EXHIBIT 10.8
AMENDED AND RESTATED RECREATIONAL LICENSE
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This AMENDED AND RESTATED RECREATIONAL LICENSE (hereinafter referred to as
"Agreement") is made as of the 1st day of January, 1994, by and among MARRIOTT
DESERT SPRINGS LIMITED PARTNERSHIP, a Delaware limited partnership (hereinafter
referred to as "OWNER"), DESERT SPRINGS HOTEL SERVICES, a joint venture
controlled by Marriott International, Inc. (hereinafter referred to as
"OPERATOR"), MARRIOTT OWNERSHIP RESORTS, INC., a Delaware corporation
(hereinafter referred to as "DEVELOPER"), and DESERT SPRINGS VILLAS TIMESHARE
ASSOCIATION, a California non-profit mutual benefit corporation (hereinafter
referred to as "ASSOCIATION").
RECITALS
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A. OWNER owns the Marriott's Desert Springs Resort and Spa (hereinafter
referred to as the "Resort") in Palm Desert, California located adjacent to the
site upon which Developer has developed and continues to develop a timeshare
condominium project known as Desert Springs Villas (hereinafter referred to as
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the "Project").
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B. OPERATOR is responsible for management and operation of the Resort.
C. The parties hereto, excluding the ASSOCIATION, previously entered into
that certain Recreational License dated as of November 3, 1989 and recorded on
March 23, 1990 as Instrument No. 106099 (the "Recreational License") in the
Office of the County Recorder of Riverside County, California (the "Recorder's
Office") wherein DEVELOPER secured for itself and for the benefit of owners of
timeshare interests in the Project (hereinafter referred to as the "Timeshare
Owners") certain use rights in various recreational facilities at the Resort
outlined below.
D. DEVELOPER on even date and simultaneous with execution and recording of
the aforedescribed Recreational License, entered into with the ASSOCIATION that
certain Assignment of Use Rights Under Recreational License pursuant to which it
assigned its rights and delegated most of its duties under the aforedescribed
Recreational License with regard to the Project to the ASSOCIATION.
E. The parties hereto subsequently entered into that certain First
Amendment to Recreational License dated February 12, 1991 and recorded on April
26, 1991 as Instrument No. 137896 (the "First Amendment") in the Recorder's
Office in order to amend and/or clarify certain provisions of the Recreational
License.
F. The parties hereto wish to amend and restate herein the Recreational
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License and First Amendment.
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NOW, THEREFORE, in consideration of the mutual premises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
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1. RECITALS. The aforedescribed recitals are true and correct.
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2. GRANT OF LICENSE; NO INTEREST OR ESTATE GRANTED. OWNER hereby reconfirms
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its grants to DEVELOPER, for the benefit of itself, its permitted assigns,
and its intended beneficiaries, the Timeshare Owners, and the DEVELOPER'S
subsequent assignment to the ASSOCIATION, of a license to use, subject to
all of the terms and conditions hereof, the Resort golf courses, tennis
courts, spa facilities and resort swimming pool specifically designated in
Paragraph 3 hereinbelow (hereinafter sometimes collectively referred to as
"Facilities"). DEVELOPER agrees that neither it nor any party(ies) claiming
rights through or under it have or shall claim, at any time, any interest
or estate of any kind or extent whatsoever in the Resort premises upon
which the Facilities are located by virtue of this Agreement or any
permitted use hereunder.
3. DESIGNATED USE OF SPECIFIC FACILITIES. With respect to the Facilities,
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DEVELOPER and its permitted assigns, including the ASSOCIATION and the
Timeshare Owners and their family members, guests, certain renters and/or
other certain authorized users of an assigned condominium unit at the
Project, as applicable, (hereinafter for the sake of convenience sometimes
collectively referred to as "permitted users"), shall have the following
use rights during any period of time such certain permitted users are
occupying an assigned condominium unit at the Project:
(a) the right to use the Resort golf courses on the same basis, including
payment of standard greens fees, as hotel guests;
(b) the right to use the Resort tennis courts on the same basis as hotel
guests, except that they shall not be required to pay a fee for court
time;
(c) the right to use the Resort spa facilities on the same basis as hotel
guests, to include, for example, payment of a daily admission fee and
standard user fees except they and their permitted users shall not be
required to pay a daily admission or entry fee to gain access to the
Resort spa facilities, unless such permitted users other than
Timeshare Owners themselves are renters who may only have access to
the exercise and weight room free of charge and must pay the daily
admission or entry fee for the spa; and
(d) the right to use the Resort swimming pool on the same basis as hotel
guests.
4. FEES. DEVELOPER acknowledges the fact that permitted users will be charged
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reasonable use fees for the use of the Facilities as imposed by OPERATOR
for hotel guests and/or the general public, whichever is less, except there
shall be no fee for tennis court time or entry into the Resort spa
facilities for permitted users (excluding renters) other than as discussed
in Subparagraphs 3(b) and 3(c) above.
DEVELOPER acknowledges the fact that the OPERATOR may increase the fees
imposed in the future, and all permitted users shall pay the same increased
fees as that
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paid by hotel guests and/or the general public at large, whichever is less.
There shall be no initiation fee charged to the DEVELOPER and/or its
permitted assigns and intended beneficiaries for the privileges granted
hereunder; however, there shall be an annual fee. The initial annual fee
was $20.00 per timeshare interest for each condominium unit at the Project
and is currently $28.80 per such timeshare interest. The annual fee in
either case shall begin when a unit is annexed into the Project and a
certificate of occupancy is issued for those weeks that are occupiable
during the first year of operation; thereafter, the annual fee shall be
collected for each of the fifty-one weeks or timeshare interests in each
condominium unit which is part of the Project as of January 1st of each
year. The OPERATOR reserves the right to adjust this fee annually to
reflect increased costs of operations. Notwithstanding the foregoing, the
annual increase in said annual fee shall not exceed the increase in the
Consumer Price Index (as hereinafter defined) plus one percent (1%) (e.g.,
if the Consumer Price Increase equals five percent (5%), then the annual
increase shall equal six percent (6%) since the date of the most recent
increase in such annual fee, but in no event shall the annual increase be
more than fifteen (15%) percent in any given year. For purposes hereof, the
Consumer Price Index shall mean the Revised Consumer Price Index for Urban
Wage Earners and Clerical Workers, all items 1982-4=100, for the Riverside
County, California Metropolitan Statistical Area presently published by the
U.S. Department of Labor, Bureau of Labor Statistics (the "Bureau"),
Washington, D.C. If the foregoing standard is no longer available, then the
parties may mutually agree to a different standard; if they cannot agree on
a different standard, then they shall submit the matter to binding
arbitration. Payment of the annual fees by DEVELOPER shall be due no later
than March 1st of each year for that year's play (except for the first year
of operation, where the annual fees will be paid in arrears on a monthly
basis as condominium units are annexed into the Project and a certificate
of occupancy is issued for same) or such other date as is mutually agreed
to by OPERATOR and DEVELOPER. Annual fees due and owing after March 1st or
such other date mutually agreed to by OPERATOR and DEVELOPER shall bear
interest at the rate of twelve percent (12%) per annum. Upon non-payment of
the annual fees required hereunder or any other default by DEVELOPER,
OPERATOR shall provide the DEVELOPER with a written notice of said default
and simultaneously provide a copy of such notice to the ASSOCIATION as
described in paragraph 10 hereinbelow. The DEVELOPER shall have fifteen
(15) days after receipt of said written notice to cure same. If such
defaults are not cured within this period, or as extended by OPERATOR in
its sole discretion, then the OWNER may terminate all of DEVELOPER's rights
hereunder, and this Agreement shall become null and void. In the event that
this Agreement is terminated pursuant to Paragraph 7 below prior to the end
of its normal term, as renewed, if any, then the DEVELOPER or the
ASSOCIATION, as applicable, shall be entitled to a refund of a pro-rated
portion of the annual fee for the unused portion of the year in which the
Agreement was terminated.
5. ADHERENCE TO PUBLISHED RULES; CONSEQUENCES OF VIOLATIONS. The DEVELOPER
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acknowledges that it, and those claiming rights to the use of the
Facilities under it, will obey all rules and regulations of the OPERATOR
and its staff
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for use of the Facilities. Violators will be subject to the reasonable
penalties for violations of the rules and regulations. However, such
violations shall not otherwise affect the rights of the DEVELOPER, its
permitted assigns and its intended beneficiaries under this Agreement.
6. RESPONSIBILITY FOR OPERATION, REPAIR AND MAINTENANCE OF FACILITIES. It is
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understood by the parties hereto that the responsibility for operation,
repair and maintenance of the Facilities rests solely with the OWNER,
OPERATOR and/or its staff who shall maintain the Facilities in reasonably
satisfactory conditions. The DEVELOPER shall not be required to make any
repairs or maintain or operate the Facilities. The OWNER and/or OPERATOR
shall be permitted to close any of the Facilities for reasonable
maintenance and repairs, including, but not limited to, times during usual
and customary reseeding requirements of golf courses within the Coachella
Valley area, so long as some reasonable use of the Resort golf course,
tennis courts and/or Resort spa facilities is still available to the
DEVELOPER and/or any party(ies) claiming rights hereunder by or through it.
7. ADDITIONAL AND/OR CONTINUED USE OF FACILITIES. Nothing contained in this
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Agreement shall limit in any way the right of the OWNER or OPERATOR, or any
of their successors or assigns, to provide other persons or entities with
rights to use or otherwise enjoy the Facilities; provided, however that the
DEVELOPER and its permitted assigns and intended beneficiaries shall
continue to enjoy reasonable access to and use of the Facilities. The
rights and obligations of the parties contained herein are contingent on
the continued existence of such Facilities, and they shall be in effect
only for as long as such Facilities are in existence and the Resort is
operated as a hotel. The OWNER or OPERATOR shall have the right to remove
or change the design or use of any Facilities or discontinue the operation
of any portion of the Facilities, so long as golf, tennis, spa and swimming
pool facilities are still available to the DEVELOPER and its permitted
assigns and intended beneficiaries. Notwithstanding the foregoing, the
OWNER or OPERATOR may eliminate spa facilities if they no longer remain
economically feasible to operate and are no longer made available to hotel
guests, so long as OWNER or OPERATOR have provided not less than thirty
(30) days advanced written notice of such elimination to the DEVELOPER
and/or the ASSOCIATION, as applicable. Should the Facilities, or any
essential part thereof, be totally destroyed by fire or other casualty,
this Agreement shall immediately terminate. In the case of partial
destruction where use would be materially inhibited without major
reconstruction, this Agreement may be terminated by any party giving
written notice to the other party(ies) specifying the date of termination.
Such notice shall be given within thirty (30) days prior to the termination
date therein specified. The OWNER and OPERATOR make no representation that
any entity, including the OWNER, OPERATOR or Marriott International, Inc.,
will be or remain affiliated with the Resort or that the Resort will
continue to be operated as such in the future. However, so long as the
Resort is operated as a hotel and the Facilities continue to remain open to
hotel guests and/or the general public, the DEVELOPER and any party(ies)
claiming rights by or through the DEVELOPER shall continue to be allowed to
utilize the Facilities. If the Facilities are no longer available for use
as set forth herein for whatever reason,
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then the DEVELOPER (or the ASSOCIATION upon assignment of the DEVELOPER's
rights and responsibilities hereunder) may terminate this Agreement with
prior advanced written notice to the OPERATOR setting forth the reason for
termination, and no party hereto shall thereafter have any further
obligations hereunder.
8. INSTALLATION OR ATTACHMENT OF PROPERTY TO RESORT PREMISES; MODIFICATION OR
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ALTERATION OF FACILITIES. The DEVELOPER agrees that neither it nor any
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party(ies) claiming rights hereunder by or through it shall install or
attach any property to the Resort premises upon which the Facilities are
located nor, in any way, modify or alter the Facilities.
9. TERM. Subject to Paragraph 7 above, this Agreement shall continue through
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December 31, 2009, and it shall be automatically renewable for successive
five (5) year periods unless terminated sooner as provided herein. Subject
to Paragraph 7 above, any party may terminate this Agreement at the end of
the initial or subsequent term by giving written notice to the other
party(ies), specifying the date of termination, such notice to be given not
less than thirty (30) days prior to the end of the term.
10. ASSIGNMENT. No assignment of this Agreement shall be made by the
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DEVELOPER without the prior written consent of the OWNER, which approval
shall not be unreasonably withheld, except for an assignment, in whole or
in part, by the DEVELOPER to an affiliated entity of the DEVELOPER or to
the ASSOCIATION. Upon receipt of a certificate of occupancy for a
condominium unit constructed at the Project and such unit becoming part of
the timeshare plan, the DEVELOPER's rights to use of the recreational
facilities described herein shall automatically be assigned to the
ASSOCIATION and the ASSOCIATION agrees to assume any and all obligations of
the DEVELOPER hereunder, except for the requirement to provide
indemnification to the OWNER pursuant to Paragraph 11 herein. The
ASSOCIATION shall make the annual fee part of the ASSOCIATION's annual
budget, and it shall collect the annual fee as part of the annual
assessment and pay the entire amount for the annual fee due and owing to
the OPERATOR either to the DEVELOPER or, with the DEVELOPER's consent,
directly to the OPERATOR. The OWNER agrees to allow the ASSOCIATION and its
members to utilize the Facilities described herein and to allow the
ASSOCIATION to cure any defaults by the DEVELOPER hereunder. In this
regard, the OWNER and OPERATOR agree to provide the ASSOCIATION with a
written copy of any notice of a default hereunder sent to the DEVELOPER.
Similarly, should the ASSOCIATION not receive full payment of the annual
fees required to be paid hereunder due to non-payment of assessments by the
ASSOCIATION's members, then the DEVELOPER shall have the right to pay such
fees to the OPERATOR so as to not give rise to a default and termination of
its use rights hereunder, and thereafter, the DEVELOPER shall be entitled
to recoup all such monies from the ASSOCIATION.
11. INDEMNIFICATION. OPERATOR and DEVELOPER hereby jointly and severally
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indemnify the OWNER and hold the OWNER harmless from and against any
claims, demands, damages, liabilities and expenses, including attorney's
fees and disbursements,
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arising out of or in connection with any claims by purchasers of timeshare
interests at the Project that they have not received rights to use any of
the Facilities or that such rights are misrepresented or not adequately
disclosed to them.
l2. NOTICES. Any notices required hereunder shall be delivered personally with
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evidence of receipt, by certified, U.S. mail, return receipt requested, or
by a nationally recognized overnight courier service at the addresses set
forth below or such other address designated by the parties hereto as
follows:
If to OWNER: MARRIOTT DESERT SPRINGS LIMITED
PARTNERSHIP
c/o Host Marriott Corporation
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Attn: Bruce Wardinski, Treasury Dept.
10400 Fernwood Drive (Dept. 72/924.11)
Washington, D.C. 20058
If to OPERATOR: DESERT SPRINGS HOTEL SERVICES
c/o Marriott Hotel Services, Inc.
Attn: James P. Graham, Accounting Dept.
74-855 Country Club Drive
Palm Desert, California 92260
If to DEVELOPER: MARRIOTT OWNERSHIP RESORTS, INC.
ATTN: Executive Vice President
and General Manager
1807 Crystal Lake Drive
Post Office Box 890 (33802 for P.O. Box)
Lakeland, Florida 33801
If to ASSOCIATION: DESERT SPRINGS VILLAS
TIMESHARE ASSOCIATION
c/o Marriott Resorts Hospitality
Corporation
ATTN: Vice President of Operations
1200 U.S. Highway South, Suite 10
Lakeland, Florida 33801
13. WRITTEN AGREEMENT AS ENTIRE UNDERSTANDING OF PARTIES. The making, execution
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and delivery of this Agreement by the DEVELOPER and the ASSOCIATION have
been induced by no representations, statements, warranties, or agreements
other than those herein expressed. This Agreement embodies the entire
understanding of the parties. There are no other agreements or
understandings, written or oral, in effect between the parties, relating to
the subject matter hereof. This instrument may be amended or modified only
by a written instrument signed by the respective parties hereto.
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14. BINDING EFFECT. This Agreement is binding upon the successors and
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assigns of the parties hereto.
15. GOVERNING LAW. The provisions of this Agreement shall be governed by
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California law.
IN WITNESS WHEREOF, the parties hereto have set their respective hands and
seals on the dates hereinbelow listed.
OWNER:
MARRIOTT DESERT SPRINGS
LIMITED PARTNERSHIP
BY: Marriott Desert Springs Corporation,
a Delaware corporation,
General Partner
ATTEST: /s/ Christopher G. Towsend BY: /s/ Robert E. Parsons, Jr.
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Christopher G Townsend, Robert E. Parsons, Jr.,
Secretary President
(Corporate Seal) DATE:
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OPERATOR:
DESERT SPRINGS HOTEL SERVICES
BY: Marriott International, Inc., a
Delaware Corporation, Joint Venturer
ATTEST: /s/ Joan Rector McGlockton BY: /s/ William R. Tiefel
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Joan Rector McGlockton, William R. Tiefel,
Secretary Vice President
(Corporate Seal) DATE:
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DEVELOPER:
MARRIOTT OWNERSHIP RESORTS, INC.
a Delaware corporation
ATTEST: /s/ Joseph F. Scalo BY: /s/ Robert M. Eckenroth
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Joseph F. Scalo, Robert M. Eckenroth,
Assistant Secretary Vice President
(Corporate Seal) DATE: January 1, 1994
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ASSOCIATION:
DESERT SPRINGS VILLAS
TIMESHARE ASSOCIATION
a California non-profit mutual benefit
corporation
ATTEST: /s/ Robert M. Eckenroth, BY: /s/ Joseph Lawrence
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Robert M. Eckenroth, Joseph Lawrence,
Secretary President
(Corporate Seal) DATE: February 3, 1994
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STATE OF MARYLAND )
) SS.
COUNTY OF MONTGOMERY )
On February 9, 1994, before me, the undersigned, a Notary Public in and for
said State, personally appeared Robert Parsons and Christopher Townsend,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the persons who executed the within instrument as President and Secretary
of Marriott Desert Springs Corporation, General Partner of Marriott Desert
Springs Limited Partnership that executed the within instrument, and
acknowledged to me that such corporation executed the within instrument pursuant
to its Bylaws or a resolution of its Board of Directors and under authority of
the partnership.
WITNESS my hand and official seal.
/s/ Laura Anna Babin
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Notary Public
LAURA ANNA BABIN
NOTARY PUBLIC STATE OF MARYLAND
My Commission Expires November 30, 1997
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STATE OF MARYLAND )
)SS.
COUNTY OF MONTGOMERY )
On February 10, 1994, before me, the undersigned, a Notary Public in and
for said State, personally appeared William R. Tiefel and Joan Rector
McGlockton, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the persons who executed the within instrument as Vice President
and Secretary of Marriott International, Inc., a joint venturer of Desert
Springs Hotel Services that executed the within instrument, and acknowledged to
me that such corporation executed the within instrument pursuant to its Bylaws
or a resolution of its Board of Directors and under authority of the joint
venture agreement.
WITNESS my hand and official seal.
/s/ Gail L. Kane
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Notary Public
[SEAL OF NOTARY PUBLIC APPEARS HERE]
STATE OF FLORIDA )
)ss.
COUNTY OF POLK )
On January 1, 1994, before me, the undersigned, a Notary Public in and for
said State, personally appeared Robert M.. Eckenroth and Joseph F. Scalo,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the persons who executed the within instrument as Vice President and
Assistant Secretary of Marriott Ownership Resorts, Inc. that executed the within
instrument, and acknowledged to me that such corporation executed the within
instrument pursuant to its Bylaws or a resolution of its Board of Directors.
/s/ Kathy L. Bedgood
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(Signature of person taking acknowledgment)
[SEAL OF NOTRARY
PUBLIC APPEARS HERE] Kathy L. Bedgood
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(Name of officer taking acknowledgment -
typed, printed or stamped)
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(Title or rank)
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(Serial number, if any)
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STATE OF CALIFORNIA )
)SS.
COUNTY OF LOS ANGELES )
On February 3, 1994, before me, the undersigned, a Notary Public in and
for said State, personally appeared, Joseph Lawrence personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as President of Desert Springs Villas Timeshare
Association, a California non-profit mutual benefit corporation, that executed
the within instrument, and acknowledged to me that such corporation executed the
within instrument pursuant to its Bylaws or a resolution of its Board of
Directors.
WITNESS my hand and official seal.
/s/ Marvett J. Bolding
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Notary Public
STATE OF FLORIDA ) [SEAL OF
)ss. NOTARY PUBLIC
COUNTY OF POLK ) APPEARS HERE]
On__________ , 19__, before me, the undersigned, a Notary Public in and for
said State, personally appeared Robert M. Eckenroth, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Secretary of Desert Springs Villas Timeshare
Association, a California non-profit mutual benefit corporation, that executed
the within instrument, and acknowledged to me that such corporation executed the
within instrument pursuant to its Bylaws or a resolution of its Board of
Directors.
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(Signature of person taking acknowledgment)
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(Name of officer taking acknowledgment -
typed, printed or stamped)
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(Title or rank)
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(Serial number, if any)
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CONSENT
The undersigned, as holder of the beneficial interest in and under
that certain Deed of Trust dated July 26, 1989 and recorded on July 27,
1989 as Instrument No. 250481 in the Office of the County Recorder of
Riverside County, California which Deed of Trust is by and between
Marriott Desert Springs Limited Partnership, a Delaware limited
partnership, as Trustor, Commonwealth Land Title Company, a California
corporation, as Trustee, and the First National Bank of Chicago, a
National Banking Association, acting for itself and as "Agent" as
described in the Deed of Trust) as Beneficiary, hereby consents to the
rights of the Developer under that certain Amended and Restated
Recreational License dated the 1st day of January, 1994, by and among
Marriott Desert Springs Limited Partnership, a Delaware limited
partnership, as licensor, (the "OWNER"), Desert Springs Hotel Services
(the "OPERATOR") and Marriott Ownership Resorts, Inc., a Delaware
corporation, as licensee (the "Developer"), to which this Consent is
appended. The undersigned, should it acquire title to the real and
personal property through foreclosure or by deed in lieu of foreclosure,
shall recognize each and every right of the Developer and its permitted
assigns and/or intended beneficiaries under the Amended and Restated
Recreational License, provided that the Developer shall perform each of
its obligations thereunder. The undersigned, for the benefit of the
Developer and its successors and assigns, hereby declares that the
consents expressed hereunder shall be binding upon its successors and
assigns, shall be covenants running with the real property which is
subject to the Recreational License and shall comprise equitable
servitudes upon such property.
THE FIRST NATIONAL BANK OF CHICAGO,
a national banking association, for itself
and as Agent as aforesaid
BY:
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Its:
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DATE:
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STATE OF_________________)
)ss.
COUNTY OF________________)
I hereby certify that on this ____ day of ______________, 1994, before the
subscriber _________________________, personally appeared ____________________,
____________________ of The First National Bank of Chicago, did acknowledge the
foregoing instrument to be the act and deed of The First National Bank of
Chicago.
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Notary Public
My commission expires:
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