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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 Page 1 of B 123499H.1 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, Page 2 of 8 1234998,1 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 Page 3 of 8 1234998,1 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 1234998.1 134 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) P:�g� 6 of"fl �?iJ yuT.l a Dated: May _, 2017 LQR GOLF LLC ZIell � r 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) Name) cr,ue) Pn�c 7 of S 1294U9N.1 Dated: May .017 LQR GOLF LLC Bv: (Signature) (Print Nam (Tide) Dated: May _, 2017 LQR PROPERTY LLC Bv: (Signature) (Print Name) ]ts: (Title) Dated: May., 201 7 KSLR ASSET MANAGEMENT, LLC By: (Signature) (Print Name) Its: t l„sV'�i',��P� (Title) Pagt 7 of $ �'34ouN.l 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, emall4133i, mSirycoollls Date: 2017M 118713 07Wa By; (Signature) FRANKJ.SPEVACEK (Print Name) Its: CITY MANAGER (Title) Page 8 of 8 1234998.1 it d ..Ili'' 4 p met F it ` i tic 0 m4 _ — , .., „.�. 1 .,� gill �` � �, 5�11 �`. dt iIi! Io I'„ m �. ' f . I ..rl J • 7 Ir tim, o"o Peft 1. ki r 'me %Fe 1 ®.Pelf / milk 4 F � 1 , �$' File qq , ..� Ii. - .: N `-- e ft'— _ §h1110n N3 0 Nd 13 -wr 61N3MAOUdhl 30YNIY80 ONV 300160 3NUO MA0HN3S13 90-100-6 'ON IOVOW V F a l" c RECORDING REQUESTED BY )RANQ COAST THE ear 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 � IIII11IBIII IIII 1111111111111111111111111111111 M y U PA PA POOR NOOOR SMF MeO, — —I—+—.— P " ._L•�COPY IANO NrlwftycYAM 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 es/es02 sf4s Green 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 IIIIII IIIIII11111111411101111111Ili 111111111111 e3/65/a of e a Befl 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 uminagoRwil.dw Page 4 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