above written. SPORTS AND OPEN SPACE AUTHORITY OF THE CITY OF SANTA CLARA (Authority) SCCC ASSOCIATES, a California general partnership By: Techmart Associates I Limited Partnership, a limited partnership, as General Partner By: Techmert Properties> Inc., a California corporation, as General Partner of Techmart Associates I Lfmited Partnership Kimball W. Small, President By: DTR Santa Clara, Inc., an Arizona Corporation doing business in California as Arizona DTR Santa Clara, Inc., as Gener I Partner Its: /M~'w. By: Corporate Associates - Santa Clara Limited Partnership, s limited partnership, as General Partner By: DTR Santa Clara, Inc., an Arizona corporation doing business in California as Arizona DTR Santa Clara, Inc., as General Partner of Corporate Associates - Santa Clara Limited Partnership -17- APPROVED AS TO PORN: C. Counsertd the Sports and Open Space Authority of the City of Santa Clara The City of Santa Clara, as owner of the fee title to Parcel 5y hereby consents that Authority enter into the above Agreement, and hereby further agrees that, upon expiration or termination of the Lease and Construction Agreement, City will assume the rights and obligations of Authority under the Agreement, if it Is in effect, for the remaining term thereof. CITY OP SANTA CLARA (City) APPROVED AS TO PORN: By: Sp'p A~mM/ city ttttyy y ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss. COUNTY OF SANTA CLARA ) On this ~PA day of 1985, before me, Mazy L. Coronado, a Notary Pub).ic in an for the County of Santa Clara, Stateof California, residing therein, duly commissioned and sworn, per- sonally appeared WILLIAMA. GISSLER, personally known to me to be the Chairman of Sports and Open Space Authority of the City of Santa Clara, the public agency that executed the within instrument, and acknowledged to me that he executed the within instrument on behalfof the said public agency, and acknowledged to me that such public agency executed the same pursuant to its by-laws or a resolution of the governing board of such public agency. IN WITNESS WHEREOF, I have hereunto set my hand and affixed myofficial seal in the County of Santa Clara the day and year in thiscertificate first above written. F: OFRI ttARVt NOTARY ttO t pmlttofe COtttltVO NT Ommtlmlt ~40tOAYeAteAYAt Notary Pu n and for the County of Santa Clara, Stateof California My Commission expires January 27, 1988 (seal) ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) COUNTY OF SANTA CLARA ) On this 29th day of April, 1985, before me, Mary L. Coronado, a Notary Public in and for the County of Santa Clara, State of 'alifornia, residing threin, duly commissioned and sworn, person- ally appeared KIMBALLW. SMALL, personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the written instrument as the President of Techmart prop- erties, Inc., a California corporation, said corporation being the general partner of Techmart Associates II Limited Partnership, a California Limited Partnership, the general partner of SCCC As- sociates II Limited Partnership, a California limited partnership ( "SCCC"), the partnership that executed the within instrument, and acknowledged to me that such corporation and partnership executed the same on behalf of SCCC and that SCCC executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County of Santa Clara the day and year in this certificate first above written. aP >) Mar ado Not in and for the Cou y ta Clara, State of California My Commission expires January 27, 1988 STATE OF ARIZONA COUNTY OF NARICOPA ) ) ss. ) /I9 is< day of g~, 1985, before mepersonal 1)f +pe red PAUL BLANCHARD, e sonya Hkrfdwh fd-me ()or proved to me on the basis of satisfactory evidence)to be the person who executed the within instrument as Vice Presidenton behalf of said corporation; said corporation being a GeneralPartner of SCCC ASSOCIATES, a California general partnership, thegeneral partnership that executed the within instrument for thepurposes and consideration therein expressed, and acknowledged to methat such corporation executed the same, pursuant to its By-Laws anda resolution of its Board of Directors. WITNESS my hand and official seal ss Ju)y]), )g66 MAN/94.06. STATE OF ARIZONA COUNTY OF MARICOPA ) ) ss. ) T 1985, before meAn„~~Personall ppe red PAUL BLANCHARD, personallykn68n td me ((or proved to me on the. basis of satisfactory evidence)to be the person who executed the within instrument as Vice Presidenton behalf of said corporation; said corporation being the GeneralPartner of CORPORATE ASSOCIATES - SANTA CLARA LIMITED PARTNERSHIP,a limited partnership, a General Par'tner of SCCC ASSOCIATES, a'California general partnership, the general partnership that exe-cuted the within instrument for the purposes and considerationtherein expressed, and acknowledged to me that such corporationexecuted the same, as the General Partner of CORPORATE ASSOCIATES- SANTA CLARA LIMITED PARTNERSHIP, a limited partnership, pursuant toits By-Laws and a resolution of its Board of,pirectors. WITNESS my hand and offi '-""""g)",ii)".))'MIutyi) (gs 'AH/'94. 06 ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss. COUNTY OF SANTA CLARA ) On this ~ day of 1985 before me Mary L Coronado, a Notary Public in an for the County of Santa Clara, Stateof California, residing therein, duly commissioned and sworn, per-sonally appeared DONALD R. VON RAESFELD, personally known to me tobe the City Manager of the City of Santa Clara, the public agency thatexecuted the within instrument, and acknowledged to me that heexecuted the within instrument on behalf of the said public agency,and acknowledged to me that such public agency executed the samepursuant to its by-laws or a resolution of the governing board ofsuch public agency. IN wITNESS WHEREOF, I have hereunto set my hand and affixed myofficial seal in the County of Santa Clara the day and year in thiscertificate first above written. $$44eEHI~.e OFFLC)ALSEAI MANYu CONONAOO NOTA4Y PIIBLIG CALIFOEN PRINCIPLE OFFICE IN THE CCVNTY CF CARTE CIAII ETC EINIMap.EEET,IEIE,E 'RpccocELvcREIO&eesse& N n and for theCounty of Santa Clara, Stateof California My CoIRmission expires January 27, 1988 (seal) EXHIBIT "A" Description of Parcel 5 All that certain real property situate In the City of Santa Clara, County ofSanta Clara, State of California, descrJbed as follows: PARCEL A Beginning at a point in the easterly line oF Lafayette Street (90 feet In width),said point being the most easterly point in the boundary of that parce I of realproperty conveyed from the SANTA CLARA RECLAMATION CORPORATION to the City ofSanta Clara by that Grant Deed recorded in Book 9246 of Officla I Records atpage 588, Santa Clara County Records; Thence, from said Po lnt of Beginning along the easterly line of said parcel andof Lafayette Street, North 28'5'est, 1528.69 feet, more or less, Lo Intersectionwith the i inc of that route of the pipeline described in that Indenture made byand between GALLAGMER FRUIT CO. and PACIFIC GAS AND ELECTRIC COMPANY and recordedin Book 592 of Official Records at page 232, said County Records; Thence, along said route of the pipeline the following four (4) courses: North 67 23'ast, 980.95 feet; North 40'3'ast, 419.10 feet; North 9'7'ast, 114.40 feet; North 39'3'0n East, 70.04 feet, more or Jess, to a point ln the westerlyboundary Ifne of Parcel 1 of that real property conveyed to the SANTA CLARA COUNTYFLOOD CONTROL AND WATER DISTRICT by that Grant Deed flied for record April 26, 1973In Book 0346 of Officiai Records at page 667, said County Records; Thence, along said boundary line of Parcel I, South 35 33'4" East> 48 19 feet,more or less, to a point In the easterly boundary line of Parcel Two of that realproperty conveyed to the SANTA CLARA RECLAMATION CORPORATION by that Grant Deedf lied for record October 19, 1970 In Book 9092 of Official Records at page 80,said County Records; Thence, along said boundary line of Parcel Two, the following three (3) courses, South 37'7'0" West, 2.93 feet; South 23 02'0n East, 158.40 feet', South 55'2'0" East, 108.86 feet, more or less, to the northwesterly cornerof Parcel 2 of said real property conveyed to the SANTA CLARA COUNTY FLOOD CONTROLAND WATER DISTRICT; Thence, along the westerly I Ine oF said Parcel 2, South 35 33 '4" East, 1678.64 feet,more or less, to a point in the southerly boundary line ot'aid Parcel Two of therea I property conveyed to the SANTA CLARA RECLAMATION CORPORATION; Thence, along said southerly boundary line the following four (4) courses; North 84'0'outh 23 53'orth 85'5'outh 67'5'f Parcel Three of 30" West, 48,71 feet; East, 7.40 Feet; West, 139.92 feet; West, 443.50 feet, to the most easterly point In the boundarylast said Grant Dead; page 1'f 5 15,350 Thence, along the southerly line of said Parcel Three, South 67 45" West, 1,159.83feet, to the Point of Beginning. And, containing 59.73 Acres, more or less. PARCEL 8 Beginning at the point of intersection of the westerly line of the Southern pacificRailroad right»of-way'50 feet wide) with the northerly line of TASMAN DRIVE asshown on that certain Record of Survey filed in the Office of the County Recorder,Sents Clara County, California, in Book 345 of Maps st pages 1 through S therein; Thence, along said westerly line of the Southern Pacific Railroad right-of-way,North 28 16'6" West, 1,984.85 feet to the point of intersection with the northerlyline of that certain parcel of land conveyed to Santa Clara Municipal Refuse DisposalCorpozstion by deed recorded in Book 6644 of Official Records at page 143 ~ SantaClara County zecords; Thence, along last said northerly line> South 69 56'6" Wes't, 1705.76 feet; Thence, leaving lest said northerly line, North 18 26 '6 " East, 500.02 feet; Thence, North 19 33 '4" West, 790. 21 feet'hence, North 88 54 '3" Wesz, 369.32 feet to the point of intersection with theeasterly line of Great America Parkway (125 feet wide) ss shown on said Record ofSurvey> Thence, along said easterly line of Great America Parkway, South 1 05'7" West,1750,58 feet to the point of intersection with the northeasterly line of Ssn TomasAquino Channel (230 feet wide) ss described in the deed to Santa Clara CountyWater District recorded in Book B498 of Official Records et page .28,. Santa> ClareCounty Records> Thence, along said northeasterly line> South 57 47 '4" East, 950. 15 feet to thePOINT OF TANGENCY with s curve, concave to the southwest, having s radius of 686.10feet; Thence, continuing along said northeasterly line on said curve, through a centralangle of 26 15'4" an arc length of 314.52 feet; Thence, continuing along said northeasterly,line, tangent to said curve, South31 31'0" East> 530.26 feet; Thence, leaving said northeasterly Iinc, Nor tb 63 03 '4" Es s t, 382. 85 fee t> Thence, South 26 56'6" East, 49,35 feet; Thence, North 63 03'4" East, 922.99 feet'hence, North 26 56'6" West, 145.00 fact; Thence, North 63 03'4" East, 175.00 feet; Pape 2 of 5 S. C. 15,350 Thence, South 26 56'6" East, 148.00 feet; Thence, from a tangent bearing North 70 32 '5" East, along the arc of s curve,concave to the south, having a radius of 342.00 feet, through s central angleof 68 50 '9" sn src length of 410. 96 feet, to e point in said northerly lineof Tasmsn Drive; Thence, along said northerly line North 62 06 '9" East> 37. 61 feet, to the pointof Beginning, And, containing.101.813 acres, more or less. Page 3 of 5 S.;:,: ',. 350 OI|4 lA> gf- 1 o,R. 53'k" E ' p 1age 4 of 5 aI MUM ~-iS-BB CITYOf SANTA CLARA("7=~o' CITY GOLF COURSE LAND -"- .. N'H 2553330me gunman VtfiT-R 034.6 LU! 0' ‘ N 59°25'50"E 10,042 (?fl- ‘1 q ' a I l N 90 '7Iqu A‘l4'40c1 4/3523’5‘59‘54’3 ~,\ . . ~ k 5 O5? "wSaaSS‘ ' 6 72.$;€ N g a 52901); "a 7. 29%" Isa..4o r_ _ q _ 5 55° 2' so" E.> Fee} E. GAS LxNa '0; ea.EASEMENT 532/232 QR. , r "7 ac. RECLAMA-nou mz ‘corw. gaag/ew 0.2. 'P f EAacaL Two) C I 43’ ‘ ‘ ‘ I m v. » - g _o N PAR c E L A _. m 7 n ml (P ‘A ‘ 5 ' +A ‘ u! 0b ‘ req = 7,734 crzs . ‘3 '18 $_ - _ 6‘“; 7 m z 9* - r w. A 5;»: r. k ea“ ' 1 f ‘“ w . m 3° 'I (1 (€0.55 . N Munolaouw W 4641‘ Z ‘ .. mN bs‘l'a'oow I393: 7° 5 éb" 55‘ co" E 1,40' r P .Ir 1,4 l-z4- .s' I km r0:4,, fr. W 3454-53 cnv on: E! mm g 3'21: 'J- WK; _ PARCEL A .. "" :351M. I mum ' ’ ' ‘ ' 7 NH Dlrcofor of Public Worh/cuyt‘nplnur TYHG "5673fA ‘_ I ~ ~ Ek I-II BIT I r-so'J I-I- LIJ err 8, /V O'L or r'p rr 37. 6 I ';1 '" f"=5OO >)Rcl.Scrr$ 35'o1'rponp N0gOoo-.A . SW 4-II-8W Page CITY OF SANTA CLARAt 'PARCEL 8 ft". ''".', -'-"'.""" ''' '( C~TY ADOLF COURSE LAND EXHIBIT "B" DESCRIPTION OP PARCEL 1 All of that land situate in the City of Santa Clara, County of santa Clara, State of California described and delineated as Parcel 1 upon that Parcel Map filed for record october 30, 1984 in Book 535 of Maps at pages 47 and 48, Santa Clara County Records, as corrected by a Certificate of Cor- rection filed for record April 24, 1985 as Series No. 8389033. Page 1 of 2 BXHIBIT "8" Map of Parcel I '."- 76 .'-. 3a f?I." ~ 546, 7? 86 " !5,96'6 ao'= -l, 'Pl lif E ? '4j C. j. r 5!RA55 Pit?,.I.)l?'Lif't 7?'T )?76)»l?lir='(7lr! i Lti 7? : &REATA)",rRICA.oRKNY. P.i '?I?, '...",', N46'39'l3'W!:78.04:. 25.67i II? .': FUTURE '-' ~r,: EXFANSiO)7''. I". 'ApiCEL -t (,50& AG.+ " I7 3l. 7G ?? ,, ...0. l20bfcr ~ ?!a.67, . 7 I I ..., .N4 4 "5596" E '7.47 III: )ra 6? I6)? 'd'Z r?9 '-'? page 2 of 2 CXHISIT"C'aza, I oc z \ I - “‘i LOLpARcEL I l 'f .I- ELETREE HGVEL _ ' ‘I‘ 1| LIIOQM r : .: - Jib CENFEFI_ IBIIIDN CENTER- ' exmaw‘h” mam. t r 2 LQ& g 2 ~4 ~ l ul g A 2 X / 1- ~ V 2-Q hc h X o Bz I'' z I I 0 +~ O+ b X H l b l ’ r ‘ 0 ' M A P 0 F R E C R E A T I O N F A c t L J ' I - [ 5 5 - A x f 5 0 . » ? C O L J R é E [ r h ' fl a I r @ H a u s z 1 I - l [ : g i l I E - lo x I Q O C . 1 o ( fi n c z a a g l A o C 7 2 . Q 7 ‘ 6 . 5 z m d 3 g } . L _ _ _ _ _ _ _ _ m ‘ 9 H H O T E L . e o u z - r s ' “ “ “ “ - i f : G L U E c o u z - r s I ‘ fl ) q \ D . I h Exhibit «D« RESERVATION PROCEDURES I. Definitions As used in Sections I. through IV., inclusive, the following terms shall have the following respective meanings: A. «SC Residents" shall mean bona fide residents of the City of Santa Clara. B. «SC Groups«shall mean business entitles, non profit organizations, service clubs and other associations which are bona fide domiciled in the City of Santa Clara, and are sanctioned as such by Authority. C. «Conference Center" shall mean the Santa Clara Conference Center located and operated on Parcel 3 as described in the Lease, or the operator thereof as the context may require. D. «SC Hotels" shall mean hotels and motels and other facilities providing transient lodging located within the city limits of the City of Santa Clara, including the Hotel. E. «Hotep'hall mean the hotel located and operated on Parcel 1 as described In the Lease, or the operator thereof as the context may require. P. "Group" shall mean a collection of persons who desire the common and the concurrent use of the Course or the Courts, as the case'ay be. G. "Shotgun Group Outings" shall mean seventy-two (72) players or more starting play simultaneously on each of the eighteen (18) holes of the Course. Il. Use of the Course The following provisions shall govern the reservation of times and use of the Course: A. Groups 1. Conference Center snd Hotel Groups Conference Center and Hotel Lessee may reserve sequential or other tee times, which times have not previously been reserved, in order to satisfy tee time requests for prospective Groups planning to stay or be headquartered at SC Hotels (as to Conference Center), or planning to stay or be headquartered at the Hotel (as to Hotel Lessee), provided that each Group must rent: (1) in'xcess of two hundred (200) rooms in a single evening in order to P make tee time reservations more than two (2) years prior to the date of play; Exhibit «D« (Page 1 of 5 Pages) (2) in excess oi'ne hundred (100) rooms in a single evening in order to make tee time reservations more than one (1) year, but less than two (2) years, prior to the date of play> and (3) in excess of twenty (20) rooms in a single evening in order to make tee time reservations at any time within one (I) year prior to the date of play. A valid prospective booking of the applicable Group shall be required to reserve any such tee times. 2. SC Groups SC Groups compr(sed of forty-eight (48) or more prospective players may reserve sequential or other tee times, which times have not previously been reserved, at any time within six (8) months prior to the date of play, provided that each such SC Group must require twelve (12) or more tee times. 3. Coni'irmation; Deposits Conference Center, Hotel Lessee and SC Groups shall be required to confirm in writing their respective Group tee time reservations and the number of players (plus or minus ten percent (10%)) at least thirty (30) days prior to the date of play. Each confirmation shall be secured by such forfeitable deposit as may be established by Authority, but which shaQ in any event be an amount not less than ten percent (10%) nor more than twenty-five percent (25%) of the aggregate green fees for the applicable Group. The use of tee time reservations made for any Group, by any other Group, persons or entity, shaD not be permitted. I 4. Shotgun Group Outings Conference Center, Hotel Lessee and SC Groups may reserve the entire Course for Groups to use for Shotgun Group Outings as defined in Section I.G. above. The conditions for making reservations and the requirements for confirmation and deposits shall be the same as set forth in Sections II,A.1. through II.A.3. for Groups generally. Only one Shotgun Group Outing shall be permitted each day on the Course, and only on nonholiday weekdsysl except that one (1) Shotgun Group Outing shall be permitted per weekend (including a three-day holiday weekend) for a Group renting four hundred (400) or more rooms in a single evening at SC Hotels. B. SC Residents Any SC Resident may reserve a tee time, which time has not previously been reserved, for four (4) players or less,'at any time within fifteen (15) days prior to the date of play. Each such reservation shall be secured by such forfeitable deposit as may be established by Authority, but which shall in any event be an amount not less than ten percent (1096) nor more than twenty five percent (2596) of the aggregate green fees for the applicable players. Exhibit "D" (Page 2 of 5 Pages) C. Hotel Guests Other Than Groups Hotel Lessee may reserve tee times, for four (4) players or less, which times have not previously been reserved, at any time within fifteen (15) days prior to the date of play for prospective Hotel guests. Each such reservation shall be secured by such forfeitable deposit as may be established by Authority, but which shall in any event be an amount not less than ten percent (1096) nor more than twenty five percent (2596) of the aggregate green fees for the applicable players. D. Short Term Reservations Hotel Lessee, SC Residents and public patrons generally may reserve tee times, which times have not previously been reserved, for four (4) players or less, at any time within five (5) days prior to the date of play, without deposit, and on a first oome first served basis in accordance with procedures established by Authority. III. Use of the Courts The following proVisions shaH govern the reservation of times and use of the'ourts: A. Groups 1. Conference Center and Hotel Groups Conference Center and Hotel Lessee may at any time reserve playing time on the Club Courts, which times have not been previously reserved, in order to satisfy tournament or play requests of prospective Groups planning to stay or be headquartered at the Hotel or SC Hotels. A valid prospective booking of the applicable Group shall be required to reserve any such playing times. I 2. SC Groups SC Groups may reserve playing time on the Club Courts, at any time at least three (3) months prior to the date of play, including preemption of reservations already made by others, ln order to satist'y tournament or play requests of such SC Group. Such SC Group reservations shall be guaranteed and may not be preempted by others. 3. Confirmation; Deposits Conference Center, Hotel Lessee, and SC Groups shall be required to confirm in writing their respective Group playing time reservations at least thirty (30) days prior to the date of play. Each confirmation shall be secured by such forfeitable deposit as may be established by Authority, but which shall in any event be an amount not less than ten percent (1096) nor more than twenty-five percent (2596) of the aggregate cost of playing time reserv'ed. Exhibit "D" (Page 3 of 5 Pages) The use of playing time reservations made for any Group, by any other Group, persons or entity, shall not be permitted. B. SC Residents Any SC Resident may reserve playing time on the Club Courts, which time hasnot previously been reserved, for a singles or doubles match, at any time within fifteen (15) days prior to the date of play. Each such reservation shall be secured by suchforfeitable deposit as may be established by Authority, but which shall in any event be an amount not less than ten percent (10%) nor more than twenty five percent (25%) of the aggregate cost of playing time reserved. C. Hotel Guests Other Than Groups Hotel Lessee may reserve playing time on the Club Courts, which time has not previously been reserved, at any time within fifteen (15) days prior to the date of play,for a singles or doubles match, by prospective Hotel guests. Each such reservation shall be secured by such forfeitable deposit as may be established by Authority, but which shall in any event be an amount not less than ten percent (10%) nor more than twenty five percent (25%) of the aggregate cost of playing ttme reserved. b. Short Tet rn Reservations Hotel Lessee, SC Residents and public patrons generally may reserve playingtime on the Club Courts, which time has not previously been reserved, for a single or doubles match, at any time within two (2) days prior to the date of play, without deposit, and on a first come 1'irst served basis in accordance with procedures established by Authority. E. Limits on Playing Time, Matches Singles matches (as referred to in Sections III.B., C. and D.) shell not extend beyond one and one half (1-1/2) hours of playing time. Doubles matches (as referred to in Sections m.B., C. and D.) shall not extend beyond two (2) hours of playing time. Reservations for other than Group play, as provided for in Sections m.B., C. and D., shall be limited to one match per person per day, except for ladder match play. F. Hotel Courts Hotel Lessee may reserve playing time on the Hotel Courts, at any time, including preemption of reservations already mady by others, in order to satisfy tournament or play requests of Groups planning to stay on or be headquartered at the Hotel, or play requests of any other Hotel guests. Such Hotel Lessee reservations on the Hotel Courts shall be guaranteed and may not be preempted by others. Exhibit "D" (Page 4 of 5 Pages) IY. Usage Rights of Other SC Hotels Authority shall have the right, In its discretion, to provide rights to use the Course and Courts on the same basis (but not superior) as Hotel Lessee under Sections II. and IIL of this Agreement, to one or more other SC Hotels, except that Hotel Lessee's preemptive rights to use the Hotel Courts pursuant to Seotion III,P. shall not be granted to any other SC Hotels. Exhibit sDv (Pagh 5 of 5 Pages) Q~g. + /P]BGPLZ RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Santa Clara Convention Hotel Li ship FiLED FOR RECORD AT REQUEST OF, OEC 2 2 03 PII 't7 OFFICIAL RECORDS SANTA CLARA COUNTY LAURIE KAME. RECORDER FIRST AMENDMENT TO RECREATION FACILITIES AGREEMENT This agreement is Che First Amendment ("Amendment" ) to theRecreation Facilities Agreement dated Apcil 30, 1985 by and between the SPORTS AND OPEN SPACE AUTHORITY OF THE CITY OF SANTA CLARA and SANTA CLARA CONVENTION HOTEL LIMITED pARTNERSHIp, a California limiCed partnership, successor to SCCC Associates, a California general partnership, which Recreation Facilities Agreement was recorded in the Official Records of Santa Clara County on May 16, 1985 as Recordec Series No. 8411277. As used in this Amendment, the term"Recreation Facilities Agreement" shall mean and refer to the Recceation Facilities Agreement mentioned above, together wiChall exhibits attached thereto. RECITALS A. The parties wish to amend the Recreation- Facilities Agreement to reflect. the boundary adjustment to Parcel 1 (and FuCure Expansion area) which is refereed to in the RecreationFacilities Agreement (and exhibits and memorandums thereto) recorded against the real property described in Exhibit A. NOW, THEREFORE, the parties hereto agree as follows 1. Any references to Parcel 1 (and Parcel I.A or the Futuce Expansion area), the public utiliCy easemenC (P.U.E.) or public improvement maintenance easement (P,Z.M,E.) affecCing said Parcels, and any maps of Parcel 1 (and Parcel 1A or the easements) canCained in the Recceatian Facilities Agreement or any exhibits or memorandums thereto shall hereinaftec be deemed a reference to Parcel 1 (and Parcel 1A oc the easements) designated on the Amended parcel Map regarded in the Official Recorcs of Santa Clara County an )4~ ~ , 1987 in Book ~ of Maps .at Pages g~o i , asit may be further amended, corrected or superseded. 2. The legal description of Parcel 1, ceFerred ta in Che Recreation Facilities Agreement or in any exhibits or memo- randums thereto is hereby amended to be the legal description attached hereto as Exhibit B. 3. Any reference to Parcel 3 contained in'xhibit D to j~ I REL:Amend-044 K 01 27/0 0 2 02/17/87:nd -1- f the Recreation Facilities Agreement shall hereinafter be deemed a reference to Parcel 3 on the Amended Parcel Map recgsdad in the Official Recta of Santa Clara County on )4(~ 4, 1987 in Book .~4/ of Maps at Pages f,/DE.//, as it may be'urther amended, corrected or superseded. 4. Any refe:ences to the parcel map (identifying orillustrating Parcels 1 (Parcel 1A or the Future Expansion area) and/or 3 or the public utility easement (P.U.E.) or public improvement maintenance easement (P.I.M.E.) located thereon) in the Recreation Facilities Agreement or anyexhibits or memorandums thereto shall hereinafter be deemed references to the Amended Parcel Map~ecorded in the Official Records of Santa Clara CppntZ on ~~ , 1987 inBook~ of Maps at PagePf/ 4, as it may be 'further amended, corrected or superseded. 5. This Amendment may be executed in counterparts, each of which shall be deemed an original, and together shall constitute one instrument. 6. Except as otherwise modified herein, the RecreationFacilities Agreement shall be deemed unmodified and in full force and effect. In the event of any conflict between the terms of this Amendment and the Recreation Facilities Agreement, this Amendment shall control. IN WITNESS WHEREOF, the parties heret~ave executed this Amendment as of k'one(xn z9 , 1987. THE SPORTS AND OPEN SPACE AUTHORITY OF THE CITY OF SANTA CLARA Its: Chnirnnn n REL:Amend-044 K0127/002 02/17/87:nd SANTA CLARA CONVENTION HOTEL LIMITED PARTNERSHIP, a California limited partnership By: SCCC ASSOCIATES, a California general partnership, its General Partner By: DTR SANTA CLARA, INC., an Arizona corporation doing business in California as ARIZONA DTR SANTA CLARA, INC., as General Partner of SCCC ASS IATES c ~~-~ ~ By: CORPORATE ASSOCIATES - SANTA CLARA LIMITED PARTNERSHIP, a limited partnership, as General Partner of SCCC ASSOCIATES By: DTR"'SA'NTA'*CLARA, INC., an Arizona corporation doing business in California as ARIZONA DTR SANTA CLARA< INC., as General Partner or Corporate Associat s- Santa Clara Limited Partn Its:/~~ W~~~9 REL:Amend-044 K0127/002 02/17/87:nd I I By: TECHMART ASSOCIATES I LIMITED PARTNERSHIP, a California limited partnership, as General Partner of SCCC ASSOCIATES By: TECHMART PROPERTIES, INC., a California corporation, as General Partner of TECHMART ASSOCIATES I LIMITED PARTNERSHIP c Its: Pfl~CGk~+ Approved and Consented To: THE AETNA CASUALTY AND SURETY COMPANYi a'Connecticut corporation Its: Q4's certificate fir t above written. OFFICIAL SEAL GA)L WALKER NOTARY PUBLIC-CALIFORIRA SANTA CLARA COUNTY sr tsamrkss tsslra ss ILIsay» ~ A~9+1 cs ~ ~ NOTARY PUBLIC STATE OF CALIFORNIA ) COUNTY OF4m+u.PJ4I" m nd3 on this Q day of ~LYILTL . 19gr,'efore me, a Notary Public, personally appearedpin-'rr&,~F4rforyCf- on behalf of TECHMART PROPERTIES, INC., a California corpora- tiont said corporat'ion being the General Partner of TECHMART ASSOCIATES I LIMITED PARTNERSHIP, a California limi'ted partnership, said limited partnership being a General Partner of SCCC ASSOCIATES, a California general partnership, said general partnershio being the General Partner of SANTA CLARA CONVENTION HOTEL LIMITED PARTNERSHIP, a California limited partnership, the limited partnership that executed the within instrument, and acknowledged to me that such limited partner- ship executed the same, , WITNESS my hand and official seal PURUIM UUUUUUUIMURUUUUNIMUUUMRUUUUUUL'Ullfcflt ROCHELLE M. NARDONEI Notary Pubkc.CUUtornla Santa Clara County My comm. ssplras OcL 9, TBSB = URUUUIURUIUUUfUUUUUUUURUUIUIUIUIUUUURURUUUUUU8 RELIAmend-044 K0127/002 02/17/87tnd gg/2 Oma STATE OF ) ) ss. cQUNTY QF Plewrcc ar1 )/ On this / g/~~A, 9 personally known to me (or proved to me on the basis of satisfactory evjIden~~ to be the person who executed the within instrument as p're /~/ps+ on behalf of DTR SANTA CLARA'NC., an Arizona corporation doing business in California as Arizona DTR Santa Clara, Inc.I said corporation being a General Partner of SCCC ASSOCIATES, a California general partnership, said general partnership being the General Partner of SANTA CLARA CONVENTION HOTEL LIMITED PARTNERSHIP, a California limited Partnership, the limited partnership that executed the within instrument, and acknowl- edged to me that such limited partnership executed the same. WITNESS my hand and official seal Pgi z.n along said westerly line of the Southern Pacific Railroad right-of-way, 28 16'6" West, 1,984.85 feet to the point of intersection with the northerly line of that certain parcel of lend conveyed to Sante Clare Hunicipal Refuse Disposal Corporation by deed recorded in Book 6644 of Official Records at page 143, Sante CLars County records; Thence, along lest said nozthezly line, South 69 56'6" West, 1705.76 feet; Thence, leaving last said northerly ling, North 18 26'6" East, 500.02 feet; Thence, North 19 33'4" West, 790.21 feet; Thence, North 88 54'3" West, 369.32 feet to the point of intersection with the easterly line of Great America Parkway (125 feet wide) as shown on said Record of Survey> Thence, along said easterly line of Great. America Parkway, South 1750.58 feet to the point. of intersection with the nor theastezly Aquino Channel (230 feet wide) as described in the deed to Sante Water District recorded in Book B498 of Official Records at page County Records; 1 05'7" West, line of San Tomas Clare County 28,, Santa: Clara Thence, slang said northeasterly line, South 57 47 44" East, 950.15 feet to the POINL'F TANGENCY with a curve, concave to the southwest, having e radius of 686.10 feet; Thence, continuing along said northeasterly Line on said curve, through a central angle of 26 15'4" en src length of 314.52 feet; Thence, continuing along said ortheasterly.line, tangent to said curve, South 31 31'0" East, 530.26 feet; Thence, leaving said northeast zly line, North 63 03'4" East, 382.85 feet; Thence, South 26 56'6" East, 49 35 feet; Thence, North 63 03'4" East, 922.99 feet> Thence, North 26 56'6" West, 145,00 feet; Thence, North 63 03'4" East, 175.00 fe t; Page 2 of 5 S. C. 15,350 Thence, South 26 56'6" East> 148.00 Eeet; aThence, from a tangent bearding North 70 32 05" East> slang the arc oE a curve, cancave to the sauth, having a radius of 342.00 Eeet, through a central angle of 68 50'9" an src length of 410.96 feet, to a paint in said northerly line of Tasman Drive; Thence, along said northerly line North 62 06'9" East, 37.61 feat, to the Paint of Beginning, And, containing. 101.813 acres> mare or less. Page 3 of 5 51'5 02.' er. 4o nW gJ "rill n -l0 0 i pi I-. '-kn Sn P n tr 4VI- g-IS-B3 cnoc)ov M o rI, J o. ~ >z ~ ~~i&',, P rP lr Fl ) /S.M. CHISTOFAIIO Plroolor of Pvnllc N'orin/Crt Enplnoor Page 4 of 5 CITYOF SANTA CLARA"7-~o PARCEL A CITY GOLF COURSE LAND -A SO ape s p p 4I0.'7C 'hS-2 " a . E> -“ 5 It TO. Re'ter Ehlean untto S .,a Ecau"fie Attn: 'oeh Noreiolti risen Avenue Ee" tora,1'Y t0022-3tet SANTA CLARA COUNTY RECCRDERReco ded at the Feooost orChioeso litic RDE e BBB (2/83/(Bop Biea AN 1FMS AB(2~re tllirFOll Racoa(srr(S ((st ATION FACILITIES AGREEMENTASSIGNiMENT OF RECRE , a Delaware limited liabilitycompany ("4(antmnr ), d bl 'dd.n cons de a o c sum ofS)0.00 and other good ""P: " '" SHC-W t, to the extent assignable, in o b hdli ( ation all ofAssignods rights, options an, including without limit i s('ccrcauon Agrcemcn plivilages lhercundec Hotels dt Resorts Worldwide, Inc. ( Starwood ) en(er dAssignor and Statwood temher 29. I999, as atnended byd Sale Agreement dated Septe r by into that ccnain Purchase an e A cement date epd S tcmher 29, 1999. as amended edb Amen mcnd l to Purchase and Sale gr and Sale Agreement ated d October 25. 1999, as amende y ded b Seto m= nd A endincnr to Purchase reernent dated cto0 ber 29. 1999, ss arnende yd. t to Purchase and Sale Ag f he date hereof (as amended,b and Sal A eementdatedaso t A S ood»d-,e 'greement ). Pursuan dm Agreement) in lieu of tarw ' to the Property (as defmed in a, arform and fulfillall cf'ndassumes and agrees to p y, p'g" " '''i or to be paid, performed an 'sand the'obligations on tne part ofAssign e date hereof. Assignee hereby indeA reeme tariling or a ng tcoral from and alter . , costs, expenses, e 'sbursem«nts) g losses or lish ' s ((nclud ng, an(bout bm su(Tered or inculrcd by Assignor and arising out ofAssignee's a(ure o c ie io515 otal kllori I o.o '1OO (4O(4 97x and all such obhgatmns arisirg or accruing from and a(tcr the date hereof, which'indemnity shall survwc the consummanon o('.he aiiignmcm snd assumption contemplated hereby. Asugnor hersey inden;rilies and holds Assignee harmless from and against any and all ri ums, suits„udgments, cosu, expenses, losses or liabilities (including without limitation icasor.able attorneys'ees and disbursements) surTered or incurred by Assignee and arising out of Assignor s failure to pay, perform or fulfdl the obligations on rhe part ofAssignor to be paid, p rformcd and fulfi!!cdunder the Recreation Agreement arising or accruing prior to the date hereof, which indemnity shag survive the consummation of the assignment and assunipiion conten;plated hereby This Assignment is made specifically and expressly unthout any warranties, representations or guaranties of any kind, uihether oral or written, express or implied. b(othing contained herein is inrended to modify, qualify or affert any rights Starwood may have, if any, against A ssignor pursuani to the Agreement or any documents executed and delivered by assignor to Starwood at Closing (as defined in the Agreement). This Auignrncnt end Assumption shall be binding on and iaure to the benefit of Ais:gnor and Asncnee and its successors and assigns. c u I%Is Joc sons ~ 9'79 P.83 INt'ITNESS tVHEREOF, Assignor and Assignee have executed and delivered dus Ats'.Srrtent sro Assumpuon as of this I'ay ofDecember, 1999. ASS IGNORt T-W SANTA CLARALLC, a Delaware iituited liabilitycompany By: T- LLC, a Delaware limited liability , its s member ~orrOeoqre (f. Ro&Presidenf ASSIGNEE; SHC-W SANTA CLARA, I..L.C., a Delaware limited liabgity company By: Strategic Hotel Funding, L.L.C., a Delaware limited liabilitycompany, lts sole member Title: Authorized Signatory c v,,w;i . w situs ~ STATE OF NEW YOIVC ) 55 COUNTY OF NEW YORK ) On December / 1999, before me, .$ 9!u!R DIE IIIIKXC . a Notary public in and for said County snd S!a!9, personally appealed George C. Ross, personally known ta me (or proved to me on tbe bs! is of sansfactory evidence) to be the person whose name is subscribed to the u!ithin documert and ackrowledged to mc that he executed the sa!ne in his authorized capacity, snd;ha! b> h!s!idr amre on the document the person, ar the entity oa behalf af which the person acted, carel (L the ducun!tnt WIT!!ESS my hmd and oHlclat seal ,n /S!gas!use ( ~ [SEAL] STATE OF NEW YORK ) ss COtr>TY OF NEW YORK ) ANNAg. IR!AlstE Note!y public, State OI New Ybrk Ne.48672aa Oualated In New York Ceumv My Commlae!on Eap!res Augue! t I, zoon ! On December I 1999, before me, 8/ddd'8 Core~, a Notary Public ia and for said Coin'.y and Stare, personally appeared Scott Woroch, persanally known ta me (or praved to me on!Es bans of!auafactory «v!dence) to 1'e the person whose name is subscribed to the within documec! and acknowledged to me that he executed the same in his authorized capacity, aad that by h!s sign stu! c on!hc documeat the perse n, or the entity on behalf of which the person acted, execu!cd!he document. WITNESS my hand and olftcial seal. Signatu [SEAL) ssvv 9snu ~aeea Sun Suu ersauye!t C>M !9999.CZn St<01!.9 Fxhibit A Recreation Facilides Agreement dated April 30. 1985, as originally recorded in Book $348 at Page 1 of the Official Records of Santa Clara County'on May 16, 1985, between the Sports and Open Space Authority of the City of Santa Clara (the "Authority") and SCCC Associates, as amended by First Amendment dated November 24, \987 benveen the Authority and Santa Clara Convention Hotel Limbed Partnership, as successor-in-interest to SCCC Associa'.es, and S cond Amendment dated April 14, 1998 between the Authority snd I-W Santa C;ara LLC, as successor-in-interest m Santa Clara Convention Hotel Limiced Par'tneiship ea I xss-clat stets! ~ '.484 97x p. st6 QM) amenmxem TD 1396. maiumg M) fl‘v'W-WTT gm I mag RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: SPORTS AND OPEN SPACE AUTHORITY OF THE CITY OF SANTA CLARA Santa Clara City Hall 1500 Warburton Avenue Santa Clara, California 95050 Attention: Jennifer Sparacino Contract Administrator FREE RECORDINGGOVERNMENT CODE SECTION 6103 SECOND AMENDMENT TO RECREATION FACILITIES AGREEMENT This Second Amendment to Recreation Facilities Agreement (the"Second RFA Amendment" ) is made by and between the SPORTS AND OFENSPACE AUTHORITY OF THE CITY OF SANTA CLARA .("Authority") and T-WSANTA CLARA LLC, a Delaware limited liability company ("HotelLessee" ) . RECITALS A. Authority heretofore entered into that certain RecreationFacilities Agreement dated April 30, 1985 with SCCC Associates, aCalifornia general partnership, which Recreation FacilitiesAgreement was recorded in the Official Records of Santa ClaraCounty on May 16, 1985 as Instrument No. 8411277. The RecreationFacilities Agreement was amended by the Authority and Santa claraConvention Hotel Limited Partnership, a California limitedpartnership, successor in interest to SCCC Associates, on November24, 1987 by that certain First Amendment to Recreation FacilitiesAgreement, recorded in the Official Records of Santa Clara Countyon December 2, 1987 as Instrument No. 9524030 (the "First RFAAmendment" ) . As -used in this Second RFA Amendment, the term"Recreation Facilities Agreement" shall mean and refer to saidRecreation Facilities Agreement, as modified and amended by theFirst RFA Amendment, together with all exhibits attached thereto. B. Authority and Hotel Lessee now desire to amend the RecreationFacilities Agreement to reflect the boundary ad]ustments to Parcel 1 (and Parcel 1A or the Future Expansion area) and 5, which arereferred to in the Recreation Facilities Agreement (and/or inexhibits and memorandums thereto) . NOW, THEREFORE, the parties hereto agree as follows: 1. Paragraph 1 of the First RFA Amendment is hereby deleted.Any references to Parcel 1 (and Parcel 1A or the Future Expansionarea), the public utility easement (P.U.E.) or public improvementmaintenance easement (P.I.M.E.) affecting the Parcels referenced 4/6/98 c:.:r:w:s xa w::ic m-.. n r c m m. a .nra"d I ac cf Zeae em r 8eca -. 4" m: s+ s r:..~ n: o>a. above, and any maps of those Parcels (or areas or easements) contained in the Recreation Facilities Agreement or any exhibits or memorandums thereto shall hereinafter be deemed references to the Parcels with the corresponding numbers (or areas or easements) designated on the Amended Parcel Map recorded in the Office of the Recorder of the County of Santa Clara, State of California, on December 2, 1987 in Book 581 of Maps, at pages 9, 10 and 11, and as further amended by that certain Grant Deed between the Redevelopment Agency of the City of Santa Clara as grantor and grantee recorded in the Office of the Recorder of the County of Santa Clara, State of California, on March 24, 1998 as Instrument Nc 14106142 puisuant to that certain Notice of Lot Line Adjustment issued by the City of Santa Clara and recorded concurrently therewith in the Office of the Recorder of the County of Santa Clara, State of California, on March 24, 1998 as Instrument No, 14106143. 2. Paragraphs 2. and 3. of the First RFA Amendment aze hereby deleted. The legal descriptions of Parcels 1 (and parcel 1A or the Future Expansion area) and 3, referred to in the Recreation Facilities Agreement and/or in any exhibits or memorandums thereto are hereby amended to be the legal descriptions of that certain real property located in the City of Santa Clara, County of Santa Clara, State of California, described and delineated as Parcel 1 (and Parcel 1A or the Future Expansion area), or Parcel respectively, upon that Parcel Map filed for record in the office of the Recorder of the County of Santa Clara, State of California on October 30, 1984 in Book 535 of Maps, at pages 47 and 48, as corrected by that certain Certificate of Correction filed for record on April 24, 1985 as Instrument No. 8389033, in Book 8327, page 1212, Official Records, as amended by the Amended parcel Map recorded in the Office of the Recorder of the County of Santa Clara, State of California, on December 2, 1987 in Book 581 of Maps, at pages 9, 10 and 11, and as further amended by that certain Grant Deed between the Redevelopment Agency of the City of Santa Claza as grantor and grantee recorded in the Office of the Recorder of the County of Santa Clara, State of California, on March 24, 1998 as Instrument No. 14106142 pursuant to that certain Notice of Lot Line Adjustment issued by the City of Santa clara and recorded concurrently therewith in the Office of the Recorder of the County of Santa Cl~ra, State of California, on March 24, 1998 as Instrument No. 14106143. 3. paragraph 4. of the First RFA Amendment is hereby deleted. Any references to the Parcel Map (identifying orillustrating Parcel 1 (and Parcel 1A or the Future Expansion area) and/or Parcel 3 or the public utility easement (P.U.E.) or public improvement maintenance easement (P.I.M.E.) thereon) in the Recreation Facilities Agreement and/or in any exhibits or memorandums thereto shall hereinafter be deemed references to the Amended Parcel Map recorded in the Otfice of the Recorder of the County of Santa Clara, State of California, on December 2, 1987 in t . Cl'tt ot t.tt I tv ~ t S t Slnre. aennrae A B.s ic 0'enn(lfer Spa).acinoContract Administrator T-W SANTA CLARA LLC, a Delaware limited liability company (Hotel Lessee) Date: By~ NAme: & S f. wtCceu Title:ViCe )'reS,()S()( Date: By: ~~~g Ca.. ~~ Namea 1"(C'Wa~c+ I'L ii.clc~:ditTitle: ASS ~iant 5 "i I APPROVED AS TO FORM AND LEGALITY: MICHAEL R. DOWNEY Authority General Counsel BY: MM(i i)OIIllllll ( APPROVED: KANE BALLMER & BERKMAN Authority Special Counsel Date. i(()i(fJ.g Date: 4/0/la i Sects C:er.. Kcc» gca csee oc Ss rc yezmonmc ces The City of Santa Clara, as owner of the fee title to Parcel hereby.consents that Authority enter into the above Second RFA Amendment. CITY OF SANTA CLARA (City) Date MarCh 17, 1998 By: Mat u t L( I ( kbR,SR (txkiti(ACsi< On CLEyoJ ys FISt, befpre me, W(Eo-TE I ERUC= C. AUCASDN Cl~l. ENGINE« R Ua PROVELIEN 0 LIA I NiELANC Sa SIENi HOTEL PLAT (Paae I ai I) Rea , c„- I" Qce rac:ac Na. OF SANTA CLARA I '="; = Ba' Amended Mao of Recreation. Facilities I I I I I MASTER PLAN ll: .'~IIIJII II~ Il(lll wvmmunu ninitsil " L." “ e an e ion ?acil gg GREAT AMERICA PARKWAY MAINTENANCE BLDG. a- FUTURE u h.‘ p- f I z i J‘s - s i:at-qHS ‘2. .<}’2 amsaun ‘cl [3m mall- czxz: . 1E5 p4. a -€xm5mcu :zv-a ‘51 Igic TASMAN DRIVE g | f '15 u I h: ‘. \ :2.< -fi3~:'\ 5.. E‘i/‘W x |@COND RvvNDS i~g PR RECREATION FACZLTTZES SECOND AMENDED EXNZBZT C Paoe 1 of 2 SE AME DEZ- HAP OF I I I é ‘0 SEMI E Hora. cauars CLUB counts Y UREA? AMERICA PARKWA UNK é WEN?“ CflIIER GREA I AMERICA HARK WAY ‘ b TASMAN DRIVE GREAT AuERICA PARKING ‘ ‘ J‘ l u? u v égfiyék/ - d" a ‘u MASTER PLAN GREM' Ameam THEME PARK ‘é_ I ‘5‘ 2337i Lam... E E HI IT c n'f f\ 1 z 0 CC UJ 0 UJ CC (~ v O .=e '5 CC CI zn zz =a~ TohG=- ~QUIYo CHARNEL K3~ XCAOXLPc~~mS PP'.m.-K SECOND MENDED EXHIBIT C ' V 3 L E W 3 5 I “ T I b w r H \ U 3 W G N O D E S . ) _ _ _ L _ , _ _ . . . _ _ . _ _ M A P O F R E C R E A T I O N F A C I L I T I E S G O L F C O U R S E Q ? m I ‘ l l T E N N V ‘ C O U R f s C I U B H O U S E m m u m m [ : 1 i : | _ l [ a c u l l m u m s aa\- D E I E I H X E G E Q N n u : ' w fi d s a s u t h fi o n u m fl ‘ . - I E N N V H D o m n b ‘ v ’ s v m o ; N V H m - [ H E H [ _ - _ - _ _ _ - _ . . . - I l ‘ t P A R K I N G S I A R S A N D S I R I P L S W A Y ' I ' A S ’ M A N D m v I ' : EXHIBIT8HIBIT B RESOLUTION NO. 18-8642 A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA DETERMINING THAT THE PUBLIC INTEREST AND NECESSITY REQUIRE THE ACQUISITION OF CERTAIN REAL PROPERTY INTERESTS AT 5105 GREAT AMERICA PARKWAY, SANTA CLARA, CALIFORNIAFROM IA LODGING SANTA CLARA, LLC FOR A PUBLIC PROJECT AND DIRECTING THE FILING OF EMINENT DOMAIN PROCEEDINGS (RECREATIONAL FACILITIES AGREEMENT) BE IT RESOLVED BY THE CITY OF SANTA CLARAAS FOLLOWS: WHEREAS, it is desirable and necessary for the City of Santa Clara, a chartered city and municipal corporation (hereinafter the "City") to acquire certain real property interests necessary for the relocation of Stars & Stripe Drive and development of Avenues A, B and C (the "Project"), as depicted in Exhibit A. The land upon which these streets will be built (as more particularly described in Exhibit Bl is encumbered by a Recreational Facilities Agreement, dated April 30, 1985, between the City's predecessor in interest, the Sports and Open Space Authority of the City of Santa Clara, and SCCC Associates, the predecessor in interest of IA Lodging Santa Clara, I LC ("IA Lodging"), which Recreation Facilities Agreement was recorded in in the Official Records of the County of Santa Clara (the "Official Records" ) on May 16, 1985, as Instrument No. 8411277 in Book 1348, Page 1, as amended by that certain First Amendment to Recreation Facilities Agreement, dated November 24, 1987 recorded in the Official Records on December 2, 1987 in Book K377, Page 638 and as further amended by that certain Second Amendment to Recreation Facilities Agreement dated March 17, 1998 recorded in the Official Records on April 21, 1998, as Instrument No. 14150277 and as further amended by that certain First Supplement to Recreation Facilities Agreement, recorded in the Official Records on February 16, 2001 as Instrument No. 15563487 (collectively, and as amended, the "RFA"); Resolution/Necessity -RFA -IA Lodging Rev: 11/22/1 7 Pege1 of4 WHEREAS, The RFA is an appurtenance to that certain Hotel Ground Lease made by and between the Redevelopment Agency of the City of Santa Clara and IA Lodging's predecessor in interest, SCCC Associates, a California general partnership, dated April 30, 1985, as amended and assigned, a memorandum of which was recorded in the Official Records on May 16, 1985, in Book J348, page 42 (as amended, supplemented and assigned, the "Hotel Ground Lease" ) pertaining to that certain parcel of land and improvements thereon, located at 5105 Great America Parkway (APN: 104-55-012) and all appurtenances thereto; WHEREAS, The RFA provided for the construction, maintenance and operation of an 18-hole golf course, a golf clubhouse, and six (6) tennis courts, two of which were constructed at the cost and expense of other than the Hotel Lessee (as defined in the Hotel Ground Lease), and related facilities and amenities including, appropriate parking snd landscaping on the lands described in Exhibit B attached hereto and incorporated herein by this reference; WHEREAS, the City is vested with the power of eminent domain to acquire real property by virtue of Article I, Section 19 of the Constitution of the State of California, Sections 37350.5, 37353 and 40404 of the California Government Code, and Sections 1240.010 and 1240.220 of the California Code of Civil Procedure; WHEREAS, pursuant to the provisions of Section 1245.235 of the California Code of Civil Procedure, notice has been duly given to IA Lodging Santa Clara, LLC ("IALodging"), whose property interests under the RFA (the "Subject Property Interests" ) are to be acquired by eminent domain and whose name and address appears on the Santa Clara County Equalized Assessment Roll, and the property owner has been given a reasonable opportunity to appear and be heard before the City Council; Resolution/Necessity -RFA -iA Lodging Rev: 11/22/17 Page 2 o/4 WHEREAS, on June 28, 2016, by Resolution No. 16-8337, the City Council certified the Final Environmental Impact Report (EIR) for the CityPlace Santa Clara project (SCH¹2014072078) in accordance with CEQA. The EIR analyzed the environtnental and transportation impacts of the CityPlace Santa Clara project and determined the need to construct a series of both new improvements and enhancements to existing public right-of-way to mitigate the anticipated impacts of traffic and circulation of the Project. No further environmental review is necessary pursuant to CEQA; and, WHEREAS, pursuant to the provisions of Section 7267.2 of the California Government Code, the City has made an offer to the owner(s) of record to acquire its interests under the RFA for the amount which it has established to be just compensation therefore. NOW THEREFORE, BE IT FURTHER RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS: 1. That the public interest and necessity require the Project. 2. That the Project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury. 3. That the property sought to be acquired is necessary for the Project. 4. That all environmental review required by law has been prepared and adopted, 5. That the offer required by Section 7267.2 of the California Government Cade has been made to the owner(s) of record of the Subject Property Interests. 6. That the City Attorney or his duly authorized designee is hereby authorized and directed to institute and conduct to conclusion an action in eminent domain for the acquisition of the estates and interests aforesaid and to take such actions as he may deem advisable or necessary in connection therewith. Resolution/Necessity -RFA -IA Lodging Rero 11/22/1 7 Page 3 of 4 7, That the City may deposit with the State Treasury the probable amount of compensation and obtain an order for prejudgment possession of the Subject Property Interests. 8. Effective date, This resolution shall become effective immediately. I HEREBY CERTIFY THE FOREGOING TO BE A TRUE COPY OF A RESOLUTION PASSED AND ADOPTED BY THE CITY OF SANTA CLARA, CALIFORNIA,AT A REGULAR MEETING THEREOF HELD ON THE 11 DAY OF DECEMBER, 2018, BY THE FOLLOWING VOTE: AYES: NOES: ABSENT: ABSTAINED; COUNCILORS: COUNCILORS: COUNCILORS: COUNCILORS: Chahal, Davis, Hardy, O'eill, and Watanabe, and Mayor Gillmor None Mahan None ATTEST; NORA PIMENTEL, M%1C ASSISTANT CITY CLERK CITY OF SANTA CLARA Exhibits incorporated by reference: A. Stars S Stripes B. Legal Description Resolution/Necessity -RFA -IA Lodging Rev: 1 I/22/17 Page 4 of 4 »II ~ IltI II ,'l III RPH!tkSHEA. lj II ll ll II II II II II N II II ill ~l -- - --...-,::.-.:,,:.-- .-i CITY PLACE SANTA CLARA RIGHT OF WAY EXHIBIT COW tNINIII'A EXHIBITB Those certain rights contained in "Recreation Facilities Agreement" recorded May 16, 1985 in Book J348 at Page 1 as Instrument No. 8411277 of Official Records, and Amendments thereto recorded December 2, 1987 in Book K377 at Page 638; April 21, 1998 as Instrument No. 14150277; and February 16, 2001 as Instrument No. 15563487 of Official Records, in and to the following described land. PARCEL A: Beginning at a point in the Easterly line of Lafayette Street (90 feet in width), said point being the most Easterly point in the boundary of that parcel of real property conveyed from Santa Clara Reclamation Corporation to the City of Santa Clara by that Grant Deed recorded in Book 9246 of Official Records at Page 588, Santa Clara County Records; Thence, from said point of beginning along the Easterly line of said parcel and of Lafayette Street, North 28'7 01" West, 151.57 feet; Thence, North 73'5'5" East, 107.04 feet; Thence, North 87'6'6" East, 243.06 feet; Thence, North 51'5'4" East, 358.39 feet; Thence, North 65'8'6" East, 332.04 feet; Thence, North 49'6'9" East, 206.66 feet; Thence, North 08'1* 12" West, 257.39 feet; Thence, North 59'3'9" East, 200.10 feet to a point in the Westerly boundary line of Parcel 1 of that real property conveyed to the Santa Clara County Flood Control and Water District by that Grant Deed filed for record April 26, 1973 in Book 0346 of Official Records at Page 667, said county records; Thence, along said boundary line of Parcel 1, South 35 35'3" East, 2011.53 feet, more or less, to a point in the Southerly boundary line of Parcel 2 of that real property conveyed to the Santa Clara Reclamation Corporation by that Grant Deed filed for record October 19, 190 in Book 9092 of Official Records at Page 80, said county records; Thence, along said Southerly boundary line the following Four (4) courses, North 84 12'9" West, 48.71 feet; South 23'4'9" East, 7.41 feet; North 85 16* 49" West, 139.94 feet; South 67'3'1" West, 1603.27 feet to the point of beginning, PARCEL B: Beginning at the point of intersection of the Westerly line of Southern Pacific Railroad right-of- way (50 feet wide) with the Northerly line of Tasman Drive as shown on that certain Record of Survey filed in the Office of the County Recorder, Santa Clara County, California, in Book 345 of Maps at Pages 1 through 8 therein; Thence, along said Westerly line of the Southern Pacific Railroad right-of-way, North 28'6'6" West, 1984,85 feet to the point of intersection with the Northerly line of that certain parcel of land conveyed to Santa Clara scLA$53796988527J Municipal Refuse Disposal Corporation by deed recorded in Book 6644 of Official Records at Page 143, Santa Clara County Records; Thence, along last said Northerly line, South 69 56'6" West, 2,240.54 feet; more or less, to the point of intersection with the Easterly line of Great America Parkway (125 feet wide) as shown on said record of survey; thence, along said Easterly line of Great America Parkway, South 1'5'7" West, 340.91 feet, more or less, to the point of intersection with the Northeasterly line of San Tomas Aquino Channel (230 feet wide) as described in the deed to Santa Clara County Water District recorded in Book B498 of Official records at Page 28, Santa Clara County Records; Thence, along said Northeasterly line, South 57'7'4" East, 950.15 feet to the point of tangency with a curve, concave to the Southwest, having a radius of 686.10 feet; Thence, continuing along said Northeasterly line of said curve, through a central angel of 26'5'4", and an arc length of 314.52 feet; Thence, continuing along said Northeasterly line, tangent to said curve, South 31'1'0" East, 530.26 feet; Thence leaving said Northeasterly line, North 63'2'2" East, 364.67 feet; Thence, South 31'9'7" East, 50.51 feet; Thence, North 63'3'4" East 949.21 feet; Thence, North 26'6'6" West, 136.86 feet; Thence, North 65 32'4" East, 12.86 feet; Thence, from a tangent bearing of North 17'0'6" East, along the arc of a curve to the right, having a radius of 63.63 feet, through a central angle of 45'3'6", and an arc length of 50.60 feet; Thence, North 63'Z 37" East, 106.78 feet; Thence, South 27'4'9" East, 158.88 feet; Thence, from a tangent bearing of North 71 20'4" East, along the arc of curve to the right, having a radius of 334.30 feet, through a central angle of 69'6'4", and an arc length of 403.18 feet to a point in said Northerly line of Tasrnan Drive; Thence, along last said Northerly line North 62'6'9" East, 43.82 feet to the point of beginning. sc LA155378u 888527.1