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HomeMy WebLinkAbout20240308000604 Grant of Easement for Wi-Fi AtennaInstrument Number: 20240308000604 Document:EAS Rec: $313.50 Page -1 of 11 Record Date:3/8/2024 2:17 PM Electronically Recorded King County, WA EXCISE TAX NOT REQUIRED BY HOLLY FERGUSON, DEPUTY This document filed for record by Fidelity National Title Major Accounts as An accommodation only. It has not been Examined as to it's effect on the title. AFTER RECORDING RETURN TO: City of Auburn City CIerk 25 W. Main Street Auburn., WA 98001 Document Title: Easement for Wi-Fi Antenna owned by City of Auburn Grantor(s): MSRE Apartment, LLC, a Washington limited liability company Grantee(s): City of Auburn, a Washington municipal corporation Abbreviated Legal Description: SW 1/4 S18 T21N R5E• PINS LOTS 3A5 5 RIVER VIEW ADD TO AUBURN. Full Legal Description: Exhibit A attached hereto Assessor's Property Tax Parcel No(s): 73-3140-0055 Auditor's Reference Nos.: GRANT OF EASEMENT FOR W1 -FI ANTENNA For and in consideration of certain mutual promises and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, MSRE Apartment, LLC, a Washington limited liability company (the "Grantor"), conveys and warrants to the CITY OF AUBURN, a municipal corporation of the State of Washington (the "Grantee" or the "City"), its successors and assigns, a perpetual nonexclusive easement (the `Basement") in gross over and across the following described real property for the purposes of installing, maintaining and repairing wireless antennae communications ("wi-fi") equipment, appurtenances, and wi-fi infrastructure (collectively, the "Facilities"), all subject to the terms set forth below and which shall become effective immediately upon being properly recorded in the Office of the King County Recorder (the "Easement Agreement"). The Grantor and Grantee hereby agree as follows: 1. RECITALS 1. The burdened real property is an apartment building located at 128 E Main Street, Auburn, Washington, King County Tax Parcel ID No. 73-3140-0055, and more fully described in EXHIBIT A attached hereto (the "Property"). 2. Grantee's rights shall be exercised upon that portion of the Property consisting of two (2) areas each measuring three -feet by three -feet at the rooftop level (above Level 7) of the multi -story AFTER RECORDING RETURN TO: City of Auburn City Clerk 25 W. Main Street Auburn, WA 98001 Document Title: Easement for Wi-Fi Antenna owned by City of Auburn Grantor(s): MSRE Apartment, LLC, a Washington limited liability company Grantee(s): City of Auburn, a Washington municipal corporation Abbreviated Legal Description: SW 1/4 S18 T2 IN R5E: PTNS LOTS 3,4 ,5 RIVER VIEW ADD TO AUBURN. Full Legal Description: Exhibit A attached hereto Assessor's Property Tax Parcel No(s): 73-3140-0055 Auditor's Reference Nos.: GRANT OF EASEMENT FOR WI -FI ANTENNA For and in consideration of certain mutual promises and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Grantor, MSRE Apartment, LLC, a Washington limited liability company (the "Grantor"), conveys and warrants to the CITY OF AUBURN, a municipal corporation of the State of Washington (the "Grantee" or the "City"), its successors and assigns, a perpetual nonexclusive easement (the "Easement") in gross over and across the following described real property for the purposes of installing, maintaining and repairing wireless antennae communications ("wi-fi") equipment, appurtenances, and wi-fi infrastructure (collectively, the "Facilities"), all subject to the terms set forth below and which shall become effective immediately upon being properly recorded in the Office of the King County Recorder (the "Easement Agreement"). The Grantor and Grantee hereby agree as follows: RECITALS 1. The burdened real property is an apartment building located at 128 E Main Street, Auburn, Washington, King County Tax Parcel ID No. 73-3140-0055, and more fiilly described in EXHIBIT A attached hereto (the "Property"). 2. Grantee's rights shall be exercised upon that portion of the Property consisting of two (2) areas each measuring three -feet by three -feet at the rooftop level (above Level 7) of the multi -story structure (the "Divine Court Building"), located at the outermost northeast and northwest corners, of the Divine Court Building (as titled on the approved City Building Permit plans, City File No. BLD19-0154, the "Building"), as illustrated on the Wi-Fi Antenna Easement Roof Plan attached hereto as EXHIBIT B. The two (2) identified rooftop locations shall be hereinafter collectively referred to as the "Easement Areas." II. GRANT AND AGREEMENTS 1. Purpose: Grantee shall have the right to use each of the Easement Areas at the Property to install, operate, maintain, repair, replace, improve and remove the Facilities thereof, subject to the terms of this Easement Agreement. 2. Connections: Grantee shall have the right to install, operate, maintain, repair, replace, improve, monitor and remove communications and electrical cables and other equipment needed to support and connect to the wi-fi equipment and appurtenances installed at the Easement Areas (collectively, the "wi-fi infrastructure") so long as said wi-fi equipment and appurtenances are located within the Easement Area and do not penetrate the roof structure. Grantor shall provide Grantee (i) access to 120 V electrical service and provide a path for electrical cables to connect to the wi-fi equipment, and (ii) access to electrical panels as needed. Electrical power for the operation of the wi-fi equipment shall be at Grantee's expense. Any electrical cabling and power shall be secured such that the Facilities or the wi-fi infrastructure are not damaged by other activities on the roof of the Building. The Facilities shall remain the exclusive property of Grantee and shall not be considered fixtures. 3. Grantor Approvals Needed: Notwithstanding any other provision of this Easement Agreement, Grantee shall have no right to install any Facilities or make any use, adjustment, alteration or improvement of the Property until Grantee shall have obtained Grantor's written approval of Grantee's installation drawings for the Facilities (the "Facilities Installation Drawings"), which approval shall not be unreasonably withheld. Notwithstanding the foregoing, Grantor may hire an independent engineer to review and approve of the Facilities Installation Drawings and confirm that the construction details meet with Grantor's reasonable requirements including attachment, penetration and water proofing details; provided, however, that Grantor approval shall not be required for any subsequent modifications to Grantee's Facilities so long as the modifications: (i) do not require any additional roof penetrations, (ii) do not materially change the aesthetic appearance of the Building, as viewed from the street level or neighboring buildings, and (iii) do not increase the Easement Areas utilized by Grantee. Modifications that propose to penetrate the roof or add square footage to the Easement Area shall require Grantor's prior written consent in the form of an amendment to this Easement Agreement executed by both Grantor and Grantee. 4. Access: Grantee shall have the right to enter upon the Property to access the easement areas and to access areas housing wi-fi infrastructure at reasonable times to exercise the Grantee's rights under this Easement. The term "reasonable times" shall mean between the hours of 9 a.m. and 5 p.m. during Monday through Friday, excluding holidays. Access to the Property shall be limited to only those portions necessary to access the Easement Areas, the wi-fi infrastructure and the electrical service panels inside the Building. Unless waived by Grantor, Grantee shall notify 2 Grantor at least 24 hours prior to entering the Property for the purpose of installing, maintaining, monitoring or repairing the Facilities. Such notice may be made orally or in writing directly to the on-site property manager at the Building, and shall describe the purpose of the access and the anticipated duration. Notwithstanding the foregoing, in the event of an emergency involving the provision of communications services from the Easement Areas, which affects or threatens to affect the public health and welfare, Grantee may enter the Property as reasonably necessary, at any hour without prior notice to inspect, repair or replace the Facilities . All access to the Easement Areas shall be subject to the reasonable security requirements and rules and regulations of the Divine Court Apartments. All access shall be accomplished in such a manner as to reasonably avoid or minimize any disturbance to the residents of the Divine Court Apartments and shall be coordinated with the on-site property manager at the Building. In the event Grantee or Grantee's agents, subcontractors or personnel cause damage to the Property, Grantee shall restore the Property to the condition the Property was in immediately prior to such damage. 5. Improvements by Grantor: Grantor, and its heirs, successors and assigns shall not place, install or construct any temporary or penuanent structures in or upon the Easement Areas unless specifically approved by the City's Director of Innovation and Technology, or such other designee. Such approval (if applicable) shall be documented as an Addendum to this Easement Agreement and executed by the parties. 6. Work to be Performed by Grantor on Grantor's Roof. For any non -emergency work on the roof that Grantor needs to accomplish, Grantor shall provide Grantee with at least two (2) months written notice of any repairs, maintenance or other work (the "Grantor's Roof Work") which would require the temporary relocation of the Grantee's Facilities. In an emergency situation which involves immediate risk of harm to the Building or to any of Grantor's residents, Grantor shall provide notice to Grantee immediately. Grantee or its designee shall have the right to accompany Grantor, its agents or contractors whenever the Grantor's Roof Work is being performed on the Property. Grantee shall cooperate with Grantor to accommodate the Roof Work on Grantor's schedule and by moving Grantee's Facilities at Grantee's expense, which expense shall include, but not be limited to raising the equipment and installing temporary equipment as provided herein. If necessary, Grantor shall permit Grantee to install a temporary communications facility (e.g., a "cell on wheels" or "COW") in another inutually agreeable location on the Property that provides Grantee coverage and service levels similar to those of the Facilities at the original location of the Easement Areas, while the Grantor's Roof Work is being performed. Grantee shall have the right to reinstall its Facilities immediately upon the completion of the Grantor's Roof Work. Notwithstanding the foregoing, any moving of or relocating the Grantee's Facilities shall be performed by a qualified contractor, approved by both Grantee and Grantor. In addition, Grantee shall not penetrate Grantor's roof under any circumstances, unless such penetration is done by a waterproofing envelope roofing contractor approved by Grantor, pursuant to plans approved by both parties, adheres to the roofing penetration requirements as set by the roofing material manufacturer and as detailed by Grantor's Building envelope consultant (the "Grantor Approved Grantee Roof Work"). Any roof work performed by Grantee or its agents or contractors (the "Grantee's Work") that is not Grantor Approved Grantee Roof Work may void the current roof material and/or waterproofing product warranty issued to Grantor and may result in water intrusion damage within the Building. Accordingly, any Grantee's Work performed which 3 is not Grantor Approved Grantee Roof Work. may constitute a material default under this Easement Agreement. Any damage or non -conforming work shall be restored corrected by Grantor approved contractors and the repair work shall include, but not be limited to, inspection and certification from the roof material and/or waterproofing product manufacturer, reinstatement of the roof material and/or waterproofing product warranty as currently issued from the manufacturer to Grantor. To the extent the costs associated with any such damage or non -conforming work are not reimbursed to Grantor by Grantee's insurance carrier, Grantee shall be solely responsible for reimbursing Grantor for all costs associated. with the damage caused by Grantee's Work or Grantee's equipment, whether such damage was caused by Grantor Approved Grantee Roof Work or not, including, but not limited to, costs to repair to the roof or any affected portion of the Building and any legal fees, consultant fees, and relocation, or concession costs. Grantor reserves the right to conduct inspections prior to the covering up of any roof work conducted pursuant to Grantor Approved Grantee Roof Work and Grantee shall coordinate with Grantor accordingly to accomplish such timely inspections. 7. Indemnification: Grantee hereby agrees to indemnify Grantor against and hold Grantor harmless from any and all liabilities, losses, claims, damages, costs or expenses, including, without limitation, reasonable attorney's fees and costs arising out of Grantee's use of the Easement Areas, Grantee's breach of any material term or condition of this Easement Agreement, or from the negligence or willful misconduct of the Grantee, its agents, employees, contractors or invitees in or about the Property; provided, however, that the Grantor shall not be indemnified for any such liabilities, losses, claims, damages, costs or expenses which are a result of its sole negligence or willful misconduct. 8. Dedications: The provisions of this Easement Agreement shall not be deemed to constitute a dedication for general-purpose public use nor create any rights in favor of the general public. 9. Amendments: This Easement Agreement may not be modified in any respect whatsoever, or terminated, in whole or in part, except by written instrument executed by the parties or, if applicable, their successors, assigns, heirs and personal representatives, in the Official Records of King County, Washington. 10. Binding on Successors: The terms and conditions of this Easement shall constitute real covenants that run with the land and are binding upon the Grantor's heirs, successors and assigns. Grantee shall have no right to assign this Easement Agreement. 11. Complete Agreement: This Easement Agreement, together with all exhibits, constitutes the complete and final agreement of the parties, replaces and supersedes all oral and/or written proposals and agreements made on the subject matter of access granted to the City for rooftop Wi- Fi equipment, and may only be modified by a written instrument agreement executed by both parties and recorded in the Official Records of King County, Washington. 12. Insurance: Grantee shall comply with the insurance requirements set forth in EXHIBIT C attached hereto and incorporated herein by this reference. 0 13. Notices: All notices, requests, demands and other communications shall be in writing and shall be effective five (5) business days after deposit in the U.S. mail, certified, return receipt requested or upon receipt if personally delivered or sent via a nationally recognized courier to the addresses set forth below. Grantor and Grantee may from time to time designate any other address for this purpose by providing written notice to the other party. To Grantor: MSRE Apartment, LLC c/o MS Real Estate 334 Wells Ave South, Suite G Renton, WA 98057 Attn: Melina Lin To Grantee: City of Auburn 25 West Main Street Auburn, WA 98001-4998 Attn: Jeff Tate 14. Interference: Grantee shall operate the Facilities in compliance with all applicable laws and Federal Communications Commission ("FCC") requirements including those prohibiting interference to communications facilities of Grantee or other licensees on the Property. Grantor hereby discloses to Grantee that there are other providers of telecommunications and internet services who have or will have equipment installed in the Building. Grantee agrees not to cause interference to the operations of any of these other service providers. In the event Grantee or Grantee's equipment does cause interference, Grantee agrees to use commercially reasonable efforts to eliminate such interference within 72 hours of receipt of notice of such interference. 15. General Provisions: (a) Any provisions of this Easement Agreement which shall prove to be invalid, void or illegal, shall in no way affect, impair or invalidate any other provisions hereof and such other provisions shall remain in full force and effect. (b) This Easement Agreement shall be construed in accordance with and governed by the laws of the State of Washington. (c) This Easement Agreement may be executed in counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute one agreement. (d) In the event any action is instituted with respect to the subject matter of this Easement Agreement, the party prevailing in such action, whether by final judgment or out of court settlement, shall be entitled to recover from the other party thereto reasonable attorneys' fees and costs of such action. (e) Failure to enforce any covenant, condition, easement or restriction contained herein or in any certain instance or on any particular occasion shall not be deemed to be a waiver of such 5 rights on any such future breach of the same of any other covenant, condition, easement or restriction. (g) The provisions of this Easement Agreement shall be liberally construed to effect its intended purpose. The section headings have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction. S -r DATED Effective this 3 day of December, 2023. [The remainder of this page is intentionally left blank. The executing signatures of the parties are on the following signature pages.] M MSRE Apartment, LLC Its: Managing Member By: Melina Lin, Manager STATE OF WASHINGTON GRANTOR'S SIGNATURE PAGE :ss COUNTY OF KING II ) n4 ON THIS 2 Day of 7a n mk , 20 before me, personally appeared Melina Lin Ap, to me known to be the Manager of MSRE artment. LLC, who executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of the Grantor for the uses and purposes therein mentioned, and acknowledged under oath that he is authorized to execute the foregoing instrument on behalf of the Grantor. WITNESS my hand and official seal hereto the day and year in this certificate first above written. RUIRU WU Notary Public State of Washington Commission # 20114411 My Comm. Expires Jul 6, 2024 WU T2 - Notary Public in and for the State of Washington, residing at W A c p My Appointment Expires a Z 7 GRANTEE'S SIGNATURE PAGE CITY OF AUBU By: _....__ Print Name: Jeff Tate Title: Director, Department of Community Development STATE OF WASHINGTON ) ) :ss COUNTY OF KING ) if -FF ON THIS 1 gt� Day of J^A w u ARy 202Y,before me, personally appeared J f - F F T AP F— to me known to be the Dit*ct oR , cannumj r`1 bey. of the Cijy of Auburn, a Washington municipal corporation, who executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of the Grantee for the uses and purposes therein mentioned, and acknowledged tinder oath that he/she is authorized to execute the foregoing instrument on behalf of the Grantee. � WITNESS my has did c 1111111.1j"Al 1 hereto the day and year in this certificate first above written. O� . my comm. Eon s - owe,. 7> =g august 15, 2024 = NotaPublic 'h—Ad for the State of Washington, residing N;A S No. 13603 2 at 71 R c R -E VT , w A AVBL My Appointment Expires Av G u S"i 1 S + a, o 4 AWASt'`��1�°• EXHIBIT A Legal Description THAT PORTION OF LOTS 4,4 AND 5, RIVER VIEW ADDITION TO AUBURN ) ACCORDING TO THE- PLAT THEREOF, RECORDED IN VOLUME 9 OF PLATS, PAGE, 90, IN KING COUNTY, WASHINGTON, DESCRIBED AS FOLLOWS: BEGINNING ATASTONE MONUMVNT ON THE CENTERLINE OF EAST MAIN STREET "FORMERLY FIRST STREIT"WHICH' IS A MORE WESTERLY OF TWO STONE MONUMENTS AT THE INTERSECTION OF EAST MAIN STREET "FORMFRLY FIRv STREET" AND SOUTH "A" STREET "FORMERLY MAIN STREET,' IN THE CITY OF AUBURN, BOTH. OF WHICH ARE RECOGNIZED BY THE CITY OF AU8URN AS OUARTER CORNERS, THENCE NORTH 86'56'30" EAST 139.5 PEETALONG THE CFNTERLINE OrSAID FAST MAIN STREET, THCNCE SOUTH 30.05 rELTTO THE TRUE POINT OF BEGINNING, WHICH POINT IS SITUATED 6 INCHES WEST OF THE -EASTSWC CJI~ TH.E' EAST WALL OF TIME ADIE BUILDING, THENCE SOUTH PARALLELTO SAID EAST WALL, 100 FEET; THENCE NORTH 86-56,301, EAST PARALLrL TO THE CENTERLINE OF SAID mv MAIN STREET, 120 FEET; THENCE NORTH PARALLEL TO THE EAST WALL OP SAID ADIE BUILDING 100 FEET, THENCE SOUTH 86"56'3W WEST ALONG THE PROPERTY LINE 30 FEET SOUTH OF THE CENTERLINE OF EAST MAIN STREET, 120 FEET To THE TRUE POINT OF BIZ61NNING, SITUATE.W THE CITY OF AUBURN, COUNtY OF KING, STATE OF WASHINGTON (LEGAL DESCRIPTION FROM FIRSTAMERICAN TITLE INSURANCE COMPAMYALTA COMMITMENT FILE NO. NCS -943856 --WAS. DATED JANUARY 16, 2019) 0 Instrument Number: 20240308000604 Document:EAS I2ee: $313.50 Page -10 of 11 Record Date:3/8/2024 2:17 PM King County, WA EXHIBIT B Wi-Fi Antenna Easement Roof Plan 10 Z Q Q EXHIBIT C Insurance Requirements Grantee shall maintain and shall cause its subcontractors to maintain in fiill force and effect, at all times during the term of this Easement Agreement, the following insurance: (1) Worker's Compensation Statutory Bodily Injury by Accident or Disease (2) Employer's Liability Coverage Limits: $1,000,000 Bodily Injury by Accident — Each Accident $1,000,000 Bodily Injury by Disease — Policy Limit $1,000,000 Bodily Injury by Disease — Each Employee (3) Commercial General Liability — Bodily Injury, Personal Injury, and Property Damage Coverage limits: $2,000,000 General Aggregate $1,000,000 Personal Injury $1,000,000 Each Occurrence General Liability shall be written on an industry standard Commercial General Liability Occurrence Form (CG 00 01 or equivalent) (4) Stop Gap Liability (Re: Employer's Liability) $1,000,000 Each Accident $1,000,000 Disease — Policy Limit $1,000,000 Disease — Each Employee (5) Automobile Liability • Coverage Limit: $1,000,000 Bodily Injury and Property Damage —Combined single limit • Tenant's Auto Liability insurance shall be written on an industry standard Business Auto Liability policy form and should include coverage for owned, non -owned, and hired autos. (6) All Risk property insurance which insures the insuring party's personal property and leasehold improvements for its full replacement value. Grantee's General Liability Insurance shall be primary as respects Grantor, and any other insurance maintained by Grantor shall be excess and not contributing insurance with Grantee's insurance, and shall include a waiver of subrogation in favor of the Grantor and the Property Manager. Grantee shall provide Grantor with valid certificates of insurance evidencing the minimum coverages specified in this Exhibit and verifying inclusion of the following additional insureds: (i) MSRE Apartment, LLC, c/o MS Real Estate at 334 Wells Ave South Renton, Suite G, WA 98057; and (ii) Cashmere Valley Bank, 127 W Yakima Ave Yakima, WA 98902 All certificates shall be issued prior to Grantee's entry onto the Property. Such certificates shall include the name and address of the property: Divine Court Apartments, 128 E Main St, Auburn, WA 98002. Endorsements must be attached to the certificate upon issuance of the endorsements. 11