2017 Alvariz-Barton - Appurtenance Agr - Dunes Golf Course & HaciendasAPPURTENANCE AGREEMENT
DUNES GOLF COURSE/HACIENDAS
This Appurtenance Agreement — Dunes Golf Course/Haciendas ("Agreement") is entered
into by and between Waldorf-Astoria Management LLC, 90210 Desert Resorts Management
Co., LLC, LQR Golf. LLC ("LQR Golf'), LQR Property LLC and KSLR Asset Management,
LLC (collectively, "LQR Parties"), Coachella Valley Water District ("CVWD"), and City of La
Quinta ("City") (individually, "Party"; collectively, "Parties"),
RECITALS
A. Two actions were filed in the Riverside Superior Court against "La Quinta
Resort", HOA, CVWD, and City resulting from damages allegedly caused by a large monsoonal
storm occurring on September 8, 2014 (the "Storm"), Alveriz, et at v, City of La Quinta, et al„
PSC 1503161 ("Alveriz"), and Barton, et al. V. City of La Quinta, et al., PSC 1505200 ("Barton")
(together, the "Actions"), The Alveriz action, filed on July 10, 2015, is brought by Plaintiffs
Guadalupe Alveriz/Elsa Diaz; Maria Barba/Carlos Lopez; Maria and Steven Cardinal; Kasia and
Steven Gardner; Ted Hammam/Joyce Liteh; Gabriella Monplaisir; Donna and James Nowlin;
Diane Scurlock; Richard and Kristen Simons; Terry Tryon; Ana and Guillermo Vargas;
Gabriella and Ricardo Vega; and Dale and Linda Wissman (collectively, "Alveriz Plaintiffs").
The Barton action, filed on November 6, 201S, is brought by Tim and Jamie Barton; Gene
Bordeleau/Angela Kelly; David Bulechek, David W. Bulechek, as Trustee of Trust B, created
under the Bulechek Family Trust Agreement dated May 21, 1993 and David W. Bulechek, as
Trustee of Trust C, created under the Bulechek Family Trust agreement dated May 21, 1993
(David W. Bulechek Trustee of Trusts B and C jointly, "Bulechek Trustee"), Bulechek Trustee
erroneously named as Plaintiff Bulechek Family Trust Under Trust Agreement Dated 5/21/1993;
Jean and Paul Forchelli; Al and Rose Garcia; Don Gilmore/Barbara Stroh; Glenn Lerner/MJP
GAL Properties, LLC; James C. Lewis; Debby Kennedy and Paul Lorensini; Jeannette Mendoza;
Ron and Jan Olson; Christopher and Shirley Painter; Michael and Lucinda Robson; Luis
Sato/Elaine Valencia; Harry and Ann Schaffner; Monica and Roger Vaughn; Leonard and
Phyllis Webster; and Jeff and Lisa Zella (collectively, "Barton Plaintiffs") (the Alveriz and
Barton Plaintiffs, collectively, "Plaintiffs"). The LQR Parties were later named in amended
complaints, although the "La Quinta Resort" remained as an erroneously named Plaintiff.
II. Alveriz Plaintiffs Richard and Kristen Simons and Barton Plaintiffs Tim and
Jamie Barton; Gene Boxdeleau/Angela Kelly; David Bulechek Bulechek Trustee erroneously
named as Plaintiff Bulechek Family Trust Under Trust Agreement Dated 5/21/1993; Jean and
Paul Forchelli; Don GllmoreBarbara Stroh; Glenn LerneriMJP GAL Properties, LLC; James C,
Lewis; Debby Kennedy and Paul Lorensini; Jeannette Mendoza; Ron and Jan Olson; Harry and
Ann Schaffner; Leonard and Phyllis Webster; and Jeff and Lisa Zella claim, among other things,
that certain flood control management systems in and near the Haciendas at La Quinta and
Dunes Golf Course, as well as near the intersection of Eisenhower Drive and Avenue 50, caused
or contributed to the damage to their properties ("Contested Haciendas Flood Control
Appurtenances").
C. The Contested Iaciendas Flood Control Appurtenances include two 36-inch
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reinforced concrete pipes CWTs"), one of which runs from the lake at hole 13 of the Dunes
Golf Course ("Lake-13") to the La Quinta Evacuation Channel ("LQEC"), and the other of
which runs from the lake at the south end of the hole 12 fairway of the Dunes Golf Course
("Lake-12") to the LQEC, both of which are depicted in the drawing attached as Exhibit "A"
hereto and marked 36" Culvert and RCP Culvert 36" x 125', respectively.
D. The Contested Haciendas Flood Control Appurtenances also include a 48- nch
RCP that runs from the curb catch basin on the west side of Eisenhower Drive, just south of
Avenue 50, to Lake43, Said catch basin and RCP are depicted in the Eisenhower Drive, Calle
Tampico to Avenue 50, Drainage Plan and Profile, Sheet 9 of 38, attached as Exhibit B
(hereinafter, `Eisenhower Drive Catch Basin and RCP").
E. Each of the Parties deny liability for any and all of Plaintiffs' alleged damages
arising from or caused by the Storm. Nothing in this Agreement shall be construed as an
admission of liability or responsibility at any time or for any purpose.
F. Plaintiffs and the Parties entered into a Settlement Agreement and Mutual
Release ("Settlement Agreement") made and entered into as of March 1, 2017, which sets forth
the terms and conditions of settlement of the Actions against the LQR Parties, HOA, CVWD,
and City.
G, Notwithstanding that the Parties deny liability for any and all damages claimed by
Plaintiffs in the Actions, in consideration of the releases set forth in the Settlement Agreement,
which Settlement Agreement is incorporated herein by this reference, each Party agrees that
certain of its ongoing practices will continue and it will undertake, but only to the extent the
Party agrees hereunder, certain modified practices going forward with regard to the Contested
Haciendas Flood Control Appurtenances as follows:
AGRE);MENT
NOW, THEREFORE, in consideration of the covenants and conditions contained herein,
the Parties agree as follows;
1. TOR Golfs Right to Use 36-Inch RCFs,, LQR Golf shall have the right to
continue using the two 36-I11ch RCPa to discharge water from Lake-13 and Lake-12, as it has
been doing, LQR and HOA shall continue to have the respective rights and responsibilities
described in the easement agreement that LQR Golf has with the HOA, recorded in the official
records of the County of Riverside on March 5, 2003, Doc # 2003-154761, LQR Golf may
continue to pump water from the hole 3 tee box of the Dunes Course through its existing pipe
that connects to the 36-Inch RCP and runs up the 364nch RCP into Lake-12, as agreed between
CVWD and LQR Golf and pursuant and subject to the easement LQR Golf has with CVWD,
recorded in the official records of the County of Riverside on April 25, 1983, Book 1983, Page
77710, except during a monsoonal rainstorm or when it would conflict or interfere with Lake-
12's use for storm water and flood control purposes. Nothing in this paragraph shall be
construed as grantingLQR Golf the right to open the flap gate of the RCP connecting Lake-12 to
the LQEC for, purposes of pumping water from the LQEC into Lake-12. LQR Golf also must
comply, and shall be responsible for ensuring compliance, with any and all applicable federal,
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state, and local laws, rules, and regulations relating to its use of the 36-Inch RCPs, Lake-13 and
Lake-12.
2. LOR Golf s Responsibilities re 364nch RCPs, LQR Golf shall be responsible for
any and all routine maintenance work with regard to the 36-inch RCPs, which shall include
performing scheduled inspections and preventative maintenance of the inlets, outlets, and flap
gates of the RCPs, keeping the respective entrances and inlets to the RCPs leading from Lake-13
and Lake-12 neat, clean, and clear of debris, keeping the exits, outlets, and flap gates on the
LQEC side of the RCPs neat, clean, and free of debris, and performing any necessary repairs to,
and replacement of, the inlets, outlets, and flap gates, to ensure that the RCPs function properly,
Unless caused by the failure to discharge its responsibilities under this Agreement, LQR Golf s
repair and replacement obligations shall not extend to the any other parts or segments of the 36-
inch RCPs,
3, CVWD's Responsibilities re 364nch RCPs. CVWD shall be responsible for
repairing or 'replacing the 36-Inch RCPs when necessitated by obsolescence, worn out equipment
due to ordinary wear and tear, or excavations performed by CVWD or its contractor, CVWD
shall also be responsible for inspecting the integrity of the 36-Inch RCPs on an annual basis. For
illustration purposes only, in the event a 36-Inch RCP breaks due to ordinary wear and tear,
CVWD shall be. responsible for repairing or replacing the RCP, or portions thereof, under this
paragraph. By contrast, in the event a 36-Inch RCP breaks due to LQR Golfs failure to
discharge its maintenance responsibilities under paragraph 2 of this Agreement, LQR Golf shall
be responsible for repairing or replacing the RCP, or portions thereof, under paragraph 2. Except
for the inspection responsibility set forth in this paragraph, CVWD shall have no routine
maintenanceobligations or conveyance responsibilities with regard to the 36-Inch RCPs, or any
parts or segments thereof.
4, Lake-13 Water Level, LQR Golf shall maintain Lake,43 at or above its current
storage volume and shall reduce the water level in Lake-13 from July I to September 15 each
year to a level two to three feet above the invert elevation of the outlet for the 48-inch RCP that
runs from the Eisenhower Drive Catch Basin to Lake43, LQR Golf shall further maintain all
transfer piping and pumps used to manage lake height at current capacities or higher,
5. LQR Golfs Responsibilities re 484nch RCP. LQR Golf, as it has been doing,
shall keep the outlet of the 48-inch RCP that drains surface water from Eisenhower Drive to
Lake-13 clear of debris or blockage and shall maintain Lake-13 so as to not interfere with its
utilization as a reservoir within the flood control drainage system that includes without limitation
the Eisenhower Drive Catch Basin and RCP. City shall have no maintenance obligations with
regard to the 484rich RCP outlet.
6. Citv's Responsibilities re Eisenhower Drive Catch Basin and RCP. The City is
the owner of the Eisenhower Drive Catch Basin and RCP. City, as it has been doing, will
continue to maintain the Eisenhower Drive Catch Basin and RCP, and perform routine
maintenance to clear debris from the catch basin and RCP. Nothing in this Agreement shall alter
or affect the rights held by the City under that easement for drainage facilities and incidental
purposes granted the County of Riverside by deed recorded November 19, 1981 as instrument
No. 216750, official records, as depicted therein and on Parcel Map No. 28334, said easement
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having been assumed by the City upon its incorporation,
7, Easement between LQR and Haciendas At La Quinta Homeowners Association
("HOA"1 regarding Contested Haciendas Flood Control Appurtenances at Lalce-12 The parties
hereto recognize that there exists an express easement between the HOA (as successor to Sedona
Homes) and LQR, entitled "Grant of Easement for Drainage" dated February 19, 2003 and
recorded on March 5, 2003 (Doc. # 2003-154761) (the "HOA Easement") (attached hereto as
Exhibit C) whereby the HOA agrees, among other things, to inspect and maintain certain flood
control pipes and appurtenances within its common area that convey surface water to one or the
other of the two lakes on Dunes 12th hole, as more particularly specified in that HOA Easement.
Nothing in this Agreement is intended to modify or limit the terms of any and all operative
recorded Drainage Easements pertaining to the HOA.
8. Effective Date, This Agreement shall become effective upon execution by all
Parties,
9. Entire Agreement. This Agreement contains the entire agreement of the Parties
with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or
agreements.
10. Amendment of Agreement, No supplement, modification, or amendment of this
Agreement shall be binding unless executed in writing and signed by all Parties.
110 Mutual Indemnification, Each Party ("Indemnitor") agrees to defend, at its own
expense including payment of reasonable attorneys' fees, indemnify and hold harmless every
other Party, its Board of Directors, directors, City Council, commissions, council members,
agents, officers and employees ("Indemnitee"), sued by a third party in connection with or
related to the Indemnitor's performance of its responsibilities under this Agreement, or the
exercise of any rights described in paragraph I of this Agreement, from all costs, penalties,
damages, liability and claims of any nature whatsoever, including but not limited to liability for
bodily injury, sickness, disease, death, or property damage (including loss of use), caused by or
arising out of or relating to any negligent act, or error or omission of the Indemnitor, its officers
or employees, or any other agent acting pursuant to Indemnitor's control and performing under
this Agreement. To the extent that more than one Party is determined to have been negligent or
at fault, the Parties agree that each Party shall bear its own portion or percentage of liability and
proportionate share of attorney's fees and indemnify and hold harmless the other party from the
Indemnitor's share of liability, Notwithstanding the foregoing, nothing herein shall be construed
to require the Indemnitor to defend, indemnify or hold harmless the hrdemnitee from any claims
arising from the sole negligence or willful misconduct of the Indemnitee, The Indemnitee shall
promptly, after becoming aware of any threatened or actual lawsuit, notify the Indemnitor of any
claims it determines are within the scope of this indemnity provision, and if the defense is
provided by Indemnitor on a tendered claim, cooperate with the defense of that claim,
12, No Third PartyBeneficiaries, Nothing in this Agreement is intended to create
duties or obligations to, or rights in, third parties not parties to this Agreement.
kage 4 of 8
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134 Successors and Assigns, This Agreement shall bind and inure to the benefit of the
Parties hereto and their respective governing bodies and their individual board members, heirs,
executors, administrators, legal representatives, successors, subsidiaries, parent corporations, and
assigns.
14, Construction of Agreement. No provision of this Agreement shall be construed
against any of the Parties based upon any of the Parties drafting any portion of this Agreement,
15, Authority to Enter Agreement, Each Party signing this Agreement represents and
warrants that the individual signing this Agreement on a Party's behalf is fully authorized to do
so and has obtained all necessary approvals to bind that Party to the terms of this Agreement.
16. Governing Law, This Agreement shall be deemed to have been entered into in
the State of California, and governed and interpreted by the laws of the State of California.
17, Waiver. No waiver of any default shall constitute a waiver of any other default or
breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or
service voluntarily given or performed by a Party shall give the other Party any contractual rights
by custom, estoppel or otherwise,
18. Cooperation and Further Acts, The Parties shall fully cooperate with one another,
and shall take any additional acts or sign any additional documents as may be necessary,
appropriate or convenient to attain the purposes of this Agreement,
19. Confidentiality, There shall be no publicity initiated in any form by any Party or
Party Representative regarding this Agreement, and no Party or Party Representative shall
initiate contact with any media person or media concern in any way regarding this Agreement or
its terms. If a Party or Party Representative receives any inquiry from the media regarding this
Agreement, then such Party or Party Representative shall state only that "The matter has been
amicably resolved," In the event that a Public Records Act request is made to CV WD or City for
any documents related to this Agreement, they shall respond only as is necessary to comply with
the Public Records Act and may answer questions from the public, including the media, relevant
to their response to the Public Records Act request, but shall not disclose the contents of the
LQR Parties' Side Letter Agreement. The Parties acknowledge that the terms of this Agreement
are Public Records subject to disclosure under California's Public Records Act.
20, Counterparts. This Agreement may be signed in counterparts, and any facsimile,
e-mail or other copies of this Agreement or any counterparts, shall be deemed an original,
21. No Change to ExistingEasements, asements, Nothing in this Agreement shall alter or affect
the rights held by or the obligations owed under any easement by or between CVWD, the City,
HOA, and/or the LQR Parties.
1234996,1
Datcdt May_ M17 WALDORF=AS'iORIA MANAGEMENT
LLC
(Signature)
('Print Name)
(Title)
Dated: 1v`tay � �� . 2U1? 90?10 DESERT RESt7ItTS MANAGEMENT
CO., LLC
(Slgnatuie)
(11Iint INanw)
(Title)
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Dated: May _, 2017 LQR GOLF LLC ZIell
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By
( ature)
MICHAELJORDAN CHRIS FRAIOLI
AUTHDRIZEQS1Gt18TOltY A.d.T}tHHF; ",-coo-C,6NATCRY
(Print Name)
Rs:
(Title)
Dated: May, 2017 LQR PROPERTY LLC
By�'�� _
ri7tature)
l
MICHAEL.JpRDDAN CHRIS FRAIOLI
AUTHORIZED BIQ , me) ""' OICNATORY
(Title)
Dated: May 2017 KSLR ASSET MANAGEMENT, LLC
By: _—
(Signature)
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Dated: May .017
LQR GOLF LLC
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(Signature)
(Print Nam
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Dated: May _, 2017 LQR PROPERTY LLC
Bv:
(Signature)
(Print Name)
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(Title)
Dated: May., 201 7 KSLR ASSET MANAGEMENT, LLC
By:
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Dated: May C 7 , 2017 COACHELLA VALLEY WATER DISTRICT
(Signature)
7. M. Barrett
(Print Name)
Its: General Manager
(Title)
Dated: May � 2017 CITY OF LA QLJINTA
By;
(Signature)
(Print Name)
Its:
(Title)
Page g of 8
1234948.1
Dated: May , 2017 COACHELLA VALLEY WATER DISTRICT
By:
(Signature)
(Print Name)
(Title)
Dated: May �$ , 2017 CITY OF LA QUINTA
tl by Frankl.5peracek o1g0Quintarnarzuen]klry.5manager,
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Date: 2017M 118713 07Wa
By;
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FRANKJ.SPEVACEK
(Print Name)
Its: CITY MANAGER
(Title)
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RECORDING REQUESTED BY
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AND WHEN RECORDED MAIL, TO:
KSL DESERT RESORTS,
Atm: Legal Department
50-905 AVENIDA BERMUDAS
LA QUINTA, CA 92253
tSGC N 200S®1�4701
03/03/2003 MOO FaCW00
Page t of to
Racordad In offlolal Records
County of Riverside
Gary L,. Orso
Roaasacr, County Clark 0 Recorder
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D(04
GRANT OF EASEMENT FOR DRAINAGE
THIS GRANT OF EASEMENT FOR DRAINAGE (the "Easement") is made this
day of February, 2003, by and between KSL Desert Resorts, Ino„ a Delaware corporation
�y ("Grantor'), and Sedona Homes Inc., a California corporation ("Grantee").
(' RECITALS
1, Grantor is the owner of certain real property in the City of La Quinta, County of
\� Riverside, and State of California described as follows;
parcel 1 of Parcel Map No. 30519 as per map filed for record in Book 202, pages 31
and 32 of Parcel Maps, Official Records of said County, (the "Golf Property").
2. Grantee is the owner of certain real property in the City of La Quinta, County of
Riverside, and State of California describedas follows:
Lots 1 through 22 and Letter Lots'A through F, inclusive of Tract Map No. 30125-2
("Tract 30125-2") as per map filed for record in Book 322, Pages 13 through 17, inclusive of Maps,
Official Records of said County (the "Real Property").
3, According to the existing drainage pattern an the Real Property, water from rainfall
and landscape Golf Property pursuant o the drainage ftion flows through acilities constructed for such poss portions of the Real urposes onto a portion of the
q, Grantor and Grantee desire to create an easement exclusively for landscape irrigation
and rainfall drainage purposes only (the "Runoff'), through and across certain Storm Drain
Improvements (as defined berein) within the Real Property and the Golf Property for the benefit of
Dreinageaa9at,Aoc Page 1
Exhibit C
the Real Property, and for (a) installation, construction, maintenance, repair, replacement and
reconstruction of the Storm Drain Improvements, (b) reasonable drainage through and across the
Storm Drain Improvements, and (o) the ingress and egress over the Storm Drain Easement Area (as
defined herein) as reasonably necessary for the foregoingpurposes subject to the following terms and
conditions,
NOW THEREFORE, for and in consideration of tha mutual covenants, conditions and
agreements herein contained, Grantor shall grant to Grantee the easements and rights described
herein and Grantee, by the execution and recordation of this document, agrees to accept the
conveyance of such easement rights subject to the terms and conditions more particularly set forth
below.
Unless the context clearly means otherwise or unless otherwise deRned below, the following
terms used in this Easement Agreement shall mean as follows:
Section 1.01 -Storm Drain Easement Area, "Storm Arain Easement Area" shall mean (a)
those portions of the Golf Property, adjacent to Lot 11 of Tract 30125-2, wherein a lake is located
that accepts the Runoff fromthe Storm Drain Improvements located within Lot 11 of Tract 30125-2
and (b) those portions of Lot 11 of Tract 30125-2 on which Storm Drain Improvements are located.
Section 1.02 -Storm Drain Improvements. "Storm Drain Improvements" shall mean as to
I.ot 11, the catch basins, pipes, concrete structures, surface drainage ditches, grates, dry wells,
devices or other drainage improvements constructed or installed within Lot 11 of Tract 30125-2, and
as to the Golf Property, the drainage pipe to be located within the Storm Drain Easement Area,
which shall extend no further than two feet from the boundary line between Lot 11 and the Storm
Drain Easement Area,
ARTICLE R
GRANT pF EASEMENT
Secjian 2 Ol - Grant of Easement. Grantor hereby grants to Grantee nonexclusive easements
as follows:
14 a nonexclusive easement appurtenant to the Real Property exclusively for landscape
irrigation and rainfall drainage purposes only, over and across the Storm Draht Improvements within
the Storm Drain Easement Area; such nonexclusive easement shall not be used for the drainage of
water from any pools, spas, ponds, lakes or other water treatments; and
1
a nonexclusive easement of access for ingress and egress over and across the surface
of the Storm Drain Easement Area for tha purpose of permitting the Grantee io dischazge its
1111111111111111111111111111111111111111111111111111111
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DrainageEa d.dw Page 2
obligations to construct, manage, operate, control, maintain, repair, restore and replace the $torn
)rain Improvements within the Storm Drain Easement Areas including, without limitation, the repair
and replacement of any and all damago to the surface improvements within the Storm Drain
Easement .Area arising from Grantee's, its successor or asstgns, use of the Storm Drain
Improvements.
ARTICLE III
COTENANT FOR MAINTENANCE
Section 3,0 AssienmentofGranteo0blieations, Granteoshallhavetherighttoassignits
rights and obligations as Easement Holder (defined in Section 3.02 below) with respect to the Work
(defined in Section 3,02 below) to any homeowners association to which the Real Property is
annexed only upon the following conditions: ,Grantee shall remain primarily liable for the
performance of Basement Holder's obligations hereunder and the assignee homeowner's association
must expressly assume in writing, in a form of recordable document satisfactory to Grantor, all of
Easement Holder's obligations hereunder.
Section 2,02 Performance of We Grantee, or its successors and assigns (the "Easement
Holder"), shall have the obligation to perform the maintenance, repair, replacement and
reconstruction of all of such StormDrain Improvements (hereinafter the "Work"), such obligation to
include, without limitation, the obligation to cause an inspection be made of the Storm Drain
Improvements to ensure that such Storm Drain Improvements are free of unreasonable
accumulations of debris as follows: (a) annually, and (b) after a mgjorrainstorm in which at least two
and four tenths (2.4) inches of rain falls In any twenty-four (24) hour period (singularly and
collectively the "Inspection'). Easement Holder shall provide to Grantor a written summary of the
scope and findings of the inspection within ten (10) days of completion of such Inspection,
Section 3.03 - Failure to Perform Work. If Easement Holder for any reason fails to perform
the Work in a timelyfashion, the fee owner of me Golf Property, or portion thereof, that is burdened
with such easement, including Grantor for as long as Grantor continues to be the fee owner of such
real property (the "Burdened Property Ownce? may make a written demand upon Easement Holder
to timely accomplish such Work. If Easement Holder fails, for any reason, to continence the
performance of the Work within ten (10) days of delivery of such written demand, and to thereafter
diligently prosecute the same to completion, such Burdened Property Owner shall have the right, but
not the obligation, to perform the Work. An amount equal to one hundred ten percent (110e/9) of the
actual costs incurred by Burdened Property Owner i pe Onee and
payable by the Easement Holder to suchBurdened Propertywperforming
within ten ( 0) days of a
st
therefor by such Burdened Property Owner.
Section 3.04 - Entry, Entry may be made upon the Storm Drain Easement Areas without
notice only in the event of emergency repair involving potential danger to lifeorproperty. Entryfor
the performance of any other Work may be made upon written notice of not less than ten (10) days
provided that the performance of such Work does not unreasonably disrupt the golfingor the golfing -
related activities upon the Golf Property. The easement for ingress and
ad3egress shall be over the
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nrainaBeE+eelAa Page 3
Storm Drain Easement Areas only and shall be exercised with as little inconvenience to the
Burdened Property Owner as possible. Access to the Storm Drain Easement Areas to accomplish the
performance of the Work shall be had from the portion of the Real Property that is contiguous to
such Storm Drain Easement Areas to the extent reasonably possible. Permission to use any other
portion of the Golf Property for such purposes shall be reasonably given subject to control of the
Burdened Property Owner in accordance with Section 813 of the California Civil Code.
Section 3.05 -Commencement. The obligation of the Grantee or Easement Holder to
construct, manage, operate, control, maintain, repair, restore and replace the Storm Drain
Improvements within the Storm Drain Easement Areas described in this Easement shall commence
upon recordation of this Easement in the Official Records of the Riverside County Recorder,
ARTICLE TV
GENERAL CONDITIONS
Section 4 Ol - Enforocrnent. The terms and conditions of this Easement shall xrur with the
Real Property and shall inure to the benefit of and be enforceable by the Easement Holder and the
Burdened Property Owner; their respective legal representatives, successors and assigns, and the
Easement Holder and the Burdened Property Owner shall have a right of action to enforce by
proceedings at law or in equity, all conditions and covenants imposed by the provisions of this
Easement, or any amendment thereto, including the right to prevent the violation of such conditions
and covenants and the right to recover damages for such violation.
Seation 4 02 - Repair of Damase, Any improvements upon the Golf Property that are
damaged or destroyed in whole or in part as the result of the use of the Storm Drain Easement Areas
for the easement purposes described herein ("Damaged improvements") shall be repaired, replaced,
restored or reconstructed (the "Repair Work") at the cost and expense of the Easement Holder as
soon as reasonablypossible following such damage or destruction to the condition that existed prior
to such damage or destruction, If Easement Holder fails, for any reason, to commence the
performanoeofthaRepair Work to the Damaged Improvements within ten (10)days ofdeGvcryofa
written demand by the Burdened Property Owner, and to thereafter diligently prosecute the same to
completion, such Burdened Property Owner shall have the right, but not the obligation, to perform
the Repair Work. An amount equal to one hundred ten percent (110%) of the actual costs incurred
by Burdened Property Owner in performing such Repair Work shall be doe and payable by the
Easement Holder to such Burdened Property Owner within ten (10) days of a request therefore by
such Burdened Property Owner,
Section 4.03 —Mechanics' Liens, Easement Holder shall not suffer or permit to be enforced
against any portion of the Golf PropeRy-any mecharries', materialmen's, contractors' or
subcontractors' liens arising out of the Work. Easement Holder shall cause any of such liens to be
removed or the enforcement thereof stayed (whether by payment, posting of a property bond, or
otherwise) before the foreclosure of any such liens against any such portions of the Golf Property.
I'III) �IIIII �II� IIIIIII �I� (IIII �IIII�I II� �IIII �I�I I��) 99?09J4 Bf4A 018Bfl
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Section 4.04 - indemnity.
(a) Grantee, for itself and on behalf of any other Easement Holders who acquire the
easement rights and obligations described herein agree to indemnify,protect, defend and hold
harmless the Grantor and any other Burdened Property Owner and their officers, directors, members,
share -holders, employees, agents and contractors (collectively, the "Indemnified Parties') from and
against any and all claims, obligations, expenses, liabilities and costs, including, but not limited to,
attorneys'. fees, for property damage and bodily injury, sickness, disability, disease or death of any
person or persons arising directly or indirectly from the failure of the Easement Holder to diligently
perform the Work in a manner that will ensure that such Storm brain Improvements are retained in a
safe and acceptable condition or out of the Easement Holder's activities in discharging its obligations
hereunder, or out of any defect in the construction or the design of the Storm Drain Improvements
constructed and/or installed by Easement Holder upon the Golf Property.
(b) Grantee, for itself and on behalf of any other Easement Holders whc acquire the
easement rights and obligations described herein agree to indemnify, protect, defend and hold
harmless the Indemnified Parties from and against any and all claims, obligations, expenses,
liabilities and costs, including, but not limited to, reasonable attorneys' fees, that arise outof any use,
storage, transfer, generation, disposal, or discharge of Hazardous Materials in connection with the
construction, maintenance, installation or repair of Grantee's Storm Drain Improvements or
Grantee's use of the Storm Drain Easement Area, As used in this Easement, "Hazardous Materials"
means:
{i) All substances, wastes, pollutants, contaminates, and materials now or
hereafter regulated, or defined or designated as hazardous, extremely or imminently
hazardous, dangerous, or counterpart, as well as these statutes' implementing regulations; the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42
ILS,C. §9601 et seq,; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136
et seq.; the Atomic Energy Act of 1954, 42 U,S,C, §2001 et seq.; and the Hazardous
Materials Transportation Act, 49 U.S.C. §5101 et seq,;
(ii) Any additional hazardous substances or materials that are now or become
defined as "hazardous substances," "hazardcus waste;' "toxic substances," or "toxic waste"
under any other federal law or under any state, county, municipal, or other law applicable to
the Storm Drain Easement Area or under any regulations promulgated under any such law;
(iii) Petroleum and petroleum products including crude oil and fractions thereof;
(iv) Asbestos; and
(v) Natural gas, synthetic gas, and any mixtures thereof.
Section405-No Waiver, Faiiurebythe Burdened Property Owner toenforceanycovcnant,
condition or restriction contained in this Easement in any certain instance or on any particulaz
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Hill IIIIJill
03?Be4 5 a30afD6fl
DminaBeaaSCl.dw , Pages
occasion shall not be deemed a waiver of such right on any such future breach of the same or any
other covenant, condition or restriction.
Section 4.06 - Severability. Invalidation of any one or a portion of these covenants,
conditions and restrictions by judgment or court order shall in no way affect any other provisions
which shall remain in full force and effect.
Section 4.07 - Attorneys Pees. in the event action is instituted to enforco any of the
provisions containedin this Easement, the party prevailing in such action shall be entitled to recover
from the other party thereto reasonable attorneys' fees and costs of such suit as determined by the
court or by arbitration as part of the judgment.
Seciion 4.08 -Notices. Any notice to be given to Gxantar, or any other Burdened Property
Owner, Grantee or Easement Holder shall be in writing and shall bd deemed to have been properly
dolivered when directed to such addressee as follows;
1f to Grantor 50.905 Avenida Bermudas
La Quints, CA 92253
Any other owner To the business address of such Golf Property
of the Golf Property owner
Grantee Sedona Homes, Inc.
77-564 Country Club Dr, Suite 150-137
Palm Dosed, CA 92211
Easement Holder to the business address of such Easement Holder
Any party may change the address to which such communications are to be directed to it by
giving a written notice to the other parties in the matmer provided in this paragraph. Any notice
given pursuant to this paragraph shall be deemed to be delivered when addressed to the addressee as
set forth herein and;
(i) at the time a written notice by mail is deposited in the United States mails, postage
prepaid; or
(ii) the time any other written notice, including Facsimile, telegram, or other electronic
mail message, is personally delivered to the recipient or is delivered to a common
carrier for transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient,
Section 4.09 - Easements to Run with the Land, The easement rights granted in this
Easement and all rights and obligations pertaining to such oasemant rights shall run with the Golf
Property and the Real Property in accordance with Section 1468 of the California Civil Code and
shall inure to the benefit of the Real Property. The covenants, conditions and restrictions pertaining
I IIIIII IIIIII IIII IIIIIII III IIIII IIIII�I III IIII I'll IIII ea/seB esoee Rereea
or mapEuti.dw Pago 6
to the obligations to construct, manage, operate, control, maintain, repair, restore and replace me
Storm Drain Improvements within the Storm Drain Easement Areas shall run with title to the Real
Property in accordance with Section 1468 of the California Civil Code and shall inure to the benefit
of the Golf Property.
Section 4.10 - Terctilnology. Where the context requires, the masculine gander inclades the
feminine and neuter, and singular case plural,
Section .I 1-Captions. Captions used in this Easement are for information proposes only
and do not alter, modify or add to the terms of this easement.
Section 4.12 -Invalidity. If any term, covenant or condition of this Easement is determined
to be invalid, it will not affect the validity of the remaining tetras, covenants and conditions of this
$asement. If any portion of the Easement is held to be unenforceable, any enforceable portion
thereof and the remaining provisions shall continue in full force and effect,
Sectiofi
4,13
-Waiver,
Tho waiver of any breach of any
provision hereunder shall not be
deemed to be
a waiver of any proceeding
or subsequent breach
hereunder. No waiver shall be
binding unless
in writing
and signed by the
party making the waiver.
Section 4.14 -Governing Law. This Easement will be governed and interpreted pursuant to
the laws of the State of California. The Easement Holder shall perform all of its obligations under
the Easement in compliance with all applicable laws.
Section 4.15 • Mortgagee Protection, No breach of tiro covenants, conditions or restrictions
herein shall affect, impair, defeat or render invalid the lien or charge of any mortgage or deed oftrust
made in good faith and for value encumbering any portion of the Real Property or the Golf Property,
but all of said covenants, conditions and restrictions shall be binding upon and effective against any
owner whose title is derived through foreclosure or trastee=s sale, or otherwise, with respect to either
the Real Property or the Golf Property,
Section
416-Modification, The Easement may bemodified only inawritingsigned bythe
parties to the Easement, or their respective successor in interest.
IN
WITNESS WHEREOF, the parties have executed this instrument as of the day and year
first above written.
GRANTOR"
"GRANTEE"
KSL DESERT RESORTS,SEDGNA HOMES
a Delaware corporation a California corporation
aw
By: BYt
Daleci , President Lance,Alacano, President
I'flll �'I�II'll' �II�II' �I� IIIII III+I) III 'III I11) IN 03?B5�/200341BI B0fl
pminapBuel.dw Page 7
STATE OF CALIFpRNIA )
) SB
COUNTY OF RIVERSIDE )
in IA42,rj___. 2003, before me, BARBARA LARSH the undersigned notary public in and for said
state, personally appeared SCOTT M. DALECIO ~ persona)lyknown to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his authorized
capacity, and thatby his signature on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument,
WITNESS my hand and officia seal,
,( CfA
Signature of Notary
STATE tlF CALIFORNLI ).
}SS
COUNTY OF RIVERSIDE }
On I Q E o2__., 2003, before me, ,(I < (� ( K& , the undersigned
notary public in and for said state, personally appeared LANE ALACANO, personally known to me � OR
proved to me on the basia of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on instrument the person, or the entity upon behalf of which the person acted, executed the
instrument, 17
of£toial seal,
i 0 t}yaly KEL.I,YCpt.LIk�R�
.aP+ CgMM. M t2PUnza
m (� � "� p � NOTARY PUaLICCAIIf UNNIA 6)
��f"-�•p ,� � RWURSIUa GUUNIY ()
IIIIIIIIIIIIIII'IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII ea 080a p340NU�60R
brzina8a6a9Vl,dOc page 8
Under the
provisions
of Government Code 27361.7, I certify under
penalty
of perjury that
the notary
seal on the
document to which this statement is attached
reads as
follows;
Name of Notary;
Commission #; _ ' C� o ✓ 1
County Where Bond is Filed; /Z _ CA
(,��V �w Gu
State Where Bond is Filed; L�t!I
Date Commission Expires; /C r a'�__
Date:
Signature:
I IIIIII'�I�II�IIIIIIIIII �I�IIIIIIIII��I IIIIIiIII�II III B3?05200300, 00F
Under the provisions of Govemment Code 27361,7, I certify under penalty of perjury that
the notary seal on the document to which this statement is attached reads as follows:
Name of Notary;
Commission #;
County Where Bond is Filed;
State Where Bond is Filed;
Date Commission Expires; _ lA (0 U3
Date;
a3
Signature; _ l�� �� CAR
II�I�I'IIIII III IIII�I� �I� �IIII �IIIIII III III'll III III 03186�/Z68of9B �B0a