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RECEPTION ##: 2524166, BK 4981 PG 844 02/23/2010 at 10:04:01 AM, 6 OF 53, R <br />$265.00 S $1.00 EXEMPT Janice Rich, Mesa County, CO CLERK AND RECORDER <br />6.3 South Easement. Fruita does hereby reaffirm all of the terms and <br />provisions of the South Easement. Fruita agrees that it will cause the South Easement to be <br />equal to a width of not less than thirty (30) feet in connection with Fruita's land use application <br />with the City of Fruita for a zone change and/or other land use approval. Tavistock agrees that <br />the South Easement shall be non - exclusive and at the time when and on condition that Fruita <br />dedicates the land the South Easement encompasses to the City of Fruita as a public road not less <br />than thirty (30) feet in width, or as a private road of the same width that can be used by <br />Tavistock to the same extent and degree as the existing South Easement, then Tavistock will <br />vacate all rights to the South Easement. Tavistock may, prior to vacating its rights as detailed in <br />the sentence above, in its sole and absolute discretion and its sole cost and expense, without any <br />obligation hereunder or under the South Easement to do so, make improvements to the South <br />Easement, including, but not limited to, laying asphalt or building a new road or installing an <br />underground electrical utility line on such area, which utility line Tavistock will commence <br />removing and diligently pursue removal and restoration of the surface to completion within thirty <br />(30) of the request of Fruita, weather and ground conditions permitting, if the South Easement is <br />vacated. <br />7. Retained Rights; Waiver of Compliance. Wherever it appears in this Agreement <br />that Tavistock or Fruita has the right to waive compliance with certain provisions, the right to <br />approve or deny certain matters or the right to exercise its discretion in various areas, these rights <br />of Tavistock and Fruita are expressly reserved or retained by Tavistock and Fruita, and all of the <br />provisions of this Agreement are subject to the retained and reserved rights of Tavistock and <br />Fruita. <br />8. Running with the Land. Tavistock and Fruita hereby declare that the Tavistock <br />Parcel and the Fruita Parcel are now held, and shall hereafter be held, conveyed, leased, <br />occupied, operated and used, subject to the easements, conditions, covenants and agreements <br />herein set forth, each and all of which are for, and shall inure to, the benefit of and pass with <br />each and every part of the Tavistock Parcel and the Fruita Parcel and shall apply to and bind their <br />respective heirs, successors and assigns. <br />9. Paragraph Headings. Paragraph headings, where used herein, are inserted for <br />convenience only and are not intended to be a part of this Agreement or in any way to define, <br />limit or describe the scope and intent of the particular paragraphs to which they refer. <br />10. Effect of Invalidation. If any provision of this Agreement is held to be invalid by <br />any court, the invalidity of such provision shall not affect the validity of the remaining provisions <br />of this Agreement and all remaining provisions shall continue unimpaired, in full force and <br />effect. <br />11. Remedies. Any party benefited by the terms and provisions of this Agreement <br />shall have the right to seek and obtain injunctive or other equitable relief to prevent or restrain a <br />violation of such terms and provisions, and in addition to or in lieu thereof, they may also seek to <br />collect actual (but not punitive, speculative or contingent) damages for any such violation. <br />12. Attorneys' Fees. In the event of any litigation in connection with this Agreement, <br />the prevailing party shall be entitled to recover all reasonable costs in connection therewith, <br />