Bonfante Gardens Inc.and Eagle Ridge HOA - Easement and Maintenance Agreement-� INSURED G - rTC
CHICAGO TIT E
RECORDING REQUESTED BY
MILLER, MORTON, CAILLAT &. NEVIS
AND WHEN RECORDED MAIL. TO
MILLER, MORTON, CAILLAT & NEVIS
25 Metro Drive, 7u' Floor
San Jose, California 95110
Attention: David L. Nevis Esq.
DOCUMENT: 18382319
BRENDA DAVIS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
Chicago Title
Pages: 23
Fees. 73 00
Taxes...
Copies
AMT PAID 73 00
RDE a 003
5/20/2005
1.56 PH
USE
DOCUMENTARY TRANSFER TAX S
Sipum of Deekrm or A'em dowmin* fax — Fire Name
EASEMENT AND MAINTENANCE AGREEMENT
Preamble and Recitals
This Agreement is entered into on A4W L 3 , 20 v Y by and
between Bonfante Gardens, Inc., a Delaware nonprofit corporation ( "Grantor ") and The
Community of Eagle Ridge Owners' Association, a California nonprofit mutual benefit
corporation ( "Grantee ").
A. Grantor is the owner of certain real property situated in the City of Gilroy,
Santa Clara County, California (hereinafter referred to as "Parcel 1 "), and more
particularly described as set forth in Exhibit "A ", which is attached to this Agreement and
hereby incorporated by reference.
B. Grantee is the community association created to manage the common
interest development known as Eagle Ridge, located within the City of Gilroy, Santa
Clara County, California (the "Eagle Ridge Development "). Grantee's homeowner
members are the individual owners of lots within the Eagle Ridge Development.
C. Grantee desires to acquire certain rights in that part of Parcel 1 described
as follows: a non - exclusive right of way easement over the real property described in
Exhibit `B ", which is attached hereto and hereby incorporated by reference (hereafter
referred to as the "Servient Tenement').
1. Grant of Easement. For good and valuable consideration, receipt of
which is hereby acknowledged, Grantor grants to Grantee, for the benefit of Grantee and
its homeowner members, an easement, on the terms and conditions set forth in this
Agreement.
2. Character of Easement. The easement granted in this Agreement is in
gross to Grantee and its current and future homeowner members.
3. Description of Easement. The easement granted in this Agreement is a
nonexclusive easement for driveway purposes for motorized vehicular traffic only. For
purposes of this Agreement "driveway purposes" means use for and by moving
motorized vehicular traffic for ingress and egress over and across the Servient Tenement
by Grantee's homeowner members living with the Eagle Ridge Development,
specifically excluding however, any right of any guest, invitee, employee, agent, or
contractor of such homeowner members to use such easement. No pedestrian traffic or
parking rights shall be permitted on the Servient Tenement. For purposes of this
Easement, the term "homeowner members" shall be broadly construed to include renters
and other persons whose personal permanent residence is within the Eagle Ridge
Development.
4. Term. The easement granted in this Agreement shall be perpetual.
5. Nonexclusive Easement. The easement granted in this Agreement is
nonexclusive. Grantor retains the right to make any use of the Servient Tenement. In
addition, Grantor retains the right to grant concurrent easements in the Servient Tenement
to third parties, including emergency vehicles; provided however, that grants in favor of
third parties shall not unreasonably interfere with the Grantee's use of the Easement.
6. Maintenance of Easement. Grantor shall maintain the Servient
Tenement in good repair, at Grantor's sole cost and expense.
7. Agreement Nonassignable. This Agreement shall not be assigned. Any
purported assignment of this Agreement or of any interest in this Agreement shall be void
and of no effect
8. Right to Relocate Easement. Grantor retains the right to relocate the
easement and the Servient Tenement to other portions of Parcel 1, provided, however,
that: (i) all costs and expenses of the relocation are born by Grantor; (ii) the relocation
does not unreasonably interfere with the Grantee's and its homeowner members' use of
the easement, it being agreed that any relocation which lengthens the distance of the
easement by more the fifty percent (50 %) would be deemed unreasonable; (iii) Grantor
gives Grantee at least ninety (90) days advanced written notice of such relocation; and
(iv) the easement, after such relocation, shall be similar in width and surface quality as
the existing easement.
9. Subject to Provisions of Operating Agreement. Grantee's and its
homeowner members' right to use the easement is further subject to all of the terms and
conditions of that certain Operating Agreement, executed by Grantor and Grantee,
concurrently, herewith, a copy of which is attached hereto as Exhibit "C ".
10. Entire Agreement. This Agreement constitutes the entire agreement
between Grantor and Grantee relating to the above easement. Any prior agreements,
promises, negotiations, or representations not expressly set forth in this Agreement are of
2
no force and effect. Any amendment to this Agreement shall be of no force and effect
unless it is in writing and signed by Grantor and Grantee_
11. Binding Effect. This Agreement shall be binding on and shall inure to the
benefit of the heirs, executors, administrators, successors and assigns of Grantor and
Grantee.
Executed on Ags-r.-_3 12004.
X'Xr �
BONI+ANTE GARDENS, INC., a Delaware
nonprofit corporation
492 ay:
Its- V'C'e-
GRANTEE:
THE COMMUNITY OF EAGLE RIDGE OWNERS' ASSOCIATION,
a California non - profit mutual benefit corporation
Wfl
By,
Nam
Its: GG c..�
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California off ,,
County of &�cc
On'� ' S . '34 Z= ' before me, —
personally appeared JC�t?tC
DONNA tFW
COmmiWon t 1408442
soft cam Calbrrera
wf�Ewtllor�q
-DfD
- N m are Wo of aaoa to 1, *Jvo Do, Naaw Poftl
- -MUn�W � rge�r(N
'Vwzonally known to me
O proved to me on the basis of satisfactory
evidence
to be the person(s) whose names) islare
subscribed to the within instrument and
acknowledged to me that helshelthey executed
the same in his/herltheir authorized
capacity(iss), and that by Ns/her/their
signatures) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNE �yhandando
ap....d
OPTIONAL
ThoWh the kftm ahcn below a not Aogwod by law, d may prove wefuabfe to persons relyetp on the document end mold prevent
ftudu(mu removal and rea m*rrenl of tole farm to arofter document
Description of Attached Document,, } /
Title or Type of Document:(�Y
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity (ies) Claimed by Signer
Signer's Name:
O Individual Top at hart boo
• Corporate Officer— Title(s):
• Partner — O Limited O General
• Attorney -in -Fact
• Trustee
• Guardian or Conservator
❑ Other.
Signer Is Representing:
DIM N&WW ?4WV Afe07faan • 9850 De Sara Ave.. PO 4=240- Chdwmrd%G 91 itsN@ • wwnelor,ek,ol!/Pa FWtl Na 5007 fleadu Ud TaFFar $4006*SW
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
County of Sslytl _
On ` -V%A S 2-r0 04 before me. Saf-b 1I '>;� X16
personally appeared
51iRON tiJ1VCN
Cornmisdon rM 1445141
Nowry "le - Colilonda
Sputa Coro County
, bpw Oct 13.2007
I LL
❑ personally known to me
O, proved to me on the basis of satislaclory
evidence
to be the person(s) whose name(s) istare
subscribed to the within instrument and
acknowledged to me that he /she/they executed
the same in his/her /their authorized
capacity(ies), and that by histher/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITN my hand and offt,6t-o/
al.
1.A
&rub.•d N"Y t+f.p
OPTIONAL
rmW the into —4on below is no( required bylaw, it may prom wb&e ro pentads rebw on the d affWN and OOCdd p►v w#
rrnvdL*nt removal and reattachment of this tom ro arrorher document
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
• Corporate Officer — Title(s): _
• Partner — ❑ Limited 0 General
• Attomey -in -Fact
• Trustee
• Guardian or Conservator
• Other:
Signer Is Representing:
Number of Pages:
a IGHTTHU,'.1RPR f7
OF S'GUEFI
9 1WV H4W W Mt" A0 Ian • SM 0! SM A". P 0 5w 2t02 , CMfi- k CA 21212,2402 - V NIg1W nolmy pry Pled Np ON Aswdm AI Ta&Ffw 1- W"72.8ni
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of Calitomia
County of QD U(A
On �'�=�" . t 1'C" be�forf me,
Won &a This aoeerNa•.al -000 k*"Awki
personally appeared
dQ�OiIA tai11FF
COwa tdon 1400442
Nokoy tjbw . Caftrnia
Sam Clwa Cm*
MIICortlert E7t1t1�30.6
❑ personally known to me
roved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) islare
subscribed to the within instrument and
acknowledged to me that helsheAhey executed
the same in his/her /their authorized
capacity(ies), and that by histherttheir
signature(s) on the instrument the person(s), or
the entrty upon behalf of which the person(s)
acted, executed the instrument.
WITNES �offici
oP77ONAL
Trwugh 1179 kdemwWn below is nor Muffed by few, if may pmve Vatueble to persons *ivv on the document and Could pmwnr
kaudutant rem vat and rwaadanant or Ma corm to another document
Description of Attached Document
Title or Type of Document:
Document fate: Number of Pages;
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual 7000t"". 17919
O Corporale Officer --- Title(s):
• Partner — ❑ Limited ❑ General
• Attorney-in +act
❑ Trustee
❑ Guardian or Conservator
D Other:
Signer Is Representing:
V 1 W0 lat=W wary a.aa=dW • 1780 a Soo AM.. P 6 Bea 2k4 Cl�sworfn, CA Otl13NO2 • �wv tinaW llpgty op Pod No 5007 Pa r CA To6F," 140687&w
Exhibit "A"
Legal Description of Parcel 1
EXHIBIT low
LEGAL DESCRIPTION OF- PARCEL 9
Ali that reel property situated In .the City of Gimy. County of Santa Clara, State of Cellforiria,
descrtbed as fotlCays:
An of N=j 4 and 4 as Bald parcels are shown an tfie map entitfed' lot Line Adjustment
parcel Map`, iced for record an January 7, 1982 in Book 494 of Maps, at Page 43, Records of
Santa Clara County, Gagrn* and d of Parcels 8 end C. as said p8=16 are de=rt and in that
certain Ceridcats of Compliance (tit line Adjustment Sw to Clara County OnDnB oe Coda
Section C 12-11), filed for record on April 14, IM as Document 0 14139227, Reoards of Septa
Clara County, Caltfomta:
taw
Jul W FETiLEY
341 160
- %V. Pt= ['nzy. Pu 62 ' ." �k DATE
1R S: MARCH 31, 2006 NM 6202
C
Exhibit `B"
Legal Description of Servient Tenement
61
EXHIBIT NV'
LEGAL DESCRIPTION OF
SERVIENT TENEMENT
Al that real property situated in the City of G'bW, County of Santa Gars, State of California,
described as follows:
A strip of land over an existing access road fran the soumerty right- of-way of the Hecker Pass
Highway (Route 152), described as follows;
A portlon of Parcels 1 and 4 as said parcels are shown on the map entitled `Lot Una
Adjustment Parcel Map ", riled for record an January 7, M12 in Book 494 of Maps, at page 43.
Records of Santa Clam County. Calkmia, and also being a portion of Parcels B and C, as said
parcels are described In that certain Cartlficate of Compliance (Lot Una Adjustment: Santa
Clara County Ordinance Code Seeft C 12 -11), filed for retard on April 14. 1896 as Document
# 14139227, Records of Santa Clara County, California, end being more parikulady described
as follows:
Commencing at the most northwesterly oorner of acrd Parcel B; thence running along the Iate
common to said PsmW B and Parma C
a.) S001W020E, a distance of 483.34 feet to the TRUE POINT OF BEGINNING; thence
leaving said common line
1.) N42•42'SM, a distance o(43.31 feet to the beginning of a curve to the right having a
radius of 308.00 fact; thence
2.) Northwesterly along salt curve, through a central angle of 16'52'4x; a distance of 108.42
feet: thence
3.) N25'5p*041W, a distance of 884.73 feet; thence
4.) N31'14'1 6"W, a distance of 123.43 feet to the beginning of a curve to the Left having a
radius of 107.00 fast; thence
5.) Northwesterly along said curve, through a central angle of 58 °4845"; a distance of 109.83
feet; thence
13.) S89'56'S9"W, a distance of 531.54 feet to the beginning of a curve to the right having a
radius of 58.00 feet; thence
7.) Northwesterly along said curve, through a central angle of 59'59'36"; a distance of 60.73
feet to the beginning of a reverse curve to the left having a radius of 142.00 feet; thence
8.) Northwesterly along sald curve, through a central angle of 4I "3550", a distance of 103.09
feat; thence
9.) N711139115"W, a distance of 171.45 feet; thence
10.) NI6'20`45 "E, a (fistanae of 8.00 feet io the beginning of a non - tangent curve to the right
from which the radius point bears N18920'45"E, a radial distance of 90.00 feet; thence
11.) Northwestady along said curve, t vmtgh a central angle of 90 °48'65", a distance of 142.88
feet; thence
12.) N19'1041"E. a distance of 159.53 feet, more or less, to the beginning of s save to the right
!having a radius of 30.00 feet; thence
13.) Northeasterly slang said curve, through a central angle of 87'2738", more or less, a
distance of 45.79 feet, more or less, to a point on the southerly right- of-way of Hecker
Pass Hlphway (Route 152), being a point of cusp, and the beginning of a non - tangent
curve to the right, from which the radus point bears appraodmately N1f3 SWE, a radial
distance of 1,550.00 feet; thence running slang said southerly right-of -way of Hetdcer Pass
HigtYway (Route 152)
14.) Westady along said curve, through a central angle of 04'47'i 7", more or leas, a distance W
129.53 feet, more or less, to a point of cusp, and the beginning of a non- tangent curve to
the right, from which the radius point bears approodmately : 21 M*37'W, a radial distance
of 30.00 feet; thence leaving ssld southerly right- of-way of Hecker Mass fthway (Ratite
152)
15.) Southeasterly alone said curve, through a central angle of 87'4504", more or less, a
distance of 45.95 feet, more or less; thence
16.) S19'10'41" W. a distance of 9920 feat, more or less, to the beginning of a curve to the left
have$ a radius of 162.00 feet, said curve being concentric with the curve described In
Courses 10 and 11 of this description; thence
17.) Southeasteity along said concentrle curve. through a central angle of 9004755 "; a distance
of 256.82 feet; thence
18.) S71'39'15"E, a distance of 171.45 feet to the beginning of a trove to the right having a
radius of 78.00 feet; thence
18.) Southeasterly along said curve, through a central angle of 419315"50'; a dlstanoe of 156.63
feet to the beginning of a reverse curve to the left having a radius of 122.00 feet; thence
20.) Southeasterly along said curve, through a central angle of 59 059136', a distance of 127.74
fast; thence
21.) N89.581591E, a distance of 531.54 feet to the beginning of a curve to the right having a
radius 0( 43.00 feet thence
22.) Southeasterly along said curve, through a central angle of 68048'45 "; a distance of 44.14
feet thence
23.) S31'14'16 "E, a distance of 120.41 feet: thence
24.) S25 °50104 "E, a distance of 1107.14 feet to the beginning of a curve to the right having a
radius of 65.00 foot; thence
25.) Southeasterly along said curve, through a central angle of 64'1920"; a distance of 72.97
feet to the beginning of a reverse curve to to left having a radius of 96.00 feet; thence
26.) Southerly along said curve, through a central angle of 64 159'06"; a distance of 108.89 feet;
thence
27.) S26 °29'50 "E, a distance of 80.69 feet thence
25.) N63 °30'1 0 "E, a distance of 96.32 feet; thence
29.) N00046142'W, a distance of 53.15 feet thence
30.) N21041'391E, a distance of 98.36 fast; thence
31.) N21'2639%, a distance of 118.38 feet to the beginning of a save to the MR having a
radius of 192.00 feet; thence
32.) Northerly afong said curve, through a central angle of 21'11 li'12', a distance of 71.28 feet to
the TRUE POINT OF GEGINNfNG.
Containing 198,3119.92 square feet or 4.508 acres, more or less.
END OF DESCRIPTION.
. 1 0- - 1 y.._ I, I MV VG
is MARCH 31, 2006
Jai w FttltFY
�1
9119! 04,
• IVc.6202
�\ KCAL
ti
zl1 a/o d+
DATE r
Ca
C1 A116 :38 20 J J�J-1 y�4 Y
Ell
V 'W
�j\s:..rn:.. •'•
C
`,per pp ry'56'59 "E 531.54' `•
:" -a►a'a .nt =.... �.: qtr•
't:l..J•Y�:' "nAW.N�M1f TJ Rir'A.IYM l�F•TA.
PARCEL 1 ' N�'S6's9 "E 531.54C12
494 -'M -43 I
P.O.C.
T.P.O.B.
� Y4iY1Nr
�i
:LEND
POINT OF GYM m4WCE'MENT
7RUE POINT OF Brown
PROPERTY BOUNDARY LINE
EASEMENT LINE
EXISrm LO or LINE
INGRESS/EGRESS EASEMENT
RADIAL BEARING
APPROXIAM rE DIMENSION (SEE NO7P)
CURVE TABLE
CURVE
LENGTH
RADIUS
DELTA
Cl
08.41'
368.00'
16'52'47"
C2
09.83`
107.00'
58'48'45"
C3
60.73'
58-00'.-A
5W 6"
C4
103. 9'
142.00'
41'35'50"
C5
142.68'
90.00'
80'49'55'
C6
45.79'
30.00'
87' 7'39"
C7
' 29.53'
1550.00'
•4'47'17"
C8
45.95'
30,00'
87'45'04"
C9
256.82'
162.00'
90149'55"
CIO
56.63'
78.00'
41'35'50"
C11
127.74'
122.00'
59'59'36 -
C12
44.14'
43.00'
58'4 '45"
C13
72.97'
65.00'
64-9'20'
Cl 4
08.88'
95,00'
64'59'06"
C15
71.28'
192.00'
21'16'12"
EXHIBIT "A"
W
(d:)
PLAT TO ACCOMPANY
INGRESS�EGRESS EASEMENT
PORTIONS OF PARCELS I & 4, 494 -M -43
AND PORTIONS OF PARCELS "B" & "C" AS
DESCRIBED IN THE LOT LINE ADJUSTMENT
RECORDED AS DOCUMENT #14139227
NTH CLARA COUNTY, CAiIFORNIA
s
PARCEL 4
494 -M -43
.PARCEL C
DOCUMENT
#14139227
LINE TABLE
LINE
LENGTH
I BEARING
Ll
43.31'
42'42'50 "W
LB
2 .43'
'14'16 'W
L3
171.45'
N71 9'1 5 "W
L4
8.00'
N18'20'45 "E
L5
89.53'
N19' 0'41 "E
L6
89.20'
N19-10'41 "
L7
171.
711915 "W
LB
120.41'
N31'14'16"
L9
.69'
6' .w
1-10
86.32'
N63'30'10"
L11
53.1.9',
'46'42 "W
L12
N21'41'38"
L131
118,38'
21'26'38 "W
Cl
:-T.P.O.B.
OTE: PARCEL B
0141ENSIONS DENOTED THUS (fJ DOCUMENT
SHALL BE AD.V57ED TO COINCIDE #14139227
W17H THE SOU7HERL Y L INE OF
HECK£R PASS HIGHWAY. '
0 300 600 900
SCALE IN FEET, 1 300'
4i�j�Gll
1+rnsen
tzar a Associates
01 am
055 OA
PHONE B 8-0300 �NL (408 9� a -0802
SCALE: DATE: JOB N0.
�" n 3 D0' 7 -15 -2004 032045
tf�
PARCEL A
DOCUMENT
*14139227
P.O.C.
`%
B
'o
r=
50 - -
Cl
:-T.P.O.B.
OTE: PARCEL B
0141ENSIONS DENOTED THUS (fJ DOCUMENT
SHALL BE AD.V57ED TO COINCIDE #14139227
W17H THE SOU7HERL Y L INE OF
HECK£R PASS HIGHWAY. '
0 300 600 900
SCALE IN FEET, 1 300'
4i�j�Gll
1+rnsen
tzar a Associates
01 am
055 OA
PHONE B 8-0300 �NL (408 9� a -0802
SCALE: DATE: JOB N0.
�" n 3 D0' 7 -15 -2004 032045
tf�
Exhibit "C"
Operating Aixreement
COPY
OPERATING AGREEMENT
This Operating Agreement is made this j�: day gGi�n 2004, by and between
Bonfante Garddns, Inc., a Delaware nonprofit corporation {"Bon te''j and The Community of Eagle
Ridge Owners' Association, a California nonprofit mutual benefit corporation (`HOA ").
RECITALS
Whereas, Bonfante owns and operates a horticultural nonprofit theme park (the "Theme
park" or "Bonfante Gardens') on Parcel 1, described in that certain Easement and Maintenance
Agreement ("Easement Agreement') executed by the parties concurrently herewith; and
Whereas, HOA is the entity created to manage the residential development located in
Gilroy, California known as Eagle Ridge (the "Eagle Ridge Development "); and
Whereas, it is the desire and intent of the parties in entering into this Agreement to establish
restrictions, limitations, and covenants to develop a general scheme for the mutual use and enjoyment
of the Servient Tenement (in this Agreement, also referred to as the "Access Road"), as described in
the Easement Agreement.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
1. Permanent Fencintt of Servient Tenement: Shapell Industries, Inc. ( 'Shapell'% has
agreed by separate agreement, to install a six -foot (6') tali galvanized steel fence with three strands of
barbed wire, surrounding the Servient Tenement, at the locations shown on Exhibit "A ", in order to
separate the Servient Tenement from other properties owned by Bonfante. During the term of this
Agreement, the parties agree to retain and maintain such fencing in accordance with the procedures
set forth in Section 2, below.
2. Maintenance. Bonfante shall maintain the Servient Tenement, as provided in
Paragraph 6 of the Easement Agreement. Notwithstanding the foregoing, the parties agree that their
respective duties towards the operation, maintenance, repairs and replacement of certain of the
fencing and landscaping surrounding the Servient Tenement shall be as shown on Exhibit B. HOA
further agrees that it shall, at its sole cost and expense, operate, maintain, repair and replace (as
necessary) the two electronic entry /exit gates and related operating systems, including a devisee to
prohibit vehicular ingress through the egress lanes. In addition, HOA agrees to maintain, repair and
replace (as necessary) the camera surveillance system originally installed by Shapell, however, being
the personal property of HOA. Each of the parties agrees to perform its maintenance duties in a good
and commercial manner.
3. Access Rights and Procedures. HOA and its homeowner members shall only enter
into or exit from the' Servient Tenement through the entry/exit gates, using an electronic pass, code or
similar device, consistent with the procedures adopted by HOA for its members' ingress and egress
through the electronic gate system currently being used at the Ballybunion Drive, Gilroy, California,
entrance. All access shall be limited to HOA homeowner members and shall not be used by a
homeowner member's guest; employee, agent or contractor. In addition, access shall be limited to
motorized vehicular traffic (pedestrian traffic being expressly excluded) as a drive through, with no
right to park. HOA shall take reasonably commercial steps to insure that the access is limited to its
homeowner members. For purposes of this Agreement, the term "homeowner members" shall be
broadly construed to include renters and other persons whose personal permanent residence is within
the Eagle Ridge Development. i
4. Restriction] on Ilse and Enjoyment: Notwithstanding any thing stated in the Easement
Agreement to the contrary, during the period this Agreement is in full force and effect, the right of
HOA and its homeowner members to use the Servient Tenement shall be restricted as follows:
(a) We During Bonfante's Operating Season, Legal Holidays, and Special
Events. To help mitigate traffic and security problems, the parties agree that HOA and its
homeowner members' right to use the Servient Tenement shall be restricted as follow:
(1) Operating Season. During Bonfante's operating season, HOA and its
homeowner members' access to or across the Servient Tenement shall be restricted to Mondays
through Fridays of each week, and only then during the hours commencing at 5:00a.m.and continuing
through midnight of each day.
(2) Speelal Events. In addition, Bonfante may close the Servient
Tenement to HOA and its homeowner members' use for up to eight (8) identified weekdays per year,
exclusive of legal holidays, for special events of the Theme Park, provided however, that Bonfante
shall give the homeowner members of the HOA as much advance notice as possible to identify the
eight (8) weekdays per year when the Access Road will be for the sole use of Bonfante, but in no
event less than ten (10) days' notice. The notice will include posting a signboard at the main Eagle
Ridge entrance at Santa Teresa Boulevard and Club Drive as well as at the gate leading to the Access
Road noticing the closure no Iess than ten (10) days in advance of the intended closure date.
(3) Legal Holidays. The Servient Tenement shall be closed to HOA and
its homeowner members during all state and federal legal holidays during the "operating season"
(hereinafter defined),
(b) Determination of Operating Season. Bonfante shall produce its business plan
for the season, no later than February of each calendar year. The business plan shall specifically set
forth the period of time that Bonfante Gardens is open and in operation and the period of time that
Bonfante Gardens is closed and not in operation. The period of time that Bonfante Gardens is open
and in operation shall be the `operating season ". The period of time that Bonfante Gardens is closed
and not in operation shall be the "off- season." The business plan, in regards to periods of operation,
shall be shared with the BOA in February of each year.
(c) Access During Off Season. Excepting as expressly provided for in this Section
4, above, during the off - season, access to the Servient Tenement shall be provided to BOA and its
members, seven (7) days per week and twenty-four (24) hours per day. If discipline, traffic or other
problems arise on the Servient Tenement, the parties shall confer and attempt to develop solutions to
address those problems.
5. Cooperation and Participation In Monitoring Use of Servient Tenement. The
parties agree to cooperate with, assist and participate with the other party in addressing and resolving
problems and security issues related to the operation of, the use and/or misuse, of the Servient
Tenement. In furtherance of this, the parties agree to meet no less frequently then annually to discuss
and formulate solutions for such'problems.
6. Insurance. Each party, at its sole cost and expense, shall provide and cause to be
maintained comprehensive general public liability insurance with an insurance company licensed to
do business in the State. of California, against claims for bodily injury, death or property damage
occurring on, in or about the Servient Tenement. Such insurance to afford a minimum coverage
protection of not less than Five Million Dollars ($5,000,000.00) combined single limit (per
occurrence) for injury to, or death of persons and loss of or damage to, property. Each party shall
provide to the other, at least annually, originals or true copies (certified by the applicable insurance
carriers) of all insurance policies such party is required to carry. Each of the parties' policies of
insurance shall name the other party as an additional named insured, with primary coverage in favor
of all additional named insureds. All insurance policies required to be carried by HOA shall also
provide that the beneficial interest of Bonfante in such policies shall be fully transferable.
7. Attorney's Fees. If either party commences an action against the other party arising
out of or in connection with this Agreement, the prevailing party shall be entitled to have and recover
from the losing party reasonable attorneys' fees and costs of suit.
S. Termination of Agreement. This Agreement shall terminate in the event of the
mutual consent of the parties, or in the event Bonfante, or its successor in interest, ceases to operate a
theme or amusement park on Bonfente's property, described as Parcel I in the Easement Agreement.
In the event of such termination, Bonfante or its successors in interest, may, at their sole election,
upon no less than thirty (30) days advanced written notice to HOA, remove all fencing, the HOA's
electronic entry/exit gates systems, including related operating systems, and the HOA's surveillance
cameras surrounding or on the Servient Tenement During the thirty (30) day notice period HOA can
remove its camera surveillance system and operating systems. In addition, the notice shall extend an
option to HOA to take delivery of its electronic entry/exit gate system, including its operating system
or, if BOA gives written notice to Bonfante (the "Acceptance Notice ") within the thirty (30) day
notice period, to have Bonfante deliver the HOA's electronic entry/exit gate system and operating
system. If the HOA requests delivery, then Bonfante or its successor and interest shall, at its sole cost
and expense, deliver same, without warranty, to HOA at the address set forth in HOA's Acceptance
Notice, provided however, that the Acceptance Notice shall not specify a delivery location which is
more than ten (10) miles from the Eagle Ridge Development.
9. Temporary License to Shapell. By separate agreement, Bonfante has agreed to grant
to Shapell a temporary license to allow access -over the Servient Tenement for construction traffic
(including deliveries, equipment and employees). HOA aclrnowledges such license and agrees that
the use by Shapell under such license shall not constitute an unreasonable interference under Section
5 of the Easement Agreement.
10. Miscellaneous Provisions:
(a) Successors: This Agreement shall be binding on and inure to the benefit of
the parties and their successors.
(b) California Law This Agreement shall be construed and interpreted in
accordance with the laws of the State of California.
(c) Incorporation of Recitals. The above Recitals are incorporated into this
Agreement as if set forth in full.
(d) Mutual Contribution of iAka_ guage. This Agreement is the product of the
negotiation of the parties and has been drafted on the basis of their mutual contributions of language
hereto. It is not to be construed against any particular party as being the drafter or causing the drafting
hereof; or strictly for or against any party, but, rather, shall be neutrally construed as a whole according to
its fair meaning.
(e) Counterparts. Ibis Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the same
amendment. For all purposes, including recording, filing, and delivery of this Agreement, duplicate
unexecuted and unacknowledged pages of any counterparts may be discarded and the remaining pages
assembled as one document.
(f) Affiliated Persons and Entities. All of the terms, covenants and conditions of
this Agreement shall be binding upon each party and all persons and entities affiliated with such party,
including without limitation, all successors, assigns, predecessors in interest, agents, partners, employees,
contractors, officers, administrators, legal representatives, persons and entities which control such party,
entities controlled by such parry, entities under common control with such party, anyone claiming by,
through or under such persons or entities, and any other person or entity that might now or in the future
have a claim as a result of the alleged damage to such party.
(g) Severability and Savings Clause. Each provision ofthis Agreement, whether or
not contained in separate paragraphs, shall be considered to be separable. If, for any reason, any such
provision or provisions, or any part thereof, an determined to be invalid, unenforceable, or contrary to
any existing or future applicable law or judicial ruling, such invalidity shall not impair the operation of or
affect those provisions of this Agreement which are valid. If such event occurs, this Agreement shall be
construed and enforced in all respects as if the inval id or unenforceable provision or provisions had been
omitted from the originals thereof.
(h) Integrated Agreement, Modification: This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter contained in it and supersedes all prior
and contemporaneous agreements, representations, and understandings of the parties. No supplement,
modification, or amendment of this agreement will be binding unless executed in writing by all the
parties. No waiver of any of the provisions of this agreement will be considered, or will constitute, a
waiver of any other provision, and no waiver will constitute a continuing waiver. No waiver will be
4
binding unless executed in writing by the party making the waiver.
(i) Captiog t Table of Contents: The captions of this Agreement shall have no
effect on its interpretation.
6) Exhibits: All Exhibits referred to are attached hereto and incorporated herein
by this reference.
IN WITNESS WHEREOF, the parties to this agreement have duly executed it on the day snd year
first above written.
BONFANTE GARDENS, INC., a Delaware
nonpro
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THE COMMUNITY OF EAGLE RIDGE OWNERS' ASSOCIATION, .
a California non -profit mutual benefit corporation
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Exhibit "A"
Fencing Exhibit
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Exhibit "B"
Maintenance Work
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