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HomeMy WebLinkAbout957787Prepared by: Capitol Infrastructure, LLC d/b /a Connexion Technologies 111 Coming Road, Suite 250 Cary, NC 27518 STATE OF WYOMING COUNTY OF LINCOLN RECEIVED 1/25/2011 at 12:27 PM RECEIVING 957787 BOOK: 761 PAGE: 362 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY C&362 Return to after recording: Asher Munger Capitol Infrastructure, LLC d/b /a Connexion Technologies 111 Corning Road, Suite 250 Cary, NC 27518 EASEMENT AND MEMORANDUM OF AGREEMENT 1. Grant of Easement. In consideration of $10.00, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, and in consideration of Capitol Infrastructure, LLC "CI a North Carolina limited liability company, having entered into a Master Community Infrastructure Agreement with Grantor (the "Agreement dated of even date herewith, the undersigned "Grantor grants to CI, its successors and assigns and their designees and licensees (together, "Grantee subject to any prior easements of record, an easement on Grantor's property and all its improvements identified as FOOTHILLS and as described in the attached Attachment I to this Agreement (the "Property as follows: 2. Definitions. The following definitions shall apply: Multi- Channel Video Services. "Multi- Channel Video Services" means the package of multi channel cable television and other video and/or -sound services, provided over the Infrastructure (e.g., the basic, premium, and pay per -view services, whether analog or digital) offered by multi channel video service providers generally to customers in the area where the Property is located (the "Area Voice Services. "Voice Services" means local voice telecommunications services, delivered within the Property in whole or in part via wired or cable transmission, provided by local exchange carriers (LECs) or competitive local exchange carriers (CLECs), as well as long distance voice telecommunications services provided by interexchange carriers (IXCs), or by resellers of the same. Voice Services may include voice over internet protocol "VOIP Data Services. "Data Services" means data transmission, including but not limited to connectivity with the internet using internet protocol (IP) or the equivalent or successor protocol via wired Ethernet, wireless (802.11) transmission or other transmission media or protocol. Satellite Video Services. "Satellite Video Services" means video and /or -sound services (e.g., the basic, premium, and pay per -view services, whether analog or digital) offered by any and all direct broadcast satellite video providers in the United States, two examples of which are DirecTV and Dish Networks. OOv 363 Additional Services. "Additional Services" means any services other than the Multi Channel Video Services, Voice Services, Data Services and Satellite Video Services that can be provided over the Infrastructure. Infrastructure. "Infrastructure" means internal (other than within a single family detached home or town house) and external wiring, cables, poles, conduits, molding, pipes, antennas, transmitters, receivers, servers, switch equipment, software, edge equipment, central processing units, audio, video or information servers, satellite earth stations, electrical connections, one or more equipment rooms and/or equipment cabinets with space sufficient for the installation, operation and maintenance of equipment room or equipment cabinet equipment and termination of transmission lines, and other facilities and equipment for the provision and delivery of Services. Services. "Services" means the Multi Channel Video Services, Voice Services, Data Services, Satellite Video Services and Additional Services, each as more particularly defined above. 3. Blanket Easement. Grantee, its successors, assigns, designees and licensees is hereby granted and shall retain an easement on, over, under and through all of the Property, with infrastructure location subject to Owner's reasonable approval to (i) sell, market and provide Services, and (ii) design, construct, install, operate, market, maintain, upgrade, repair, replace, access and remove Infrastructure to provide Services. Subject to applicable law and subject to the provisions of Section 10 relating to Grantee's obligation to make certain easements available to regulated public utilities and public franchise video providers, during the term of the Agreement no provider of Services other than Grantee may also provide Multi Channel Video Services within the Property. Subject to applicable law, and in recognition of Grantee's obligations under Section 10 below to make certain easements available to regulated public utilities and public franchise video providers, during the term of the Agreement Grantor, its successors and assigns, will not (i) grant any easements across all or a part of the Property to providers of Multi Channel Video Services other than Grantee in any portion of the Property that is not a public street, road, highway or sidewalk, or public right of way and (ii) will not grant or dedicate any street, road, sidewalk or highway or public right of way to any public authority unless such grant expressly indicates that it is subject to this private easement. Subject to applicable law, even on portions of the Property which subsequently become a public street, road, sidewalk or highway or public right of way, no Infrastructure installed by or on behalf of Grantee may be used by any other party without the express written permission of Grantee, which permission may be withheld for any reason. Grantee's easement rights set forth herein shall include, without limitation, the right to transmit signals related to the provision of Services over the Infrastructure to serve residents of other properties within the Area. 4. Perimeter Easement. Grantee is granted and shall have a five -foot easement (the "Perimeter Easement on, over, under and through the outermost perimeter of the Property, and along any road or lot boundary within the Property, provided that if a public right of way or public easement intrudes into the Property, the Perimeter Easement shall be located from the edge of such right of way or easement to five feet inside the Property from such edge. The Perimeter Easement shall be to sell, market and provide Services and to design, construct, install, operate, market, maintain, upgrade, repair, replace, access and remove Infrastructure to provide Services. Subject to applicable law, and in recognition of Grantee's obligations under Section 10 below to make certain easements available to regulated public utilities and public franchise video providers, during the term of the Agreement Grantor, its successors and assigns, will not grant any easements across all or a part of the Perimeter Easement to any providers of Multi Channel Video Services other than Grantee. 5. Easement in Common Areas and Multi Family Structures. Grantee is granted and shall have an easement on, over, under and through any common area or common property (including but not limited to utility areas, attics, and roofs) of a home Owners association, town house regime, multi family apartment complex or condominium regime, now existing or hereinafter established within the Property (the "Common Area Easement to sell, market and provide Services and to design, construct, install, operate, market, maintain, upgrade, repair, replace, access and remove Infrastructure to provide Services. C -2 00i)364 Subject to the provisions of Section 10 below relating to Grantee's obligation to make certain easements available to regulated public utilities and public franchise video providers, no provider of Multi Channel Video Services other than Grantee may use such common areas and areas within multi family apartment structures to install Infrastructure to provide Services. Subject to applicable law, and in recognition of Grantee's obligations under Section 10 below to make certain easements available to regulated public utilities and public franchise video providers, during the term of the Agreement Grantor, its successors and assigns, will not grant any easements across all or a part of the Common Area Easement to any providers of Multi- Channel Video Services other than Grantee. 6. Easement Under Roads and Public Right of Ways Established within the Property. Grantee is hereby granted an easement on, over, under and through any road, street or highway within the Property, to (i) sell, market and provide Services, and (ii) design, construct, install, operate, market, occupy, maintain, upgrade, repair, replace, access and remove Infrastructure to provide Services. If such road, street or highway within the Property is subsequently dedicated to any public body or all or any other portion of the Property subsequently be dedicated as a public right of way, such dedication or conveyance shall be subject to the private easement established in the preceding sentence, provided that such private easement retained by Grantee its successors and assigns shall become non exclusive in such otherwise public road, street or highway or public right of way. In such case, subject to the provisions of Section 10 below relating to Grantee's obligation to make certain easements available to regulated public utilities and public franchise video providers, (i) the non exclusive easement of Grantee, its successors, assigns, designees and licensees shall remain a private easement, (ii) the public shall have no interest in the private easement of Grantee, its successors, assigns, designees and licensees, (iii) neither the public nor any person or entity granted any rights by any public authority shall have the right to use any of the facilities of Grantee, its successors, assigns, designees and licensees in such private easement area. Subject to the provisions of Section 10 below relating to Grantee's obligation to make certain easements available to regulated public utilities and public franchise video providers, Grantee, with respect to any road, street or highway within the Property that does not become a public road, street or highway, or any portion of the Property that does not otherwise become public property, shall at all times retain an easement (the "Road Easement to (i) sell, market and provide Services and (ii) design, construct, install, operate, market, occupy, maintain, upgrade, repair, replace, access and remove Infrastructure to provide Services. Subject to applicable law, and in recognition of Grantee's obligations under Section 10 below to make certain easements available to regulated public utilities and public franchise video providers, during the term of the Agreement Grantor, its successors and assigns, will not grant any easements across all or a part of the Road Easement to any providers of Multi Channel Video Services other than Grantee. 7. Fixtures. Infrastructure shall not be deemed to be affixed to or a fixture of the Property. 8. Development Plan. Grantee, its successors and assigns will work with Grantor to locate Infrastructure with and in furtherance of the overall development plan for the Property, and to install its exterior telecommunications cable underground except for switch locations and junction boxes. 9. Other Easements; Term of Easements. Grantor reserves the right to grant other easements on the Property not in conflict with Grantee's rights set forth herein, but Grantor will not allow such other easements to cause unreasonable interference with the easement granted to Grantee herein. Neither Grantor nor any Owner of any portion of the Property (referred to individually herein as an "Owner and collectively as the "Owners shall take any action with respect to the easements granted to Grantee herein that would interfere or be inconsistent with the use of the easement by Grantee for the purposes named herein. Grantee will have and hold the easements on the Property granted herein for the term of the Agreement, unless sooner terminated upon the sale of the Property or the redevelopment of the Property to a non- manufactured home use as provided in the Agreement, together with every right and appurtenance connected to them. For so long as Grantee and Grantor or Grantor's successors and assigns or a C -3 ,365 homeowners' or condominium Owners' association created by Grantor have entered into a Infrastructure Agreement with Grantee, the easements granted to Grantee herein shall be exclusive easements with regard to installation of Infrastructure related to Multi Channel Video Services and to sale, marketing and provision of Multi Channel Video Services, and upon termination or expiration of such Agreement, such exclusive easements for Multi Channel Video Services shall become nonexclusive for so long as permitted by Grantor as provided in the Agreement. Grantor, its successors and assigns, hereby agree to warrant and forever defend the easements to Grantee as well as its successors and assigns against every person who claims any part of them. These easements and other rights granted to Grantee hereunder run with the title to the Property and for their term are binding on Grantor, its successors and assigns and on all subsequent Owners of the Property or portions thereof acquired directly or indirectly from Grantor, as well as on others who may claim an interest in all or a portion of the Property. 10. Termination of Easement. Grantor or its successor or assigns may unilaterally terminate this easement upon sale, redevelopment of the Property to non manufactured home community use, or transfer of the Property, as provided in the Infrastructure Agreement. Notwithstanding anything herein, after the term or termination of the Infrastructure Agreement, or at any time after twelve (12) years from the date of this easement, the Grantor may unilaterally terminate this easement at any time by providing Grantee with thirty (30) days advance notice and then filing a Notice of Termination of Easement in the applicable real estate records. "Easement" for purposes of this paragraph shall include any and all easements granted herein, such as a blanket easement, Perimeter Easement, Common Area Easement, and Road Easement [Signature page follows] C -4 11. Grantee Not to Interfere with Grantor's Use of Property. Grantee's easement rights granted herein shall not materially interfere with Grantor's and its resident's use of the Property. 12. Disturbance of Easement Area, Cost. If Grantor or its agents disturb the Property in exercising its rights under this Easement, Grantor shall restore at its cost the disturbed area to the level and condition that it was immediately prior to the disturbance. 13. Access by Public Utilities and Franchise Video Providers. Notwithstanding any provision of this Agreement and Memorandum of Agreement to the contrary, if a resident within the Property enters into a valid bona fide service agreement with a franchise video provider or public utility in the state in which the Property is located with respect to regulated video or voice services, respectively, as the case may be, Grantee will, upon request by such resident, public utility or regulated service provider, and subject to Grantee receiving reasonable compensation therefore, grant limited non Infrastructure non- exclusive easement access rights to the Property to such public utility or franchise video provider sufficient to enable such provider to provide the regulated service to the end user on the Property during the term of such service agreement, such rights to be consistent with the provisions of Section 8 above. 14. Memorandum of Agreement. In addition to the rights granted above, the Agreement grants to Grantee certain rights to market and to designate providers of Services to residents of the Property. IN WITNESS WHEREOF, Grantor has executed this Easement and Memorandum of Agreement on the date stated following its signature below. OWNER: Foothills MHC, LLC, a Colorado Limited Liability Company By: Boris B Vukovich (Name) Managing Member DATE: November 8, 2010 (Title) Signed, sealed and de ed in the presence of: I. 1, Witne s Sign :t re f John J. Eberle Seth Rollert 000366 Witness 1 Print Name: Witness 2 Signature Witness 2 Print Name: ACKNOWLEDGMENT STATE OF Colorado COUNTY OF Arapahoe I, Angela R. Lee, a Notary Public of County and State aforementioned, do hereby certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she signed the foregoing document: Boris B Vukovich as Managing Member of Foothills MHC, LLC. Witness my hand and seal this 8th day of November, 2010. Notary Public: Angela R. Lee My Commission Expires: 4 -12 -2012 C -5 C:t000:367 Attachment I to Easement and Memorandum of Agreement Legal Description of the Property Aparvel of land being part of Tsto 62 and 63 of the reaurvey of T21N 11116W of the 6th P.M., city of Kemmerer, Lincoln County, Wyoming and being more particularly described as follows: ComMencing at the closing corner of Tract 61 and Section 12 of said resurvey TalN R116W; thence S 80 W. 2687.54 feet to Ole point of beginning of this descrtption. said point of beginning being the same point of beginning as identified in the Foothills Kemmerer LLC warranty Deed am recorded in Book 412PR on page 579 (hereinafter referred to it the Foothill XeMMerer, LLC Parcel„) Said point of beginning being monumented with a :found rebar and aluminum survey cap. thence 69°5557a E, 548,59 0.4 89 E, 549,33 record) to the northeasterly moat corner of said Foothills Kammerer. LLC parcel where is found a raJar with no tap; thsnce S 0 W, 491-96 feet 0 0 E, I.M.110 feet recorded) to 4 pctnt Were 14 found A rbar with no cap thence S 8°22'11m W, 1511.50 feet (S 9 W, 1510.56 feet recorded) to the southeasterXy most point of Said Foothills Kemmerer, LLC parcel where is found a rebar with aluminum cap stamped 'aCCI is •5465" set this survey; thAn a R 83°27' 03 W 239.34 f5faL (N 55°28 45" N reC01.7) along thd south boundary of said Foothills Kemmerer, LLC parcel to a point where is found a rebar with aluminum, cap stamped "CCI, L-ELS 5465A; thence -continuing along the south boundary lines of said Foothills Kemmerer, LLC parcel, N 85°21'21" W 128,0S feet (N 85°28'45" W record) to a point on the et boundary lint Of Fir Avenue of the Willow Addition to the Town of Kemmerer where is fond a rebar with alUiminum survey cap stamped CCI, EELS 54651 thence N 4°35'06 n L mg the aazt boundary 1 ine G Of 'Fir Avenue and the east. boundary line of Lot 5 of the Martin Subdivision to the Town of XemMOrer, 300.12 feet to the northeast cornor of gaid Lt S Of the martin subdivision (N 4031 2, 300.00 feat record) where is found a Tabor with aluminum cap stamped "CCI, PRLS 5464 thence 85 W, 550.51 feet al 85°28'45fl W 550.00 feet record) along the north boundary of said martin subdiviaiod and Will Adtin to tha northwtet oort of Lot 4, Wck 4 oi the Willow Addition to a point where is found a rebar tti 1 uu,rum cap stamped 4 CCI, V1314 S465" set this suxvey; thence N4*2957" 2, 150.20 feet CN4 E 150,00 feet record) along the easterly boundary line of said Foothill mmerer, TILC parcel to the soutbAmst corner of that particular parcel of land conveyed to Edward kr. Carlson by Warr anty Deed a$ recorded i IA Book 1441PR on page 117 on file in the Lincoln county Clerk's office (hereinafter referred to as the Carlson Parcel). SaidtPOint being monumented by a found steel TT" shaped bar with no cap; thence S 85 B, 200,00 feet (S S5*28'45" 2, 200.00 feet record) to the southeast corner of said Carlson Parcel; C-6 C O'h:f3SS thence N 442'07" L 100.15 feet (N: 4' ism E. 100..80 'feet record) to the northeast corner of said Carlscn oarcel. Said point also being the southeast Corner of that 'particular parcel of land conveyed by Warranty Dead to MD InalAtttziez, Partnerslap es zecolded 21;,Pok. 211PR, :on page 180 on file in, the Lincoln County Clerk's office: (said parcel hereinafter referred t.o AA the Auto Tnr. Paragl); the m IN 4°42 E, 362.33 feet (R 4°31'15 361,80 feet vacord) to the northeasterly most corner of said. Auto Inn parcel to a: ;point where is round, a retie"' with aluminum cap stamped CC/, PELS 5465 set this survey; thence N 00 w 32.40 feet (ZT 0$ 12.35 feet record) aaons the north boundary line of said Auto Inn Parcel to the southeasterly most corner of that particular parcel of land conveyed hy Jere Kovach and Sheila. Kovanh as recorded. in 'look 3C9P11 on page 422 on file in the Lincoln coumy Clerk's Office (hereinafter referred to 189 .:aiquor Parcel.) Said parcei being menumented by a: rebar with altMinUM Cap tamped ar, ?ELS S46511 set this survey1 tb=1,0* N 4 E 335,15 feet Ca 4 M 33-4c(Ki e,tet record) to the northeast CDvier of said 189 Liquor ?arcal to a point monumented with: a rear and aluminum ca stamped, CCI. PELS 5465 eat thin survey; thence N 68°3717" W, 10.68 feet (N 89 10,1$0, !met record) to the southeast corner o that particular parcei of land conveyed by warrarxty Deed, to Tri-Valley Distributing, Inc as recorded in ook 224PA on page $04 on tilda in tho Linto1n County Clerkla office: thereinafter referred as the Gas Station Parce:,...) Said point being nonumented by a found rtlar with an aluminuft cap; thence N 23V12 L 142.30 feet (N 2°2544' E, 142,19 bast reoard) to the nOrtheast COrner of said Gas Station Parcel where iS fwd a rebar vith no capt thence N 89 DV IN, 14$ .81 feet N 89 W, 149.73 feet recOrd) to the northwest i,,tornor oE uaid Gaz Station pa where ie feun4 A rebar with alutanum p staolped CCI PEILS 5465 set this surimy. Said point being a point on the east right of way boundary of IL s. 'highway •84% =and being k point on. a curve to the left; thence :northeasterly along said east boundary of U.S. Highway 16F.r, 2.2-93 feet alon g the art of a curve to the lef: having a radius of ist,Juze4 feet, a centre: angie of 0 and a chord of 12.43 feet which bs..:Lve N 7 R; alQ1100 continuing along the at right of way boundary of said U.G. HichWay 189, 8 85 E 49.95 S 85 E, 50,0 feet record) to a standard 6 81 c=crste post highway right of way marker,; ‘;:herrle IT 4°1125" 1E 4504 feet OR 4. E4 45,04 teet reoor0) along said east right of way boundary of ti.S. :highway 185 to the southwest corner of Chat particular 'y4:arcel of land 00Mver4114 y Warwapty tea: to Sherwin Eirby rsoorded in Book 376PR on page 630 of the Lincoln County Clerk s office (hereinafter 'referred to as the KirbY Parcel,) t'.id point being sionumented with a found rebar and SurVey cap; ahincla X 89°46'W S, 341-69 LeeL (Wt 3e1..57 fuet record) tD. thQ southeast corner of said Kirby Parcel. Said point being menutnetted with a found rabar and Aurvy cap C-7 000369 thents N 0°1428 W 234.26 feet (North, 234,26 feet record) to the nOztheast corner of said Kirby Parcel. Said point being monumented with a found rebar and survey cap. the oe S S9 W, 362.96 feet (West, 363.00 feet record to the northweet corner of said Kirby partel. said point being a point cm, title east 'right of way boundary of t. tlighway 181 and being monumeuted by a found rebar with a survey tap, thence N 4 E 2$3.06 feet (N 4.°32f 00 E, 253.03 feet record) along said easterly right of way boundary of ELS- Highway 119 to the northwesterly terrier of said Foothills Kemmerer, TLC parcel where is found a rebsr with flO cap. thence S 85 E, 405,95 feet (N 89 E 405,56 feet record) to the point of beginning.