When recorded return to:
SunCor Development Company
3838 North Central Avenue
Suite 1500
Phoenix, Arizona 85012
Attention: Peggy Kirch
RECIPROCAL EASEMENT AGREEMENT WITH COVENANTS
AND RESTRICTIONS AFFECTING LAND
This RECIPROCAL EASEMENT AGREEMENT WITH COVENANTS AND RESTRICTIONS
AFFECTING LAND ("Agreement") is entered into as of the 19th day of December,
1996, by and among Sedona Golf Resort, L.C., an Arizona limited liability
company ("Project Developer"), UP Sedona, Inc., an Arizona corporation ("Resort
Owner"), and All Seasons Resorts, Inc., an Arizona corporation ("Health Club
Owner").
RECITALS
I. Simultaneously with the recording of this Agreement, Resort Owner is
purchasing from Project Developer, pursuant to that Real Estate Sales Agreement
dated March 28, 1996 ("Resort Owner Agreement"), the real property described on
Exhibit "A" attached hereto for the construction and operation of a luxury
resort hotel with a Mobil four-star rating ("Resort Parcel"). The Resort Parcel
contains approximately 7.5 acres of land and is part of a master-planned golf
and residential development known as Sedona Golf Resort.
A. Project Developer is the owner of a parcel of land adjacent to, and
to the east of, the Resort Parcel, and north of Ridge Trail Drive, as more
particularly described on Exhibit "B" attached hereto ("Project Developer
Parcel"). The Project Developer Parcel will share an entryway off Ridge Trail
Drive with the Resort Parcel, and Project Developer and Resort Owner desire to
grant certain cross-easements for ingress, egress and parking and for the
maintenance of curbcuts to provide for vehicular and pedestrian access and
certain cross-parking rights between the Resort Parcel and the Project Developer
Parcel.
EXHIBIT 10.2
B. Health Club Owner owns and operates an existing health club and
related facilities known as "The Ridge Spa and Racquet Club at Sedona Golf
Resort" on that parcel of land located adjacent to, and to the west of, the
Resort Parcel, and north of Ridge Trail Drive, as more particularly described on
Exhibit "C" attached hereto ("Health Club Parcel"). To accommodate the desires
of neighboring land owners regarding existing access points along the western
boundary of the Health Club Parcel, the Health Club Owner and Project Developer
desire to close such access points and provide alternate access to the Health
Club Parcel upon and across portions of the Resort Parcel.
C. Resort Owner desires to grant access to the Health Club Parcel upon
and across the Resort Parcel in exchange for access to and reciprocal easement
rights upon and across the Health Club Parcel. Likewise, the Health Club Owner
and the Project Developer desire to grant reciprocal ingress and egress
easements with respect to their respective parcels for the benefit of the Resort
Parcel.
NOW THEREFORE, for and in consideration of the easements, covenants and
restrictions contained in this Agreement, the sufficiency of which is hereby
acknowledged by each party, the parties do hereby agree as set forth below:
AGREEMENT
1. DEFINITIONS.
In addition to the defined terms set forth in the Recitals or elsewhere
in this Agreement, each of the following capitalized terms shall have the
following meaning:
1.1 "Easement Area Improvements" shall mean all improvements from
time to time comprising the Easement Areas, including without limitation
roadways, driveways, lighting, sidewalks, walkways, curbs, bumpers, traffic
control signs and other traffic control devices.
1.2 "Easement Areas" shall mean all land areas within any Parcel
improved from time to time with roadways, driveways, sidewalks, walkways and
other paved surfaces designed and intended by the respective Owner thereof for
vehicular and pedestrian ingress and egress.
1.3 "Grantee" shall mean an Owner who receives an easement
pursuant to this Agreement.
1.4 "Grantor" shall mean an Owner who grants an easement pursuant
to this Agreement.
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1.5 "Health Club Easement Areas" shall mean all Easement Areas
that may exist from time to time on the Health Club Parcel.
1.6 "Health Club Owner" shall mean All Seasons Resort, Inc., an
Arizona corporation, and each successor Owner of any portion of the Health Club
Parcel.
1.7 "Health Club Parcel" shall have the meaning set forth in
Recital C above.
1.8 "Improvement(s)" shall mean all land preparation and
excavation, buildings, outbuildings, structures, underground installations,
slope and grade alterations, lighting, roads, walkways, curbs, gutters, storm
drains, drainageways, utilities, driveways, parking areas, fences, screening
walls and barriers, retaining walls, stairs, decks, patio areas, wind breaks,
plantings, trees and shrubs, sidewalks, poles, signs, storage or display areas,
loading areas, docks, water retention areas, fountains, pools, spas, ponds and
other water features, recreational facilities, and all other structures, land
development or landscaping improvements of every type or nature.
1.9 "Owner" shall mean each of the parties to this Agreement and
each Owner of a fee simple interest in any Parcel, including, without
limitation, one who is buying such interest under a recorded contract, but
excluding others who hold such title merely as security. The term "O shall not
include a lessee or licensee. If fee simple title is vested of record in a
trustee named in a deed of trust recorded pursuant to Arizona Revised Statutes,
Section 33-801, et seq., then the trustor named in said deed of trust shall be
deemed the Owner. If fee simple title is vested in a trustee pursuant to a
subdivision trust agreement or similar trust, the beneficiary of any such trust
entitled to possession shall be deemed to be the Owner. An Owner shall include
any person who holds record title to a parcel in joint ownership with any other
person or holds an undivided fee interest.
1.10 "Parcel" shall mean all or any portion of the Health Club
Parcel, the Project Developer Parcel or the Resort Parcel.
1.11 "Parking Area" shall mean that portion of the Project
Developer Parcel outlined or otherwise designated on Exhibit "D-1" attached
hereto and described on Exhibit "D-2" attached hereto.
1.12 "Permittee" shall mean the tenants, subtenants, employees,
officers, agents, contractors, customers, invitees and licensees of each Owner
to the extent the same are designated by an Owner as Permittees entitled to the
benefits of this Agreement, and the employees, agents, contractors, customers,
invitees and licensees of each tenant or subtenant of an Owner who are
designated as Permittees under this Agreement.
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1.13 "Person" shall mean and refer to a natural person, a
corporation, a partnership, a limited liability company, a trust or any other
legal entity.
1.14 "Primary Access Drive" shall mean the main boulevard
entryway from Ridge Trail Drive to the Resort Parcel and Project Developer
Parcel as shown on Exhibit "D-1" attached hereto, the location of which may be
moved from time to time by Project Developer when it develops the Project
Developer Parcel, provided that any alteration to the Primary Access Drive must
be approved by the Owner of the Resort Parcel, which approval shall not be
unreasonably withheld, conditioned or delayed. Project Developer and the Owner
of the Resort Parcel are hereby authorized to execute amendments to this
Agreement with a revised Exhibit "D-1" attached showing the new location of the
Primary Access Drive.
1.15 "Prime Rate" means the prime commercial lending rate
announced by Bank One of Arizona (or any successor thereof) as its "prime rate",
as the same may be changed from time to time. If for any reason any such
institution shall at any time discontinue quoting or charging a "prime rate" in
the manner set forth above, then Project Developer, in the exercise of
reasonable judgment, may substitute another benchmark annual lending rate of
interest charged by major commercial banks in the Phoenix metropolitan area, and
the rate so determined shall thereafter be the Prime Rate as defined herein.
1.16 "Project Developer" shall mean Sedona Golf Resort, L.C., an
Arizona limited liability company, and each successor and assign who (i) owns
fee title to any portion of the Project Developer Parcel or any other portion of
the Sedona Golf Project, and (ii) is expressly named as successor to and
assignee of the rights of Sedona Golf Resort, L.C. under this Agreement in a
document executed and recorded by Sedona Golf Resort, L.C. (or a successor or
assignee thereof as defined in this Section).
1.17 "Project Developer Easement Areas" shall mean all Easement
Areas that may exist from time to time on the Project Developer Parcel, as may
be reduced pursuant to Section 4.9 below.
1.18 "Project Developer Parcel" shall have the meaning set forth
in Recital B above, as may be reduced pursuant to Section 4.9 below.
1.19 "Resort Easement Areas" shall mean all Easement Areas that
may exist from time to time on the Resort Parcel.
1.20 "Resort Owner" shall mean UP Sedona, Inc., an Arizona
corporation, and each successor Owner of any portion of the Resort Parcel.
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1.21 "Resort Owner Agreement" shall have the meaning set forth in
Recital A above.
1.22 "Resort Parcel" shall have the meaning set forth in Recital
A above.
1.23 "Sedona Golf Project" shall mean the real property depicted
on Exhibit "E" attached hereto.
2. COVENANTS TO RUN WITH THE LAND.
All restrictions, covenants and easements in this Agreement shall create
privity of contract and estate between each Owner to the extent the same benefit
or burden the Parcel owned by each such Owner as set forth in this Agreement,
and shall operate as covenants running with the lan By acquiring title to any
portion of a Parcel, each Owner shall be subject to this Agreement and shall be
deemed a party hereto who has agreed to all of the terms, covenants and
restrictions set forth herein to the extent the same benefit or burden the
Parcel owned by each such Owner, as set forth in this Agreement.
3. RESTRICTIONS ON USE.
3.1 Permitted Use Resort Parcel. Subject to Section 3.2, Project
Developer and Resort Owner agree Project Developer is conveying the Resort
Parcel to Resort Owner so that it can construct and operate a luxury resort
hotel with a Mobil four-star rating thereon with a maximum o keyed entries to
provide first-class lodging facilities to complement and support Project
Developer's development plans for the Sedona Golf Project. Accordingly, the
Resort Parcel shall be used only for the operation of a luxury resort hotel with
a Mobil four-star rating and a maximum of 225 keyed entries. Such use may
include convention and meeting facilities, boutique shops, lobby bar/lounge,
cocktail lounge, restaurant, hair salon, concierge and other amenities typically
operated as part of a luxury resort hotel with a Mobil four-star rating of the
type contemplated herein. The foregoing notwithstanding, all such uses on the
Resort Parcel, and the design and location thereof, shall be subject to the
prior written approval of Project Developer in each instance. In addition, each
Resort Owner shall not use, and shall not permit any tenant, subtenant or other
Person to use, any portion of the Resort Parcel for any purpose other than as
set forth above in this Section and approved in writing by Project Developer,
unless another purpose is specifically approved by Project Developer, in its
sole and absolute discretion, in a recorded amendment to this Agreement. Project
Developer may withhold such approval for any reason whatsoever.
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3.2 Restrictions on Use Resort Parcel. The Resort Parcel may be
used only for the purposes permitted by Section 3.1, subject to the following
restrictions:
3.2.1 The Resort Parcel shall not be used by anyone for any
purpose that will create a nuisance, including without limitation, (i) any
vibration, noise, sound or disturbance that is objectionable due to
intermittence, beat, frequency, shrillness, loudness or pulsating effect, (ii)
any lighting which is flashing or intermittent or not focused downward or away
from adjacent land (unless otherwise approved by Project Developer), (iii) any
emission of odor or noxious, caustic or corrosive gas or matter, whether toxic
or non-toxic, or (iv) any explosion or other damaging or dangerous firing,
detonation or activity, including the firing or detonation of ammunition or
explosives or the storage, display, sale or use of explosives or fireworks.
3.2.2 No Owner of the Resort Parcel shall use or permit the
use of the Resort Parcel in a manner which violates the common law or any law,
statute, ordinance, code, order, rule or regulation of any governmental
authorities having jurisdiction over the Resort Parcel.
3.2.3 No Owner of the Resort Parcel shall dispose or permit
the disposal of any waste, refuse or garbage generated on the Resort Parcel
except in a commercial-size solid waste container located on the Resort Parcel
in an area and with proper screening approved as provided in Article 5, which
shall be equipped with a metal lid, maintained in good mechanical condition,
emptied as frequently as reasonably necessary to prevent such container from
overflowing, and maintained in reasonably clean condition at all times. The
foregoing restriction shall not apply to garbage disposed of in a sanitary sewer
through customary garbage disposal/grinding equipment.
3.2.4 No Improvement shall be constructed or maintained on the
Resort Parcel by the Owner thereof or any lessee or other Person which exceeds
three (3) stories or a total of thirty (30) feet in height from finished grade.
Sections 3.2.1 and 3.2.3 shall not apply to Construction
Activities (as defined in Section 5.2) conducted in a reasonable manner and in
compliance with applicable statutes, ordinances and codes.
3.2.5 No Owner of the Resort Parcel shall use or permit the
use of the Resort Parcel by anyone for the development and/or operation of a pro
shop and/or for the sale of golf clubs, golf bags, golf balls, golf clothing or
other golfing paraphernalia or for the operation of any other use which competes
with any golf course and affiliated pro shop within the Sedona Golf Project, as
reasonably determined by Project Developer.
3.2.6 So long as the health spa and tennis facility located on
the Health Club Parcel is in operation and available for use by the Owners of
the Resort Parcel and open for membership and use by the general public, no
Owner of the Resort Parcel shall use or permit the use o the Resort Parcel by
anyone as a health club or related facilities available for membership or open
to the general public, provided that a health club and related facilities may be
constructed and operated as part of a resort hotel upon the Resort Parcel if use
of the same is restricted to guests and employees of such hotel, subject to
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approval by Project Developer of such health club and related facilities
pursuant to Section 3.1 above. In addition, provided that the Owner of the
Health Club Parcel is operating the health spa and tennis facilities thereon, no
clothing, bags, and other equipment, and paraphernalia for tennis, swimming or
other exercise activities conducted as part of said health spa and tennis
facilities, but only if and to the extent the same are being sold on the Health
Club Parcel in connection with such activities, shall be offered for sale in the
hotel located on the Resort Parcel. Notwithstanding any other provision in this
Agreement, this subsection 3.2.6 shall terminate upon the date that the health
spa and tennis facilities located on the Health Club Parcel are no longer in
operation and available for use by the Owners of the Resort Parcel, or is no
longer available for memberships and use by members or the general public.
3.3 Restriction on Use of Sedona Golf Project Name and Logo
Resort Parcel and Health Club Parcel. The name and/or logo used from time to
time for the Sedona Golf Project shall not be used on any portion of the Resort
Parcel or the Health Club Parcel, or in the operation or promotion of any
business conducted on either Parcel, without the prior written consent of
Project Developer in each instance, which consent may be withheld for any
reason. If Project Developer elects in its discretion to grant such consent, it
shall have the right to impose restrictions and conditions, including without
limitation a requirement that any use of the name and logo must comply with all
design and graphic standards established by Project Developer from time to time.
The foregoing notwithstanding, the Owner of the Resort Parcel may, without the
prior written consent of Project Developer, use the name and/or logo used from
time to time for the Sedona Golf Project, but only if and to the extent (i) the
same are used in a reasonable first-class manner for purposes reasonably related
to the promotion of a luxury resort hotel on the Resort Parcel, (ii) such use
does not give the impression that a Person other than Project Developer is the
primary developer of the Sedona Golf Project, and (iii) such use complies with
all design and graphic standards established by Project Developer from time to
time.
3.4 Enforcement of this Article. All of the restrictions and
obligations imposed by this Article may be enforced only by Project Developer,
except that the Health Club Owner shall have the right to enforce subsection
3.2.6.
4. EASEMENTS; CONSTRUCTION OF CERTAIN IMPROVEMENTS.
4.1 Grant of Non-Exclusive Easements for Ingress and Egress All
Parcels. Subject to Sections 4.6, 4.7, 4.8 or 4.9, each Owner, as a Grantor,
hereby grants to every other Owner, as Grantee, for the benefit of each Grantee
and their respective Permittees, a non-exclusive easeme upon, over and across
all Easement Areas of each Grantor, for vehicular and pedestrian ingress and
egress to and from any portion of any Parcel to another Parcel, and to and from
all public streets and roads adjacent to a Parcel if access points are available
from such Parcel, including, without limitation, ingress and egress for
delivery, service and emergency trucks and vehicles.
4.2 Grant of Non-Exclusive Easements for Parking Resort Parcel
and Project Developer Parcel Only. Subject to Sections 4.6, 4.7, 4.8, and 4.9:
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4.2.1 Each Owner of the Resort Parcel, as a Grantor, hereby
grants to every other Owner of the Project Developer Parcel, as Grantee, for the
benefit of each Grantee and their respective Permittees, a non-exclusive
easement upon and across all parking spaces and parking areas located from time
to time on the Resort Parcel; and
4.2.2 Each Owner of the Project Developer Parcel, including the
Parking Area, as Grantor, hereby grants to each Owner of the Resort Parcel, as
Grantee, for the benefit of each Grantee and their respective Permittees, a
non-exclusive easement for parking upon and across all parking spaces or parking
areas located from time to time on the Project Developer Parcel, including the
Parking Area, subject to Section 4.9 below.
The foregoing notwithstanding, each Grantor shall have the right
to (i) designate certain portions of the Parking Areas on its Parcel for
handicapped spaces, and for use by emergency vehicles and service and delivery
vehicles, and (ii) prohibit the employees of a Grantee or tenants or subtenants
of a Grantee from parking on the servient tenement of such Grantor.
4.3 Easement for Landscaping Resort Parcel. Each Owner of the
Resort Parcel, as Grantor, hereby grants to the Sedona Golf Resort Community
Association, and its successors and assigns, an easement over, under, upon and
across the south 25 feet of the Resort Parcel for the purp of maintaining and
replacing all landscaping, irrigation systems and related Improvements to be
constructed by the Owner of the Resort Parcel pursuant to Section 5.2 below,
provided that any driveways or parking areas approved pursuant to Article 5
which are located within said easement area shall be permitted on said easement
area unless and until the same are converted to landscaped areas after approval
of the plans and specifications therefor pursuant to Article 5. The Sedona Golf
Resort Homeowner's Association, and each successor and assign with respect to
the easements rights set forth in this Section 4.3, shall constitute third-party
beneficiaries of this provision.
4.4 Drainage Easement Resort Parcel. Each Owner of the Resort
Parcel, as Grantor, hereby grants to each Owner of the Health Club Parcel, an
easement for the drainage and flow of storm water from the Health Club Parcel
upon, over and across the Resort Parcel, subject to the following limitations
and restrictions:
4.4.1 All drainage plans and specifications for the Health
Club Parcel must be approved by the Owner of the Resort Parcel, which approval
shall not be unreasonably withheld or delayed, and must comply with the Storm
Water Pollution Prevention Plan of Yavapai County, and must be approved by
Yavapai County.
4.4.2 The point at which storm water will be allowed to flow
from the Health Club Parcel onto the Resort Parcel must be approved by the Owner
of the Resort Parcel and the Project Developer.
4.4.3 The Owner of the Resort Parcel shall have the right to
reasonably determine those areas upon the Resort Parcel over which storm water
from the Health Club Parcel will flow, and may relocate such areas from time to
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time, subject to the rights of Project Developer in Section 4.5 below, and
further subject to those requirements of Yavapai County applicable to, and
controlling drainage to, over, upon and from, the Resort Parcel.
4.5 Drainage Easement Project Developer Parcel. Each Owner of the
Project Developer Parcel, as Grantor, hereby grants to each Owner of the Resort
Parcel, as Grantee, an easement for the drainage and flow of storm water from
the Resort Parcel upon, over and across the Project Developer Parcel to a
drainage pipe under Highway 179 on the eastern boundary of the Project Developer
Parcel, subject to the following limitations and restrictions:
4.5.1 All drainage plans and specifications for the Resort
Parcel must be approved by Project Developer pursuant to Article 5, must comply
with the Storm Water Pollution Prevention Plan of Yavapai County, and must be
approved by Yavapai County.
4.5.2 The point at which storm water will be allowed to flow
from the Resort Parcel onto the Project Developer Parcel must be approved by
Project Developer.
4.5.3 The Owner of the Project Developer Parcel shall have
the right to reasonably determine those areas upon the Project Developer Parcel
over which storm water from the Resort Parcel will flow, and may relocate such
areas from time to time, subject to those requirements of Yavapai County
applicable to, and controlling drainage to, over, upon and from, the Project
Developer Parcel. The foregoing notwithstanding, if and to the extent required
by Yavapai County, the Owner of the Project Developer Parcel will be obligated
to design and maintain on the Project Developer Parcel detention facilities
sufficient to attenuate the peak flows from two-year and five-year storm events
due to the development of the Resort Parcel and the Project Developer Parcel.
4.6 Limitation on Exercise of Easement Rights; Reservation of
Rights. No Grantee or its Permittees shall have the right to exercise the
easement rights granted under Sections 4.1, 4.2, 4.3, 4.4 or 4.5 in a manner
that would materially interfere with the business operations of Grantor or its
Permittees. The Easement Areas and/or the parking areas referred to in Section
4.2 may be closed from time to time for reasonable periods only (i) for the
purpose of cleaning, maintenance, repair, repaving or resurfacing thereof, or
(ii) for the development, construction, maintenance or repair of Improvements on
a servient tenement, or (iii) to prevent any party not otherwise entitled to use
the same pursuant to this Agreement from obtaining prescriptive rights thereon,
or (iv) as provided in subsection 8.1.4. Subject only to the foregoing
limitations, to permit the full exercise of the easements granted in Sections
4.1 and 4.2, there shall at all times be maintained, for the duration of the
easement rights herein granted:
4.6.1 at least one (1) open access point at least
twenty-four (24) feet in width along the common boundary between the Resort
Parcel and the Health Club Parcel; and
4.6.2 at least one (1) open access point at least
twenty-four (24) feet in width along the common boundary between the Resort
Parcel and the Project Developer Parcel.
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All of the foregoing must be approved as provided in Article 5.
No Owner shall construct, or cause or permit to be constructed, any barriers
that prevent free and open ingress and egress within said 24-foot accessways.
Each Owner of the Project Developer Parcel shall have the right to establish or
close curbcuts along Highway 179 as such Owner determines in its sole
discretion, except the entrance for Ridge Trail Drive.
4.7 Duration of Easements. Except as may otherwise be provided in
this Agreement, all easements shall continue until this Article 4 is amended or
this Agreement is terminated pursuant to Article 7 below.
4.8 No Charges or Fees. No one shall be obligated to pay any fee
or charge for the exercise of the easement rights set forth in this Agreement.
4.9 Reduction of Project Developer Easement Areas and Parking
Areas; Termination of Easements. Sections 4.1, 4.2 and any other provision in
this Agreement to the contrary notwithstanding, the Project Developer Parcel,
the Project Developer Easement Areas and/or the parking area subject to the
easements granted in Section 4.2 (except for the minimum number of spaces to be
maintained as provided below) may be reduced by Project Developer from time to
time as its development plans are finalized and implemented for the Project
Developer Parcel, as Project Developer may determine in its sole discretion.
Upon exercising such rights, all easements upon and across the Project Developer
Parcel as granted in Sections 4.1 and 4.2 above shall thereupon be deemed
terminated as to those portions of the Project Developer Parcel so designated
for exclusion by Project Developer from time to time, subject to the following
rights, limitations and conditions:
4.9.1 The Project Developer Parcel and/or Project Developer
Easement Areas may be reduced by Project Developer, in its sole discretion, to
an extent that the other Owners and their Permittees have available for ingress
and egress only that portion of the Primary Access Drive located on the Project
Developer Parcel.
4.9.2 The Project Developer Parcel and/or the parking areas
subject to the easements granted in Section 4.2.2 may be reduced by Project
Developer, in its sole discretion, to an extent that all portions thereof are
excluded as set forth above, provided that so long as Yavapai County requires,
for parking code purposes, that the Resort Parcel needs to have available for
its use the number of spaces in the Parking Area (58 spaces) or a fewer number
of spaces, then the Owners of the Resort Parcel and their respective Permittees
shall always have available on the Project Developer Parcel, for parking
purposes pursuant to Section 4.2.2, the number of spaces (not to exceed 58
spaces) necessary to satisfy the parking code requirements of Yavapai County.
The Owner of the Project Developer Parcel may designate the Parking Area, or
other portions of the Project Developer Parcel improved for such purposes, if
the location thereof is approved by Yavapai County as sufficient to satisfy its
parking requirements.
4.9.3 The election to reduce the size of the Project
Developer Easement Areas or such parking areas for purposes of this Agreement
and to terminate the easement rights set forth in Sections 4.1 or 4.2 with
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respect thereto, shall become effective upon the recording of a dul executed and
acknowledged notice of Project Developer's election to do so. Project Developer
may record one or more such notices from time to time as plans for the Project
Developer Parcel are finalized from time to time, subject to the limitations in
Sections 4.9.1 and 4.9.2 above.
4.9.4 If pursuant to Section 4.9.1 Project Developer elects
to reduce the Project Developer Easement Areas available for ingress and egress
to an extent that only the portion of the Primary Access Drive located on the
Project Developer Parcel is available for ingress and egress, then the Owner of
the Resort Parcel may, in its discretion, elect to terminate the ingress and
egress easements granted pursuant to Section 4.1 upon and across the Resort
Parcel to an extent that the Owners of the Project Developer Parcel and their
respective Permittees have available for ingress and egress pursuant to Section
4.1 only that portion of the Primary Access Drive located on the Resort Parcel.
4.9.5 If pursuant to Section 4.9.2 Project Developer elects
to reduce the number of parking spaces available for use on the Project
Developer Parcel, then the Owner of the Resort Parcel may, in its discretion,
reduce the number of spaces available for parking on the Resort Parcel, pursuant
to Section 4.2.1, to an identical number of spaces so designated by Project
Developer, so long as such spaces designated by the Owner of the Resort Parcel
are located in those parking areas located adjacent to the Project Developer
Parcel.
4.9.6 The election by the Owner of the Resort Parcel to
exercise its rights under Sections 4.9.4 and/or 4.9.5 shall become effective
upon the recording of a duly executed and acknowledged notice of such Owner's
election to do so from time to time, subject to the limitation in Sections 4.9.4
and 4.9.5 above.
4.10 Resort Owner to Construct Primary Access Drive and Parking
Area. The Owner of the Resort Parcel shall be responsible for constructing all
Improvements comprising the Primary Access Drive and the Parking Area at its
expense, subject to a partial reimbursement from the Owner the Project Developer
Parcel as hereafter provided. All such Improvements shall be constructed in
accordance with plans and specifications approved by Project Developer pursuant
to Article 5 below, and shall be completed free and clear of liens in a good
workmanlike manner in compliance with applicable statutes, codes and ordinances.
The Owner of the Resort Parcel is not obligated to commence and complete
construction of said Improvements by a given date, but once construction
activities of any kind have been commenced with respect to any portion of said
Improvements, such Owner shall thereafter be obligated to proceed diligently to
complete the Primary Access Drive and/or Parking Area, as the case may be, in
the manner prescribed by this Section. Upon completion of such Improvements and
after an inspection thereof by Project Developer or its agents or contractors to
confirm that the Improvements have been constructed in the manner prescribed
this Section, the Owner of the Project Developer Parcel shall reimburse Resort
Owner for 50% of the reasonable cost of completing the Primary Access Drive and
other Improvements connecting the same to the Parking Area, as set forth in the
separate agreement to be entered into by the parties as set forth below in this
Section. Such reimbursement shall be paid to the Owner of the Resort Parcel
within 30 days after such Owner submits to the Project Developer the total cost
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thereof listed in reasonable detail, together with lien waivers for all work
performed on the Project Developer Parcel. If the Owner of the Project Developer
Parcel fails to pay such amount within said 30-day period, the amount due shall
thereafter bear interest at a variable rate per annum equal to three (3)
percentage points over the Prime Rate. This provision shall not preclude Resort
Owner from seeking relief under Article 8 below. If the Owner of the Resort
Parcel constructs the Parking Area as herein provided, the cost of the Parking
Area shall be paid by such Owner, and the Owner of the Project Developer Parcel
will have no obligation to pay any portion of such cost. After plans and
specifications are approved pursuant to Article 5, and when the Owner of the
Resort Parcel is ready to commence construction, the Owner of the Resort Parcel
and the Owner of the Project Developer Parcel shall thereafter act reasonably
and in good faith to negotiate and execute a separate agreement which sets forth
in reasonable detail the elements of the proposed construction and the types of
costs to be incurred, as well as cost estimates for labor and materials, and for
design, engineering, surveying and permit costs, directly related to the
proposed Improvements comprising the Primary Access Drive. Each Owner of the
Project Developer Parcel hereby grants to the Owner of the Resort Parcel and its
Permittees a non-exclusive easement upon, over, under and across those portions
of the Project Developer Parcel necessary, in the reasonable judgment of such
Owner, to complete construction of the Primary Access Drive and the Parking
Area.
4.11 Project Developer's Right to Construct Certain Easement
Areas. Project Developer and Resort Owner acknowledge that although Resort Owner
is obligated to construct the Parking Area and the Primary Access Drive pursuant
to Section 4.10, Project Developer has not imposed a dat by which said
Improvements must be completed. Accordingly, since Project Developer and its
Permittees may require the use of the Primary Access Drive and/or the Parking
Area before the Owner of the Resort Parcel has elected to construct the same,
Project Developer shall have the right, but not the obligation, to construct or
install all or a portion of the Improvements comprising the Primary Access Drive
and/or the Parking Area (and the portion or all of such Improvements Project
Developer elects to construct will be referred to herein as "Parking and Access
Improvements"), subject to the following:
4.11.1 The right of Project Developer to construct a
specific portion of the Parking and Access Improvements may not be exercised
after Resort Owner has actually commenced on-site construction of said portion,
but only so long as Resort Owner diligently proceeds to complete said portion of
the Parking and Access Improvements pursuant to the requirements of Section
4.10.
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4.11.2 Unless Section 4.11.1 above applies, Project
Developer shall have the right at any time to notify the Owner of the Resort
Parcel that Project Developer elects to construct the Parking and Access
Improvements by delivering written notice of its intention to do so to such
Owner, together with plans and specifications for the portion thereof Project
Developer intends to construct. Upon giving such notice, the rights of Project
Developer in this Section 4.11.2 shall prevail over any rights of the Owner of
the Resort Parcel in Section 4.10 to construct such Parking and Access
Improvements. The Resort Owner shall have the right to review and approve said
plans and specifications within thirty (30) days after it receives the same,
which approval shall not be unreasonably withheld, conditioned or delayed,
provided that (i) Project Developer and Resort Owner agree that the portion of
the Parking and Access Improvements to be constructed must generally conform to
the layout shown on the preliminary site plan for the Resort Parcel attached
hereto as Exhibit "D-1", and (ii) the Resort Owner's failure to approve or
disapprove such plans and specifications within said 30-day period shall be
deemed approval thereof. The Resort Owner shall provide its objections to such
plans and specifications in reasonable detail within said 30-day period, and the
parties shall thereafter act reasonably and in good faith to (i) finalize said
plans and specifications as soon as reasonably possible thereafter, and to (ii)
negotiate and execute a separate agreement which sets forth in reasonable detail
the elements of the proposed construction and the types of costs to be incurred,
as well as cost estimates for labor and materials, and for design, engineering,
surveying and permit costs, related to the proposed Improvements comprising the
Primary Access Drive.
4.11.3 After the proposed plans and specifications are
approved or deemed approved as provided in Section 4.11.2 above, Project
Developer shall have the right to construct and complete the Parking and Access
Improvements covered by the approved plans and specifications and shall do so
free and clear of liens in a good and workmanlike manner in compliance with
applicable statutes, codes and ordinances and the approved plans and
specifications. Upon completion, Resort Owner or the current Owner of the Resort
Parcel shall reimburse Project Developer for fifty percent (50%) of the
reasonable costs of completing the Primary Access Drive and other Improvements
connecting the same to the Parking Area, as set forth in the separate agreement
to be entered into by the parties as provided in Section 4.11. Such
reimbursement shall be paid to Project Developer within thirty (30) days after
Project Developer submits the total costs thereof listed in reasonable detail,
and provides evidence of lien waivers for the work performed on the Resort
Parcel. If the Owner of the Resort Parcel fails to pay such amount within said
30-day period, the amount due shall bear interest at a variable rate per annum
equal to three (3) percentage points over the Prime Rate. This provision shall
not preclude Project Developer from seeking relief under Article 8 below. If
Project Developer elects to construct the Parking Area as herein provided, the
cost of the Parking Area will be paid by Project Developer.
4.11.4 Each Owner of the Resort Parcel hereby grants to
Project Developer and its Permittees a non-exclusive easement upon, over, under
and across those portions of the Resort Parcel necessary, in the reasonable
judgment of Project Developer, to complete construction of the Parking and
Access Improvements.
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4.12 Representations and Warranties All Parcels. Each Owner
executing this Agreement represents and warrants, with respect to its Parcel
described herein, that (i) such Owner holds fee title to such Parcel and has
full right, power and authority to enter into and record this Agreement against
its Parcel, and (ii) upon recording this Agreement, this Agreement shall impose
all covenants, easements, liens and restrictions set forth in this Agreement
against the fee title of such Owner to the extent provided in this Agreement,
and shall be superior to all liens, encumbrances and other matters of record (or
the same shall be made subordinate to this Agreement pursuant to a subordination
agreement reasonably acceptable to the Owners of the other Parcels). In the
event of a breach of this Section by any Owner, the Owners not in breach of this
Section shall be entitled, in addition to other rights and remedies they may
have under Article 8, to close off the Easement Areas on the Parcel of the
non-breaching Owner during any period such breach prevents an Owner with a
dominant tenement from utilizing the servient tenement of the breaching Owner or
otherwise utilizing and enjoying the rights and benefits granted to such Owner
in this Agreement.
5. CONSTRUCTION AND REGULATION OF IMPROVEMENTS ON RESORT PARCEL.
5.1 Architectural Control.
5.1.1 No Improvements shall be constructed, erected, placed,
altered, maintained or permitted to remain on or within the Resort Parcel until
plans and specifications for all such Improvements, including a site plan and
drainage plans, are approved by Project Developer as hereafter provided. The
term "Improvements" as used in this Section 5.1 shall not include any signs,
lights, structures and improvements constructed within a building and not
visible from the exterior of such building.
5.1.2 All plans and specifications for Improvements,
including a site plan and drainage plans, shall first be submitted to Project
Developer, who shall review the same to determine whether the architectural
design, style, quality, materials, colors and layout of each building and the
other Improvements, including without limitation, signs, lighting, driveways,
medians, sidewalks and landscaping, and the site plan and drainage plans, are
compatible with the present or intended use of adjacent portions of the Sedona
Golf Project. Project Developer agrees that its approval shall not be
unreasonably withheld; however, Project Developer shall have at least forty-five
(45) days after receipt of all plans and specifications to make its decision
with respect thereto, provided that Project Developer shall have 30 days to make
decisions on plans and specifications for minor changes to previously approved
plans and specifications or for review of initial plans and specifications for
minor construction projects, as reasonably determined by Project Developer. Any
action not expressly approved in writing by Project Developer shall be deemed
disapproved. However, if Project Developer fails to respond within such 30-day
or 45-day period, as the case may be, and also fails to do so within ten days
after it receives a written request for a decision given after the applicable
time period expires by an Owner seeking approval, then such failure to respond
shall constitute Project Developer's approval of the requested matter, except
that all Improvements must nevertheless comply with all applicable laws, codes,
rules and regulations of all governmental authorities.
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5.1.3 The Resort Parcel shall not be subdivided, by fee
title conveyance, ground lease or otherwise, without the prior written consent
of Project Developer, provided that a horizontal property regime may be
establlished to convert hotel rooms or units into condominium unit so long as
the Resort Parcel continues to be operated in the manner permitted by Section
3.1.
5.1.4 The foregoing notwithstanding, Project Developer, or
its assignee as hereafter provided, may establish from time to time development
guidelines with regard to the architectural design, style, quality, materials,
colors and layout of each building and other Improvements on the Resort Parcel,
which shall apply to all Improvements for which plans and specifications have
not yet been approved as provided in this Section 5.1.
5.1.5 Project Developer shall have the right to assign,
separate from any other rights and benefits of the Project Developer set forth
in this Agreement, any or all of its rights and benefits set forth in this
Article 5 to the Sedona Golf Resort Community Association and/o its governing
architectural committee, or a similar committee or entity designated by Project
Developer in the instrument assigning such rights and benefits, in which event
each reference in this Article 5 to "Project Developer" shall be deemed to refer
to each such assignee.
5.1.6 Resort Owner agrees that the terms of this Article 5
and other terms of this Agreement are a material inducement for Project
Developer's conveyance of the Resort Parcel to Resort Owner.
5.2 Construction Requirements and Activities - Resort Parcel and
Project Developer Parcel. No construction, alteration, remodeling, rebuilding or
repair work on the Project Developer Parcel, the Resort Parcel or within the
Primary Access Drive or the Parking Area ("Construction Activity" or
"Construction Activities") shall be undertaken by the Owner of the Project
Developer Parcel or the Owner of the Resort Parcel except in compliance with,
and each such Owner shall be responsible for complying or causing compliance
with, the following:
5.2.1 Once any Construction Activity is commenced by such
Owner, the same shall be diligently pursued to completion in accordance with all
plans and specifications approved pursuant to, and all other requirements set
forth in, this Article 5 and in Sections 4.10 and 4.11.
5.2.2 All Construction Activities shall be performed in a
good and workmanlike manner using first-class construction and building and
landscaping materials, and shall be in conformity with this Agreement and all
applicable laws, statutes, codes, ordinances, rules and regulations of any
governmental authority having jurisdiction over the Construction Activities.
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5.2.3 All dust generated from any Construction Activities
shall be controlled by watering down the construction site, and any sandblasting
activities shall be restricted to the water-type method. If trucks or other
construction vehicles entering and leaving such Owner's Parcel and/or the
Primary Access Drive or Parking Area track mud or dust onto the Easement Areas
of an Owner governed by this Section 5.2, or on public streets or on private
streets within the Sedona Golf Project, such Owner shall be responsible at its
expense for cleaning and removing dust and mud on a daily basis.
5.2.4 No roads, driveways, sidewalks or other rights-of-way
within or adjacent to the Sedona Golf Project shall be unreasonably obstructed
or disturbed with machinery, equipment or personnel used in connection with any
Construction Activities.
5.2.5 All Construction Activities shall be performed on the
Resort Parcel or within the Primary Access Drive and/or the Parking Area, as the
case may be, in a manner which minimizes impact on the natural terrain and
vegetation, and shall in any event be performed, to the greatest extent
reasonably possible, in a manner which protects existing trees, cacti and
yuccas. If Resort Owner and Project Developer reasonably determine that
relocation of any trees, cacti or yuccas is necessary and the same are
salvageable, Resort Owner shall relocate the same, or any other vegetation, to
appropriate alternative locations on the Resort Parcel or, if relocation thereon
is not practicable, and Project Developer so directs, to the Project Developer
Parcel, or the same may be used for common area landscaping within the Sedona
Golf Project. Resort Owner and its Permittees shall keep Project Developer
advised of any plans to relocate vegetation on the Resort Parcel, and shall
provide reasonable prior notice of their intention to make any vegetation
available to Project Developer. However, Project Developer shall be under no
obligation to accept such vegetation and if Project Developer elects not to
accept the same, Resort Owner or its Permittees shall cause the same to be
removed and disposed of at their expense, subject to Project Developer's right
to reasonably determine whether relocation is appropriate.
5.2.6 All Construction Activities and all Improvements shall
be constructed and completed in accordance with the Storm Water Pollution
Prevention Plan of Yavapai County. Each Owner shall cause its subcontractors to
comply with said Plan, and shall cause a copy of said Pla to be included in all
construction contracts between such Owner and its contractors and subcontractors
for all Construction Activities.
5.2.7 On or before the opening of the Improvements on the
Resort Parcel for business, Resort Owner shall install, or cause to be
installed, at its expense, all landscaping and related irrigation systems within
the landscape easement area referred to in Section 4.3 above.
5.3 Repair of Damage. If any damage to real or personal property
occurs within or adjacent to the Sedona Golf Project not owned by an Owner
governed by Section 5.2 which results from, or is connected with, any
Construction Activities being performed by or at the request of the of the
Resort Parcel ("non-performing Owner" for purposes of this Section only), then
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upon written notice from the other Owner governed by Section 5.2 ("enforcing
Owner"), the non-performing Owner shall have ten (10) calendar days thereafter
in which to commence to repair such damage and restore the damaged property to
its condition immediately prior to such damage, and shall thereafter diligently
pursue such repairs to completion. If the non-performing Owner fails to commence
the repair of the damage within said ten-day period, or to pursue diligently
such repairs thereafter, the enforcing Owner shall have the right to repair the
damage and charge the non-performing Owner the total cost thereof, plus interest
thereon at a variable rate per annum equal to three (3) percentage points over
the Prime Rate from the date each such cost is incurred until paid, and a
construction fee equal to the greater of $1,000.00 or fifteen percent (15%) of
the cost of said repairs. This Section shall not preclude the enforcing Owner
from seeking relief under any provisions of Article 8 below.
5.4 Enforcement of this Article. The restrictions, rights and
obligations imposed by (i) Section 5.1 may be enforced only by Project
Developer, and (ii) Sections 5.2 and 5.3 may be enforced only by the Owner of
the Project Developer Parcel and the Owner of the Resort Parcel.
6. MAINTENANCE OBLIGATIONS.
6.1 Maintenance Duties. The Owner of the Resort Parcel shall,
with respect to all Resort Owner Easement Areas and all other Improvements on
the Resort Parcel, and the Owner of the Project Developer Parcel shall, with
respect to all Project Developer Easement Areas, be responsib for complying or
causing compliance with the following covenants and restrictions:
6.1.1 Any business conducted on such Parcels shall be
carried out in a first class, clean and orderly manner.
6.1.2 Maintaining, repairing and replacing its respective
Easement Areas, including all paving, curbs, bumpers, walkways, directional
signs, lights, traffic control signs, markers and lines which are a part
thereof, in good condition and repair.
6.1.3 Removing all paper, mud, sand, debris, filth and
refuse and sweeping all areas outside of buildings and around trash dumpsters to
the extent reasonably necessary to keep such areas in a clean and orderly
condition.
6.1.4 Maintaining, mowing, weeding, trimming and watering
any landscaped areas, and making all replacements of such landscaping, as may be
necessary to maintain an attractive appearance and/or to comply with the
requirements of Yavapai County.
6.1.5 Maintaining or causing to be maintained all portions
of buildings, fences, walls (including retaining walls) and structures on those
portions of its Parcel governed by this Section, including signs located
thereon, in good order, condition and repair.
6.1.6 Promptly removing all graffiti or other similar
markings from all perimeter or other walls, exterior building walls and other
exterior surfaces, paved areas and other exterior portions of any Improvements
on those portions of its Parcel governed by this Section.
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6.2 Failure to Maintain. If the Owner of the Resort Parcel
fails to perform, or cause to be performed, its duties under Section 6.1, then
Project Developer may do so after giving at least fifteen (15) days written
notice specifying the basis for claiming non-performance, unless non-performing
Owner begins to satisfy the maintenance requirements within said 15-day period
and thereafter diligently pursues the same to completion. Project Developer
shall be entitled to reimbursement for all costs incurred in curing the default,
which amount shall be reimbursed by the non-performing Owner to Project
Developer within thirty (30) days after demand therefor, after which the amount
due shall bear interest at a variable rate per annum equal to three (3)
percentage points over the Prime Rate. This Section shall not preclude Project
Developer from seeking relief under any of the provisions of Article 8 below.
6.3 Enforcement of this Article. The restrictions and obligations
imposed by this Article may be enforced as provided in Article 8 only by Project
Developer and/or the respective Owners of the Resort Parcel and the Project
Developer Parcel.
7. TERM; MODIFICATION OR TERMINATION.
7.1 Term. Subject to Section 7.2, this Agreement shall commence
with the recording hereof and shall continue in full force and effect until
December 31, 2021, after which this Agreement, as may be amended from time to
time, shall be automatically extended for successive periods five (5) years
each, unless earlier terminated as provided in Section 7.2 below.
7.2 Modification or Termination. This Agreement, or any provision
hereof, may be terminated, modified or amended by the terms of a recorded
document executed by all Owners, provided that (i) Sections 1.14 and 4.9 above
shall prevail over this Section 7 and this Agreement may be amended by the Owner
or Owners referred to in said Sections for the limited purposes set forth
therein, and (ii) Article 3 (except subsection 3.2.6), Sections 4.2, 4.10 and
4.11, and Article 5 may be terminated, modified or amended by the terms of a
recorded document executed only by Project Developer and the Owners of the
Resort Parcel.
8. ENFORCEMENT.
8.1 Defaults and Remedies. In addition to the remedies set forth
in Sections 5.3 and 6.2 above, in the event of any breach, default,
non-compliance, violation or failure to perform or satisfy any of the covenants,
restrictions and easements contained in this Agreement by an Own their
respective Permittees (collectively referred to herein as a "default"), and the
default is not cured within fifteen (15) days after written notice describing
the default as given to such Owner ("defaulting Owner") by another Owner
entitled to enforce the same under the terms of this Agreement ("enforcing
Owner") or if such default is not reasonably capable of being cured within such
15-day period, then if the defaulting Owner has not commenced to cure the
default promptly after such notice is given and has not thereafter diligently
continued to prosecute such cure to completion, then the enforcing Owner may
enforce any one or more of the following rights or remedies in this Section, or
any other rights or remedies available at law or in equity, whether or not set
forth in this Agreement; all such rights and remedies shall be cumulative and
not mutually exclusive.
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8.1.1 Damages. The enforcing Owner may bring a suit for
damages arising from or with respect to any such default.
8.1.2 Declaratory Relief. The enforcing Owner may bring suit
for declaratory relief to determine the enforceability of any of the provisions
of this Agreement.
8.1.3 Injunctive Relief; Specific Performance. It is
recognized that a default under this Agreement may cause material injury or
damage not compensable by an award of money damages and that the enforcing Owner
shall be entitled to bring an action in equity or otherwise fo specific
performance to enforce compliance with this Agreement, or for any injunctive
relief to enjoin the continuance of any default or to prevent a default.
8.1.4 Suspension of Easement Rights. If the defaulting Owner
has breached the provisions of Section 4.12 and the enforcing Owner(s) is an
Owner of a dominant tenement benefitting from easement rights that are
materially and adversely affected as a result of such breach, then each such
enforcing Owner may restrict or prevent the defaulting Owner and its Permittees
from exercising easement rights upon, over and across the Parcel of such
enforcing Owner, as a servient tenement, unless and until the default is cured.
8.2 Waiver. No waiver by any Owner of a breach of this Agreement
and no delay or failure to enforce this Agreement shall be construed or held to
be a waiver of any preceding or succeeding breach of the same by an Owner. No
waiver shall be implied from any Owner's failure to ta any action on account of
such default, and no express waiver shall affect a breach other than as
specified in said waiver. The consent or approval by an Owner to or of any
action shall not be deemed to waive or render unnecessary any Owner's consent to
or approval of any subsequent similar acts.
8.3 Costs of Enforcement. If any legal or equitable action or
proceeding is instituted to enforce any provision of this Agreement, the party
prevailing in such action shall be entitled to recover from the non-prevailing
party all of its costs, including court costs and reasonab attorneys' fees and
expenses, as determined by the Court and not the jury.
8.4 Rights of Lenders. No breach of any provision of this
Agreement shall defeat or render invalid the lien of any mortgage or similar
instrument securing a loan made in good faith and for value with respect to the
development or permanent financing or refinancing of any portio any Parcel or
any Improvements thereon; provided that all provisions of this Agreement shall
be binding upon and effective against any subsequent Owner whose title is
acquired by foreclosure (or by deed in lieu thereof), or otherwise acquired
pursuant to such lien rights.
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9. INDEMNIFICATION AND INSURANCE.
9.1 Indemnification.
9.1.1 Each Owner shall defend, indemnify and hold harmless
each of the other Owners and their respective officers, shareholders, directors,
partners, members, managers, agents and employees, from and against all claims,
liens, liabilities and expenses (including reasonable attorneys' fees and costs)
arising from liens imposed or personal injury, death or property damage arising
out of or connected with or resulting from the use of the easement rights
granted in this Agreement, or any Construction Activities undertaken, by the
indemnifying Owner or their respective Permittees.
9.1.2 Each Owner of the Health Club Parcel and the Resort
Parcel acknowledge that golfing activities are an essential part of the Sedona
Golf Project and hereby (i) waives and releases any claims or causes of action
of any kind each such Owner may have against the Project Developer and/or the
Sedona Golf Resort Community Association arising in any way from damages caused
by golf balls entering the Parcel of such Owner, and (ii) agrees to defend,
indemnify and hold harmless Project Developer and the Sedona Golf Resort
Community Association from and against any liabilities, obligations, damages,
claims, causes of action, costs, expenses and fees (including reasonable
attorneys' fees and costs) arising in any way from golf balls entering such
indemnifying Owner's Parcel.
9.2 Liability Insurance. Each Owner shall procure and maintain
public liability and property damage insurance affording coverage for claims for
personal injury, death or property damage occurring in, on or about such Owner's
Parcel and the Easement Areas used by such Owner and Permittees and for all
obligations undertaken by such Owner under Section 9.1 above. Each policy of
insurance maintained as herein required shall be primary and non-contributory
and shall name the other Owners as additional insured parties. Said policy shall
provide coverage of at least $2,000,000.00 combined single limit, or such higher
amounts as are reasonably designated by Project Developer from time to time
based on coverage that owners or developers of other similar properties
customarily maintain in Yavapai County or the Phoenix metropolitan area. Each
policy shall provide that it cannot be cancelled without at least thirty (30)
days prior written notice to the other Owners, and shall be issued by
financially sound and reputable insurance companies, as reasonably determined by
Project Developer, and shall be authorized to do business in Arizona.
Certificates evidencing the existence of such insurance, including the 30-day
notice of cancellation set forth above and the waiver of subrogation set forth
in Section 9.4, shall be provided by each Owner to the other Owners from time to
time upon request.
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9.3 Self-insurance. The insurance requirements in this Article 9
may be satisfied by a plan of self-insurance from time to time, but only so long
as such Owner has and maintains a net worth of $200,000,000.00 or more and such
Owner furnishes to any other Owner requesting the sa evidence of compliance with
the minimum net worth requirement set forth above. The annual report or annual
financial statements of such Owner audited by an independent certified public
accountant shall be sufficient evidence of its net worth. If any Owner elects to
self-insure pursuant to this Section and thereafter elects to terminate such
self-insurance programs, it shall give at least thirty (30) days prior written
notice thereof to the other Owners and within said 30-day period shall comply
with Sections 9.1, 9.2 and 9.4 and shall deliver to each Owner the certificate
of insurance referred to in Section 9.2.
9.4 Waiver of Subrogation. Notwithstanding any other provisions
in this Agreement, each Owner hereby waives any and all rights of recovery
against each Owner, and their respective directors, partners, officers,
employees, shareholders, members, managers and representatives, for of or damage
to the waiving Owner, its property or the property of others under its control,
to the extent that such loss or damage is insured against under any insurance
policy in force at the time of such loss or damage. Each Owner shall, upon
obtaining the insurance policies required hereunder, give notice to its
insurance carriers that the foregoing waiver of subrogation is contained in this
Agreement and shall obtain, at its expense, if any, an appropriate waiver of
subrogation endorsement from their insurer.
10. RIGHT TO RECORD ADDITIONAL COVENANTS AND EASEMENTS.
Project Developer expressly reserves the right to record from
time to time additional covenants, conditions, restrictions and easements
against the Project Developer Parcel and Project Developer Easement Areas, as
may be reduced pursuant to Section 4.9 above, with respect to the development
and operation of all or portions of the Project Developer Parcel, to the extent
it deems necessary and appropriate from time to time in its sole discretion,
provided that the same shall not materially amend the rights, benefits and
burdens set forth in this Agreement except in accordance with Sections 4.9 and 7
above. In no event will Project Developer have any obligation to undertake the
construction or development of the Project Developer Parcel and/or the Project
Developer Easement Areas now or in the future, or to develop the Project
Developer Parcel in any manner other than as Project Developer chooses in its
sole discretion.
11. ADDITIONAL PROVISIONS.
11.1 Condemnation. If any portion of the Easement Areas is taken
through eminent domain proceedings, or is acquired in lieu thereof, by any duly
constituted authority for a public or a quasi-public use, that portion of the
award attributable to the value of the land and improvements so taken shall be
payable only to the Owner thereof (or to the Owner's lender, as their respective
interest(s) may appear), and no claim thereon shall be made by any other Owner,
provided that such other Owner may independently file collateral claims with the
condemning authority for loss of easement rights if such claims do not operate
to reduce the award to be paid to the Owner of the land and improvements so
taken.
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11.2 Constructive Notice and Acceptance. Every Owner or Permittee
who now or hereafter owns or acquires any right, title or interest in or to any
portion of Parcel is and shall be conclusively deemed to have consented and
agreed to every covenant, restriction and easement contai herein which burdens,
restricts or benefits said portion, whether or not any reference to this
Agreement is contained in the instrument by which such interest is acquired.
11.3 Headings. The headings used herein are for convenience only
and do not in any way limit or define the scope or intent of the provisions
hereof.
11.4 Invalidity of any Provision. If any provision of this
instrument is adjudged by a court of competent jurisdiction to be void or
unenforceable for any reason, the same shall in no way affect any other
provision of this instrument, or the application of any such provision und
circumstances different from those adjudicated by the court, or the validity or
enforceability of this instrument as a whole.
11.5 Notices. Any notice, consent, request, demand, approval or
other communication provided for herein or sent pursuant hereto shall be in
writing and shall be given by delivering the same to an Owner in person or by
sending the same by United States mail (registered, certified express mail),
with postage prepaid, or by "Federal Express" or other reputable overnight
courier service, to the address set forth below:
To Project Developer: 3838 North Central Avenue
Suite 1500
Phoenix, Arizona 85012
Attention: Peggy Kirch
Jeff Romaine, Esq.
To Resort Owner: 2601 E. Thomas Road
Suite 225
Phoenix, Arizona 85016
To Health Club: P.O. Box 1243
Sedona, AZ 86339
OR
561 Highway 179
Sedona, AZ 86336
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with copy to: The Ridge Spa and Racquet Club
at Sedona Golf Resort
10 Ridge View Drive
Sedona, AZ 86336
Attn: Ivan Madar
Any Owner may change its mailing address by giving written notice of such change
to the other Owners in the manner set forth above at least ten (10) days prior
to the date such change is to become effective. All notices, consents or other
communications under this Agreement shall be deemed given, received and made on
the date personal delivery or overnight courier delivery is effected or, if
mailed, on the delivery date or attempted delivery date shown on the return
receipt.
11.6 No Representations or Warranties. No representations or
warranties of any kind whatsoever, express or implied, shall be deemed to have
been given or made by Project Developer with respect to its approval of any
plans and specifications submitted pursuant to this Agreement o the Resort Owner
Agreement, including without limitation with respect to compliance with zoning
and subdivision requirements, or with building and other applicable codes,
regulations and laws, or fitness for the intended use.
11.7 Governing Law; Time of the Essence; Exhibits. This Agreement
shall be construed and governed under the laws of the State of Arizona. Time is
of the essence with respect to each of the covenants contained in this
Agreement. All exhibits attached hereto are a part of this Agreement.
11.8 No Rights to Public. No part of this Agreement shall be
construed as creating or granting any rights to the general public, nor shall
any part be construed as a dedication of any portion of an Easement Areas for
public use.
11.9 Estoppel. Each Owner shall, upon the written request of
another Owner, execute an estoppel certificate which may be relied upon by the
requesting Owner, its successors and assigns and lenders, stating whether any
defaults exist under this Agreement on the part of the requesting Owner, whether
any sums are owed by the requesting party to such Owner and such other
information as may be reasonably required. Any failure to deliver or mail by
certified mail, return receipt requested, a written response to the address set
forth in the notice from the requesting Owner within thirty (30) days after
receipt of the request shall be deemed to be an acknowledgment that the
non-responding party claims no defaults and that no sum is owed by the
requesting Owner.
11.10 Force Majeure. Each Owner shall be excused from performing
any of its respective obligations in this Agreement (except obligations to pay
or reimburse sums of money) for as long as the performance of any such
obligation is prevented, delayed or hindered by act of God, flood or other
weather conditions of unusual severity, explosion, war (declared or undeclared),
riot, inability to procure or general shortage of labor, equipment, facilities
or materials in the open market, failure of transportation, strikes, order of
government or civil or defense authorities, or other cause not within the
reasonable control of the respective Owner (financial inability excepted).
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11.11 Taxes. Each Owner shall pay prior to delinquency all taxes,
assessments or other charges levied or made by a governmental body or agency
against its Parcel, provided that each Owner may contest in good faith any such
real property tax or assessment so long as any such contested tax or assessment
is paid prior to a tax sale under any applicable law.
11.12 Release Upon Sale of Interest. Upon the assignment,
conveyance, sale or other transfer by an Owner of its entire right, title and
interest in its Parcel ("transfer"), that Owner shall be released from those
obligations in this Agreement as the Owner thereof arising after th effective
date of such transfer (other than those obligations arising from any default by
such Owner under this Agreement prior to such transfer, including payment of any
amounts which may then be due and owing), but only after the recording of the
instrument consummating the transfer. Upon a transfer, the transferee shall not
be personally liable for any default under this Agreement which occurred prior
to the effective date of the transfer if, prior to such transfer, such
transferee executes and delivers to the other Owners a written statement in
which the name and address of the transferee shall be disclosed and the
transferee acknowledges its obligations to be bound by this Agreement and to
perform all obligations hereunder upon consummation of the transfer. Otherwise,
such transferee shall be obligated for any defaults under this Agreement
occurring before or after such transfer. Failure to deliver any such written
statement shall not affect the running of the covenants herein with the land,
nor negate, modify or otherwise affect the liability of any transferee pursuant
to this Agreement.
11.13 Authority; Joint and Several Liability. Each individual
executing this Agreement represents and warrants that he or she is duly
authorized to bind the entity on behalf of which he or she is signing. If a
Parcel is owned by more than one Owner, each Person constituting an Owner shall
be jointly and severally obligated for all liabilities of an Owner of such
Parcel.
11.14 Resort Owner Agreement Requirements. Project Developer and
Resort Owner acknowledge that certain obligations and requirements regarding the
development of certain on-site and off-site improvements for the Resort Parcel
are set forth in the Resort Owner Agreement, all of which shall survive the
transfer of the Resort Parcel to Resort Owner. With respect to the rights,
duties and obligations between Project Developer and Resort Owner, in the event
of a conflict between the Resort Owner Agreement and the provisions of this
Agreement, the more restrictive provision shall control.
11.15 Rule Against Perpetuities. If any of the interests,
privileges, covenants or rights created by this Agreement shall be unlawful,
void or voidable for violation of the rule against perpetuities or any related
rule, then such provision shall continue until 21 years after the death of the
last survivor of those issue of Bruce Babbitt, former Governor of Arizona, who
are living on the date this Agreement is recorded, and the descendants of such
issue.
11.16 Governmental Requirements. The covenants and restrictions
in this Agreement are in addition to all applicable governmental requirements,
laws, rules, codes and ordinances. If a conflict exists between this Agreement
and such requirements, laws, rules, codes or ordinances, then the more
restrictive requirement shall govern.
24
11.17 No Third-Party Beneficiaries. There shall be no third-party
beneficiaries of this Agreement except as may be specifically named and
designated as such in this Agreement.
11.18 Buildings on Project Developer Parcel. The Owner of the
Project Developer Parcel agrees, for the benefit of the Owner of the Resort
Parcel, that (i) the buildings, walls and landscaping constructed or installed
from time to time on the Project Developer Parcel, shall be constructed and
installed in a first-class fashion and designed in an attractive manner
compatible with the overall appearance of the Sedona Golf Project, provided that
certain retail and grocery store uses may be designed to be compatible with the
unique look and appearance customary for such uses, (ii) any roof-mounted
heating, ventilation or air conditioning equipment located on the Project
Developer Parcel will be screened on the side facing the Resort Parcel by an
attractive barrier at least as high as such equipment, which barrier shall be
constructed of materials and colors suitable for the Sedona Golf Project, and
(iii) if the rear portion of any buildings on the Project Developer Parcel face
the Resort Parcel, then such rear portion shall be designed in a reasonably
attractive manner compatible with the overall appearance of other buildings in
the Sedona Golf Project. This Section may only be enforced by the Owner of the
Resort Parcel.
11.19 Parties Bound By This Agreement. Project Developer and
Resort Owner agree that, to accommodate the closing for the transfer of the
Resort Parcel to Resort Owner, this Agreement shall be recorded prior to its
execution by Health Club Owner. Accordingly, this Agreement will be recorded
without Exhibit "C" attached, and this Agreement shall neither bind nor benefit
the Health Club Parcel or the Owner of the Health Club Parcel or its Permittees
in any way unless and until such Owner agrees, in a recorded document also
signed by Resort Owner and Project Developer, to be bound by and subject to all
of the covenants, conditions, easements and restrictions set forth in this
Agreement. In no event shall the Owner of the Health Club Parcel or any of its
Permittees be deemed to constitute third-party beneficiaries of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this instrument
as of the date first above written.
SEDONA GOLF RESORT, L.C., an
Arizona limited liability company,
BY: SunCor Development Company, an
Arizona corporation, its Managing Member
By: /s/Peggy Kirch
------------------------------
(Signature)
Its: Vice President
-----------------------------
(Printed/Typed Name and Title)
UP SEDONA, INC.,
an Arizona corporation
By: /s/William S. Oliver
------------------------------
William S. Oliver, President
ALL SEASONS RESORTS, INC.,
an Arizona corporation
By:
------------------------------
(Signature)
Its:
-----------------------------
(Printed/Typed Name and Title)
26
STATE OF ARIZONA )
) SS:
COUNTY OF MARICOPA )
Before me, the undersigned, a Notary Public in and for said
County and State, this 19th day of December, 1996, personally appeared Peggy
Kirch the Vice President of SunCor Development Company, an Arizona corporation,
which corporation is the Managing Member of Sedona Golf Resort, L.C., an Arizona
limited liability company, who acknowledged the execution of the above Agreement
to be his/her voluntary act and deed on behalf of said corporation, as such
Managing Member.
WITNESS my hand and notarial seal.
/s/Pamela D. Swoboda Notary Public
----------------------------------
Resident of Maricopa County
My Commission Expires: May 28, 1998
STATE OF ARIZONA )
) SS:
COUNTY OF MARICOPA )
Before me, the undersigned, a Notary Public in and for said
County and State, this 19th day of December, 1996, personally appeared William
S. Oliver, the President of UP Sedona, Inc., an Arizona corporation, who
acknowledged the execution of the above Agreement to be his/her voluntary act
and deed.
WITNESS my hand and notarial seal.
/s/Pamela D. Swoboda
------------------------------
Notary Public
Resident of Maricopa County
My Commission expires: May 23, 1998
STATE OF ARIZONA )
) SS:
COUNTY OF )
Before me, the undersigned, a Notary Public in and for said
County and State, this _____ day of , 1996, personally appeared , the of All
Seasons Resorts, Inc., an Arizona corporation, who acknowledged the executi of
the above Agreement to be his/her voluntary act and deed.
WITNESS my hand and notarial seal.
Notary Public
------------------------------
Resident of County
My Commission expires:
27
EXHIBITS
Exhibit "A" - Legal description of Resort Parcel (Recital A)
Exhibit "B" - Legal description of Project Developer Parcel (Recital B)
Exhibit "C" - Legal description of Health Club Parcel (Recital C) to be
added later
Exhibit "D-1" - Site Plan showing Parking Area with 56 spaces and Primary
Access Drive designated (Sections 1.11, 1.14 and 4.2.2)
Exhibit "D-2" - Legal description of Parking Area (Section 4.2.2)
Exhibit "E" - Legal description or diagram of Sedona Golf Project
(Section 1.23)