HomeMy WebLinkAboutDrainage InformationDa0c85389 Bk Vol pig
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6081 160
84 & RETURN TO,
BRAZOS COUNT Psi3gV_PZT C,oMP~.N~I
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DRAINAGE EASEMENT
04-9~
This DRAINAGE EASEMENT (this "Agreement") is made and entered into as of June 1, 2004
("Effective Date"), by and between CURTIS INVESTMENTS - COLLEGE STATION, LLC, a Texas
limited liability company ("Curds") and CLARKE AND WYNDHAM, INC., a Texas corporation, JPJ
INVESTMENTS, a Texas joint venture, and REAL ALCHEMY I, L.P., a Texas limited partnership, all
of whom are doing business as a joint venture under the name WEST MALL DEVELOPMENT
(collectively, "West Mall"). Curtis and West Mall each are sometimes referred to as an "Owner."
RECITALS:
A. Curtis is the owner of certain land (the "Curtis Parcel") containing approximately 1.68 acres of
land located in College Station, Brazos County, Texas, more particularly described on Exhibit A
to this Agreement.
B. West Mall is the owner of certain land (the "West Mall Adjoining Parcel") containing
approximately 4.135 acres of land located in College Station, Brazos County, Texas, more
particularly described oil Exhibit B to this Agreement.
C. West Mall has agreed to grant an easement to Curtis to permit the flow of the storm water and
other drainage on, over, across, and under the West Mall Parcel.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises, the mutual covenants contained herein,
Ten Dollars ($10.00), and other good and valuable consideration, the parties hereto agree as follows:
1. West Mall hereby GRANTS, BARGAINS, SELLS, and CONVEYS unto Curtis for the benefit of
Curtis and the Curtis Parcel, a non-exclusive easement (the "Easement") upon, through and across
the portion of the West Mall Parcel described on the attached Exhibit C (the "Easement
Pro a for the purpose of the post-development storm water drainage and flow from the
Curtis Parcel onto, over, and across the Easement Property. Although the Easement contained
herein is non-exclusive, in no event shall West Mall grant any rights to any other person or entity,
or take any action with respect to the Easement Property, which would materially and adversely
affect Curtis's rights hereunder. The Easement granted herein shall be perpetual. The parties
acknowledge and agree that West Mall may alter the Easement Property and increase the size of
any drainage facilities located on the Easement Property provided such actions do not materially
and adversely affect Clutis's rights hereunder. The parties further acknowledge and agree that
West Mall may dedicate: all or a portion of the Easement Property to the City of College Station.
2. As a part of the Easement, Curtis shall be entitled to construct, reconstruct, and perpetually
maintain storm drainage facilities over, across, under, and upon the Easement Property. West
Mall further grants to Curtis the irrevocable right and privilege to grade and maintain the
Easement Property in connection with such drainage and runoff. Curtis shall at all times have the
right of ingress and egress to the Easement Property as necessary for operating, repairing,
maintaining, re-building, replacing, and removing any and all drainage facilities or for any other
purposes in connection with the Easement; provided that any drainage pipe constructed by Curtis
on the Easement Property shall have an appropriate headwall structure constructed consistent
with sound engineerin€, practice. Curtis will maintain such drainage facilities or grading, as
required by law.
Drainage Easement SRAZOS COUNTY ABSTRACT COMPANY
R-73621_5.DOC hereby certifies this to tae a true and correct
copy of th riginal inetrurnent
BR ABSTRACT COMPANY
BY
Doe Bk Va PQ
00857399 OR 60911 161
Prior to undertaking any activities on the Easement Property, Curtis shall give West Mall ten (10)
days written notice. Curtis agrees, in good faith, to coordinate its activities in the Easement
Property with West Mall and its development of the West Mall Parcel. Curtis agrees that all
construction and maintenance activities on the Easement Property will be performed in a good
and workmanlike manner and will be diligently prosecuted to completion within a reasonable
amount of time. Curtis agrees to restore the surface of the Easement Property as nearly as
possible to its preexisting; condition after performing any activities in the Easement Property.
4. The Easement shall be binding upon West Mall as owner of the Easement Property and its
successors and assigns a.s owner of the Easement Property and shall inure to the benefit of Curtis
as owner of the Curtis Parcel and its respective successors and assigns as owners of the Curtis
Parcel. It is expressly acknowledged that the Easement hereunder run with the Curtis Parcel and
the Easement Property, and shall benefit and be binding upon each successive owner during the
its ownership of all or any portion of such land. Any transferee of any of the Curtis Parcel or the
Easement Property shall automatically be deemed, by acceptance of the title thereto, to be bound
by all of the terms and conditions of this Agreement. It is contemplated that the Easement
Property shall be platted in connection with the development of the West Mall Adjoining Parcel.
No such plat may terminate, vacate, abandon, or otherwise impair the Easement or the Easement
Property unless Curtis or- the then-owner of the Curtis Parcel joins in the execution of such plat,
notwithstanding Section 5.01 of that certain Reciprocal Easement Agreement and Declaration of
Covenants and Restrictions dated on or about the date hereof concerning the Curtis Parcel and
West Mall Adjoining Parcel, in which Curtis grants Clark & Wyndham, Inc., a power of attorney
with respect to certain platting matters.
West Mall shall use conunercially reasonable diligence to cause any mortgage or deed of trust
granted by West Mall and affecting any portion of the Easement Property to be subject and
subordinate to the terms of this Agreement. Further, West Mall shall use commercially
reasonable diligence to cause any party foreclosing any such mortgage or deed of trust, or
acquiring title by deed in lieu of foreclosure, to acquire title subject to all of the terms and
provisions of this Agreement. West Mall represents to Curtis that, as of the date of this
Agreement, West Mall has not encumbered the West Mall Parcel with any mortgages or deeds of
trust.
6. Each party bound or benefited by this Agreement agrees, upon written request, that it will from
time to time furnish a written statement with reasonable promptness in recordable form on the
status of any matter relating to this Agreement.
7. None of the terms or provisions of this Agreement may be amended, waived, altered, modified, or
terminated except by an instrument in writing signed by the party against whom enforcement of
such amendment, waiver, alteration, modification, or termination is sought.
8. The invalidity, illegality, or unenforceability of any provisions of this Agreement shall not affect
the validity, legality, or enforceability of any other provision of this Agreement.
9. Nothing contained in this Agreement shall be deemed to be a gift or dedication of the Easement
Property or any portion thereof to any governmental authority or the general public, or for any
public use or purpose whatsoever, it being the intention and understanding of the parties hereto
that this Agreement shall be strictly limited to and for the purposes herein expressed.
10. This Agreement is binding upon and will inure to the benefit of the parties hereto and their
respective successors and assigns where not prohibited by this Agreement.
Drainage Easement
R-73621 S.D.OC
BILL A REIURN TO.
BRAZOS COUNTY ABSTRACT COMPANY
GF# ) q 1 D W ~
DEVELOPMENT AGREEMENT
(Private Driveway)
00857390 OR 60811 1769
This DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of June
1, 2004 ("Effective Date"), by and between CURTIS INVESTMENTS - COLLEGE STATION, LLC,
a Texas limited liability company ("Curtis") and CLARKE AND WYNDHAM, INC., a Texas
corporation, JPJ INVESTMENTS, a Texas joint venture, and REAL ALCHEMY I, L.P., a Texas
limited partnership, all of whom are doing business as a joint venture under the name WEST MALL
DEVELOPMENT (collectively, "West Mall"). Curtis and West Mall each are sometimes referred to as
an "Owner."
RECITALS:
A. Curtis is the owner of certain land (the "Curtis Parcel") containing approximately 1.683 acres of
land located in College Station, Brazos County, Texas, more particularly described on Exhibit A
to this Agreement.
B. West Mall is the owner of certain land (the "West Mall Adjoining Parcel") containing
approximately 4.135 acres of land located in College Station, Brazos County, Texas, more
particularly described on Exhibit B to this Agreement. The Curtis Parcel and West Mall
Adjoining Parcel each are sometimes referred to as a "Parcel."
C. Curtis has undertaken to construct a common access driveway between the Curtis Parcel and
West Mall Adjoining Parcel (the "Drive") on and over that portion of the Curtis Parcel and West
Mall Adjoining Parcel more particularly described on Exhibit C. The property encumbered by
the Drive is referred to as the "Drive Parcel."
D. Curtis desires to obtain certain construction access rights on the terms and conditions set forth
below.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises, the mutual covenants contained herein,
Ten Dollars ($10.00), and other good and valuable consideration, the parties hereto agree as follows:
Construction of Drive. Promptly after the date hereof, Curtis shall commence construction of
the Drive. Curtis shall complete construction of the Drive substantially in accordance with plans
and specifications to be prepared by Curtis and approved by Clarke & Wyndham, Inc., which
approval shall not be unreasonably withheld, conditioned, or delayed (the "Road Plan"). Curtis
shall cause the Drive to be designed in compliance with all applicable laws, ordinances, rules and
regulations for private road in College Station. The Drive shall be constructed of reinforced
concrete having a uniform minimum thickness of five (5) inches and in a good and workmanlike
manner using generally accepted construction standards. Curtis shall diligently pursue
construction of the Drive until completion. Curtis shall be solely responsible for the cost of the
construction and installation of the Drive in accordance with the Road Plan.
2. Deadlines and Completion Right. Curtis shall use commercially reasonable diligence to
substantially complete the Drive on or before the earlier of. (a) twelve (12) months after the
Effective Date; or (b) upon receipt of a certificate of occupancy from the City of College Station
for'the building to be constructed on the Curtis Parcel, subject to force majeure. If Curtis fails to
BWOS COUNTY ABSTRACT COMPANY
Development Agreement hereby certifies this to be a trae and CorW I
R-73390_4.DOC BR y Of a original Instrurnent"
TRACT COMPANY
BY
Doc Bk Vol Rg
00857390 OR 6081 177
meet the foregoing deadline, then West Mall may, but shall not be obligated to, notify Curtis in
writing that West Mall anticipates completing the Drive. If Curtis does not substantially
complete the Drive within 30 days after receipt of such notice, then West Mall may proceed to
complete the Drive provided it does so in strict accordance with the Road Plan (such right of
completion is referred -to as the "Completion Right"). If West Mall exercises the Completion
Right, after providing notice of its intention to do so to Curtis and after expiration of the 30-day
cure period, then Curtis shall reimburse West Mall on demand for all reasonable and necessary
third-party out-of-pocket costs incurred in connection with West Mall's completion of the Drive
in strict accordance with the Road Plan.
All sums due from Curtis to West Mall for the completion of the Drive which are not paid within
fifteen (15) days, including interest thereon, shall constitute a lien on the Curtis Parcel prior to all
other liens and encumbrances, except for: (a) all taxes and special assessments levied by
governmental and taxing authorities; and (b) all liens securing sums due or to become due under
any duly recorded third party mortgage vendor's lien or deed of trust. To evidence such lien
West Mall may but shall not be required to, prepare written notice setting forth the amount of
such unpaid indebtedness and a description of the Curtis Parcel. Such notice shall be signed by
West Mall and may be recorded in the Official Records of Brazos County, Texas. Such lien shall
attach from the date of the failure of payment of the construction costs. Such lien may be
enforced by foreclosure of the Curtis Parcel by West Mall. Any such foreclosure sale is to be
conducted in accordance with the provisions applicable to the exercise of powers of sale in
mortgages and deeds of trust, as set forth in Texas Property Code and Civil Practice and
Remedies Code of the 'State of Texas, or in any other manner permitted by Texas law. Curtis
expressly grants to West Mall a power of sale, as set forth in the Texas Property Code, in
connection with the lien. In any such foreclosure, Curtis shall be required to pay the costs and
expenses of such proceedings, the costs and expenses for filing the notice or claim of lien and all
reasonable attorney's fees. West Mall shall have the power to bid on the Parcel at foreclosure sale
and to acquire and hold, lease mortgage and convey same.
Temporary Access Easement. West Mall hereby grants and conveys unto Curtis, for the benefit
of Curtis, its agents, employees, customers, assigns and successors-in-interest, and the Curtis
Parcel, a non-exclusive easement over the Drive Parcel (and the other portions of West Mall
Adjoining Parcel, depicted on Exhibit "C" as the temporary construction area) for construction
activities and access and ingress to and from the Curtis Parcel until such time as the Drive is
completed, at which time the temporary access easement shall automatically terminate.
If West Mall exercises its Completion Right, Curtis hereby grants and conveys unto West Mall,
for the benefit of West Mall, its agents, employees, customers, assigns and successors-in-interest,
and the West Mall Adjoining Parcel, a non-exclusive easement over the Drive Parcel (and the
other portions of Curtis Parcel, depicted on Exhibit "C" as the temporary construction area) for
construction activities and access and ingress to and from the West Mall Adjoining Parcel until
such time as the Drive is completed, at which time the temporary access easement shall
automatically terminate.
4. Excusable Delays. Whenever performance is required of any Owner hereunder, that Owner shall
use all due diligence to perform and take all necessary measures in good faith to perform;
provided, however, that if completion of performance shall be delayed at any time by reason of
acts of God, war, civil commotion, riots, strikes, picketing, or other labor disputes, inclement
weather, delay in governmental approvals (provided such Owner has made all submissions and
taken such other action required to obtain such governmental approvals and the other Owner has
Development Agreement
R-73390 4.DOC
/siu 4 RETURN TO:
BRAZOS COUNTY ABSTRACT COMPANY
GF! 114 I0 8~ IAC~
06857388 OR 6081+ 13'u
RECIPROCAL EASEMENT AGREEMENT
AND
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS RECIPROCAL EASEMENT AND DECLARATION OF COVENANTS AND
RESTRICTIONS (this "Agreement") is entered into and effective as of the lst day of June, 2004, by and
between CLARKE AND WYNDHAM, INC., a Texas corporation ("C&W"); JPJ INVESTMENTS, a
Texas joint venture ("JPJ"); and REAL ALCHEMY I, L.P., a Texas limited partnership ("Real
Alchemy"); C&W, JPJ and Real Alchemy doing business as a joint venture under the name WEST
MALL DEVELOPMENT ("West Mall"), and CURTIS INVESTMENTS - COLLEGE STATION,
LLC, a Texas limited liability company ("Curtis").
RECITALS
A. Curtis is, or on even date will become, the owner of that approximately 1.68 acre parcel
of real property (the "Curtis Parcel'), being fully described on Exhibit "A".
B. West Mall is the owner of that approximately 4.135 acre parcel of real property adjacent
to the Curtis Parcel, being fully described on Exhibit "B" (the "West Mall Adjoining
Parcel').
C. By entering into this Agreement, the Parties desire to establish certain restrictions on the
Curtis Parcel. Further, each party desires to grant to the other certain reciprocal
easements in, to, over, under, and across the Drive (as defined herein).
THEREFORE, in consideration of the foregoing premises and the mutual agreements set forth
below, the parties agree as follows:
ARTICLE 1
DEFINITIONS
Access and Parking Areas Defined
1.01 The term "Access and Parking Areas" means the following portions of the Curtis -
Parcel-(a) the sidewalk located along Holleman Drive; and (b) the visitor parking areas located in front of the
building to be constructed on the Curtis Parcel (i.e., east of the building). The Access and Parking Areas
do not include: (x) any interior sidewalks or walkways serving the building; (y) any employee parking
areas located behind the building to be constructed on the Curtis Parcel (i.e., west of the building); and
(z) any area of the Curtis Parcel located within a 50-foot perimeter around the building to be constructed
on the Curtis Parcel.
Building Area Defined
1.02 The term "Building Area" means the limited areas of the Development within which
buildings (including canopies, supports, loading docks, truck ramps and other outward extensions,
pilasters and footings) may be constructed and are shown on any Site Plan submitted to, and approved in
writing, by West Mall. West Mall and Curtis may change the area, location, or dimensions of the
Building Areas within its respective Parcel from time to time and at any time upon notice to the other
delivered in strict accordance with Section 10.04 hereof, provided such changes do not materially
interfere with the use of the easements granted in this Agreement or other recorded easements benefiting
any Parcel or such other easements as may be reasonably delineated by C&W hereafter; provided,
however, any material change in the improvements on the Curtis Property or Site Plan for the Curtis
Property must be approved in writing by C&W and comply with all 016glbUffi"ABSTRACT COMPANY
REA and Declaration here4y ceM.fies thl8 0 bee true an COrieCt
R-73179 6.DOC Copy Of 0 glllal lnatrurfl0llt..
BR y G RACT COMPANY
BY
r
008 57388 OR 60181 1 137 9
1.14 The term "SubParcel" means any part or portion of the Curtis Parcel that the City and C&W
have approved for subdivision and building construction.
Utility Systems Defined
1.15 The term "Utility Systems" means, collectively, the following underground facilities and
systems: sewers; water and gas pipes and systems; drainage (including stormwater) lines and systems;
electric power conduits, wires and systems; and telecommunications conduits, fiber optics, wires and
systems.
ARTICLE 2
EASEMENTS
Ingress and Egress - Access and Parking Areas
2.01 Curtis, as grantor, grants to the West Mall, as grantee, a nonexclusive easement over the
Access and Parking Areas for reasonable pedestrian ingress and egress to and from -the West Mall
Adjoining Parcel, the City Parcel and Holleman Drive. West Mall shall not have any right to make any
improvements, installations, alterations, or other modifications to any portion of the Curtis Parcel that is
subject to the foregoing easement.
Ingress and Egress - Drive
2.02 Each Grantor, as grantor, grants to the other Grantor, as grantee, nonexclusive easements
over the Drive for reasonable motor vehicle ingress and egress to and from the Parcels, City Parcel and
Holleman Drive. Except as provided in Article 6, West Mall shall not have any right to make any
improvements, installations, alterations, or other modifications to any portion of the Curtis Parcel that is
subject to the foregoing easement.
Nature of Easements
2.03 Each easement granted in Sections 2.01 through 2.02 is appurtenant to and for the benefit of
the Grantors' Parcels benefited thereby, as applicable, and their respective Occupants, tenants, successors,
assigns, business invitees and guests. Each Grantor, as the grantor of an easement who is burdened
thereby, on behalf of itself and its successors and assigns, subject to all matters of record as of the date
hereof, is and shall be bound to warrant and forever defend the easements herein granted to the other
Grantor, its successors and assigns, against every person lawfully claiming or to claim the same or any
part thereof, by, through or under Grantor, but not otherwise. No easement herein granted may be
transferred, assigned, or encumbered except as appurtenant to the Grantors' Parcels. The easements
herein granted are nonexclusive, and each Grantor reserves and retains the right to convey similar
easements to such other Persons as such Grantor may deem proper, as long as such similar easements do
not interfere with the easements herein granted. Subject to Section 6.03 hereof, each Party agrees to
defend, indemnify and save the other Parties harmless against and from all claims, loss, damages, costs
and expenses, including reasonable attorney's fees, because of bodily injury or death of persons or
destruction of property resulting from or arising out of such Party's use of its Parcel or the easement areas
or any other Party's Parcel except to the extent caused by the acts or omissions of any of the other Parties.
Expansion of Drive
2.04 West Mall, at its expense, may expand the width of the Drive, and such expansion shall be
located solely on the West Mall Adjoining Parcel (but not the Curtis Parcel); provided, however, such
expansion shall not unreasonably interfere with the development or use of or access to the Curtis Parcel.
West Mall shall bear all costs of expanding the Drive and undertaking all related activities, including
relocation of lighting, landscaping and signs. West Mall will, at its expense, obtain a legal description of
expanded Drive and cause an amendment to this Agreement to be prepared. Curtis agrees to promptly
REA and Declaration
R-73179 6.DOC
00857388 OR 60811 138 9
execute such amendment to the extent the same is in form and substance reasonably acceptable to Curtis.
West Mall will coordinate the construction activities associated with the expansion with Curtis to
minimize the impact of the construction on the use of the Curtis Parcel. All work performed by West
Mall on the Drive shall be in a good, workmanlike manner, in accordance with City requirements, and
free of liens. West Mall shall indemnify, defend, and hold the owner of the Curtis Parcel harmless from
and against any and all injury to person or damage to property arising in connection with such work. No
expansion of the Drive will result in an increase in common maintenance costs payable by Curtis.
Location of Utility Systems
2.05 Except when not feasible, as reasonably determined by Grantors, all Utility Systems on the
Parcels must be located underground, unless otherwise approved by C&W.
ARTICLE 3
OPERATIONS AND USE
Permitted Uses of Curtis Parcel
3.01 Without the prior written consent of C&W which consent may not be unreasonably
withheld or delayed, the Curtis Parcel may be used only for commercial uses permitted by applicable law,
subject to Section 3.02 or office and retail uses permitted by applicable law, subject to Section 3.02.
Prohibited Use of Curtis Parcel
3.02 The Curtis Parcel may not be used for retail sales of western wear. The Curtis Parcel may
not be used for a bowling alley, skating rink, massage parlors, card rooms, nightclub, theater, church
(without C&W's written approval), day care, school (private or public), adult entertainment facilities,
adult bookstores, adult video stores or any other use that emits excessive light or sound outside the
building area.
Prohibited Nuisances
3.03 No Party may conduct or permit any activity or use on its Parcel that constitutes a private or
public nuisance or violates (i) any law, ordinance, rule, or regulation of any governmental body, or (ii)
any covenant or restriction of record in the Official Records of Brazos Cniinty_
Mechanical Equipment; Trash Receptacles
3.04 All mechanical equipment and refuse receptacles on the Parcels shall be screened from view
and in a manner reasonably acceptable to C&W.
ARTICLE 4
DEVELOPMENT STANDARDS
Plan Approved
4.01 A primary purpose of this Agreement is to create and implement a complementary plan for
the Development to ensure that all development is functionally, architecturally, and aesthetically
compatible with other buildings and improvements in or to be developed in the Development
("Compatibility Standard"). Therefore, all new construction, reconstruction, changes in heights of
buildings and improvements, exterior alterations, or exterior remodeling on the Curtis Parcel must comply
with all terms, covenants, and conditions of this Agreement.
C&W hereby approves development of the Curtis Parcel substantially in accordance with: (a) the site plan
for the Curtis Parcel ("Approved Site Plan") prepared by CSC Engineering & Environmental Consultants,
REA and Declaration
R-73179 6.DOC
4
/ 00857388 OR 6091" 143
Failure to Maintain Drive
6.04 If a Grantor does not perform the required maintenance and repair of the portion of the Drive
on its Parcel, then any other Grantor, after giving the non-performing Grantor thirty (30) days written
notice, will have the right to perform the maintenance and receive reimbursement from the non-
performing Grantor. Reimbursement will be payable on demand and include the costs of the
maintenance, plus interest at the lesser of (i) Prime Rate plus two percent (2%) per annum or (ii) the
highest lawful rate, from such date until paid. The non-performing Grantor shall reimburse the
performing Grantor for the repair and maintenance costs within fifteen (15) days of demand.
All sums due for maintenance costs from the non-performing Grantor to the other which are not
paid within fifteen (15) days, including interest thereon, shall constitute a lien on such non-performing
Grantor's Parcel prior to all other liens and encumbrances, except for: (a) all taxes and special
assessments levied by governmental and taxing authorities; and (b) all liens securing sums due or to
become due under any duly recorded third party mortgage vendor's lien or deed of trust. To evidence
such lien the non-defaulting Grantor may but shall not be required to, prepare written notice setting forth
the amount of such unpaid indebtedness, the name of the owner of the Parcel and a description of the
Parcel. Such notice shall be signed by the non-defaulting Grantor and may be recorded in the Official
Records of Brazos County, Texas. Such lien for the maintenance expenses shall attach from the date of
the failure of payment of the expenses. Such lien may be enforced by foreclosure of the defaulting
Grantor's parcel by the non-defaulting Grantor. Any such foreclosure sale is to be conducted in
accordance with the provisions applicable to the exercise of powers of sale in mortgages and deeds of
trust, as set forth in Texas Property Code and Civil Practice and Remedies Code of the State of Texas, or
in any other manner permitted by Texas law. Each Grantor, by accepting a deed to its parcel, expressly
grants to the non-defaulting Grantor a power of sale, as set forth in the Texas Property Code, in
connection with the lien. In any such foreclosure, the Party shall be required to pay the costs and
expenses of such proceedings, the costs and expenses for filing the notice or claim of lien and all
reasonable attorney's fees. The non-defaulting Grantor shall have the power to bid on the Parcel at
foreclosure sale and to acquire and hold, lease mortgage and convey same.
Any lien created, provided for or implied pursuant to this Agreement shall be subordinate and
inferior to any mortgages or duds of trust of record or any rena~z~al~ avtenginn of nn~r~;fi~ati~n_ rin~lydin••
increases) of such recorded mortgages or deeds of trust, and any purchaser at any foreclosure sale (as well
as any grantee by deed in lieu of foreclosure) under any such mortgage or deed of trust such shall take
title subject only to liens accruing pursuant to this Agreement after the date of such foreclosure sale or
conveyance in lieu of foreclosure. Furthermore, the right of possession and leasehold interest or tenancy
of any tenant or subtenant of any tract encumbered by any lien accruing pursuant to this Agreement shall
not be terminated, affected or disturbed by such lien or any foreclosure thereof.
Easement for Protrusions.
6.05 If the construction of the Drive (or any subsequent re-paving or reconstruction of the Drive)
within, or substantially within, the real property encumbered by the Drive ("Drive Parcel") results in a
protrusion of roadway building materials into adjacent portions of the Parcels, Grantors hereby declare,
for the benefit of the Parties and other future owners of portions of the Development, a non-exclusive
easement (the "Protrusion Easement") on, through, over, under, and across the area of such protrusion, not
to exceed six inches from the edge of the Drive Parcel, in the case of the surface paving or curb, and
twelve inches from the edge. of the Drive Parcel in the case of the subgrade materials. The Protrusion
Easement shall be appurtenant to each Parcel. The Protrusion Easement shall continue until such time as
the Drive is repaved, at which time the paving contractor shall be instructed to move the Drive back into
the Drive Easement (although the Protrusion Easement shall apply to building materials that protrude
PEA and Declaration 9
R-73179 6.DOC