HomeMy WebLinkAboutL_Covenants_Title_exception_52_FredMeyerCCR_250123_v120010921001927 .oo·,
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20070921001927
FIRST AMERICAN COV 12 7 .0°
PAOE001 OF 048
AFTER RECORDING MAIL TO: 08/21/2007 14:20 KING COUNTY, WA
Fred Meyer Stores, Inc. Name
Address
City/State
Attn: Law Department 04002/23C
3800 SE 22 nd Avenue
Portland, OR, 97202
Document Title(s):
1. Declaration of Covenants, Conditions, Restrictions and Easements
Reference Number(s) of Documents Assigned or released:
Grantor(s):
1. Fred Meyer Stores, Inc., an Ohio corporation
2. Trlmark-North Benson, L.P ., a Washington limited partnership
1STAM
Grantee(s):
1. Fred Meyer Stores, Inc., an Ohio corporation
Nff· Jo7Z-'17
2. Trimark-North Benson, L.P., a Washington limited partnership
Abbreviated Legal Description:
Lot X, Y and Z, KC BLA L07L0040, 20070822900006.
Tax Parcel Number(s):
322305-9016-03; 322305-9063-05; 322305-9065-03
[ X ] Complete legal description is on page 32 of document
I am requesting an emergency nonstandard recording for an additional fee as provided in RCW
36.18.010. I understand that the recording processing r7,Irements may cover up or otherwise
obscure some part of the text of the original document. jJ
Return Address:
Fred Meyer Stores, Inc.
Attn: Law Department -04002-23C
3800 SE 22 nd Avenue
Portland, Oregon 97202
DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS
By
FRED MEYER STORES, INC.,
an Ohio corporation
and
TRIMARK-NORTH BENSON, L.P.,
a Washington limited partnership
Concerning property located in
Renton, Washington
in the Shopping Center Commonly Known as
North Benson Center
20070921001927.002
I
s "
20070921001927.003
TABLE OF CONTENTS
I. DEFINITIONS .............. : ................................................................................... I
I.I Anchor Store ........................................................................................... I
1.2 Building Area .......................................................................................... I
1.3 Building Envelope ................................................................................... 2
1.4 Common Area ......................................................................................... 2
1.5 Common Area Improvements .................................................................. 2
1.6 Declarant ................................................................................................. 2
1.7 Easement Areas ....................................................................................... 2
1.8 Fred Meyer .............................................................................................. 2
1.9 Fred Meyer Parcel ................................................................................... 2
1.10 Non-Anchor Parcel .................................................................................. 3
1.11 Owners .................................................................................................... 3
I. 12 Parcel ...................................................................................................... 3
1.13· Parties ...................................................................................................... 3
1.14 Permitted Persons .................................................................................... 3
1.15 Prime Lease ............................................................................................. 3
1.16 Trimark ................................................................................................... 3
I. 17 Trimark Parcel.. ............................................................ : .......................... 3
1.18 Utility Easement Area .............................................................................. 4
I. 19 Utility Line or Utility Lines ..................................................................... 4
2. BUILDING AND COMMON AREA DEVELOPMENT ................................ 4
2.1 Type and Design of Building ................................................................... 4
2.2 Construction Requirements ...................................................................... 5
2.3 Casualty and Condemnation ..................................................................... 6
2.4 Signage; Sign Easement.. ......................................................................... 6
2. 5 Building Code Setback ............................................................................ 7
2.6 Temporary License .................................................................................. 8
2. 7 Boundary Line Construction Matters ....................................................... 8
3. ACCESS EASEMENTS; PARKING ............................................................... 9
3.1 Access Easements in Common Area ........................................................ 9
3 .2 Parking ................................................................................................... I 0
3.3 No Barriers ............................................................................................. 10
4. RESTRICTION ON USE ................................................................................. 10
4.1 Restrictions on Ce1iain Parcels ................................................................ I 0
4.2 General Restrictions on Use .................................................................... 10
4.3 Current Tenants ...................................................................................... 11
4.4 Exclusive Use ......................................................................................... 12
4.5 Containers .............................................................................................. 12
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5. ACCEPTANCE OF RESTRICTIONS ............................................................ 12
6. MAINTENANCE OF COMMON AREA ....................................................... 12
6.1 Appointment ofTrimark as Initial Maintenance Director ........................ 12
6.2 Maintenance Standards ........................................................................... 13
6.3 Taxes ...................................................................................................... 14
6.4 Maintenance Director ............................................................................. 14
6.5 Reimbursement of Maintenance Director ................................................ 15
7. UTILITY EASEMENTS .................................................................................. 19
7.1 Grant ofUtility Easements ...................................................................... 19
7.2 Terms of Utility Easements ..................................................................... 20
7.3 Storm Drainage ....................................................................................... 20
8. ALTERATION OF COMMON AREAS, BUILDING AREAS AND
BUILDING ENVELOPES ............................................................................... 20
8.1 In General. .............................................................................................. 20
8.2 Required by Governmental Authority ..................................................... 21
8.3 Relocated Common Area ........................................................................ 21
9. HAZARDOUS SUBSTANCES ........................................................................ 21
I 0. CONDEMNATION .......................................................................................... 22
11. INSURANCE .................................................................................................... 22
12. DEF AUL TS ...................................................................................................... 23
12.1 Defaults .................................................................................................. 23
12.2 Injunctive Relief ..................................................................................... 23
12.3 Owners' Rights ofSelfHelp ................................................................... 23
12.4 Effect of Default or Non-Use .................................................................. 24
13. TERM ............................................................................................................... 24
14. GENERAL PROVISIONS ............................................................................... 25
14.1 Status of Title; Property Taxes ................................................................ 25
14.2 Protection of Rights of Mortgages ........................................................... 25
14.3 Waiver ............................. , ...................................................................... 25
14.4 Attorneys' Fees ....................................................................................... 25
14.5 Indemnity ............................................................................................... 25
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14.6 Entire Agreement.. .................................................................................. 26
14.7 Governing Law ....................................................................................... 26
14.8 Status Certificate, Information ................................................................ 26
14.9 Notices .................................................................................................. 26
14.10 Amendments ........................................................................................... 27
14.11 Effect ofDeclaration ......................................... ; ..................................... 27
14.12 Successors and Assigns ........................................................................... 28
14.13 Effect oflnvalidation .............................................................................. 28
14.14 Not a Public Dedication .......................................................................... 28
14.15 No Partnership ........................................................................................ 28
14.16 Exercise of Approval Rights, Limitation of Claims ................................. 29
14.17 Sale and Sale-Leaseback Purchaser. ........................................................ 29
14.18 Third Party Beneficiary Rights ............................ , ................................... 29
14.19 Force Majeure ......................................................................................... 29
14.20 Interpretation .......................................................................................... 29
EXHIBIT A -Legal Description of Fred Meyer Parcel
EXHIBIT B -Legal Description of Trimark Parcel
EXHIBIT C -Site Plan
EXHIBIT D -Fuel Station Location
EXHIBIT E -Schedule of Maintenance Costs Sharing Ratios
SCHEDULE 4.3 -Current Tenants
SCHEDULE 4.4 -Tenant Leases with Exclusive Use Clauses
iii
DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND EASEMENTS
20070921001927.006
This DECLARATION OF COVENANTS, CONDITIONS, RESTRJCTIONS AND
EASEMENTS (the "Declaration") is made this LL day of £, "./e-.,.,6<-c ,
2007, by FRED MEYER STORES, INC., an Ohio corporati;;n (referred to as "Fred
Meyer") and TRIMARK-NORTH BENSON, L.P., a Washington limited partnership
(referred to as "Tri mark").
RECITALS
A. Each of the Parties owns a certain parcel or parcels of land located in King
County, State of Washington, (collectively, the "Property"), which Property is more
particularly described on Exhibits A and B, respectively, and is shown on the site plan
attached as Exhibit C (the "Site Plan").
B. The Parties intend to operate their respective portions of the Property as a
retail shopping complex known as North Benson Center (the "Shopping Center") in
accordance with certain covenants and agreements, and to grant to each other certain
reciprocal easements in their respective portions of the Property.
AGREEMENT
NOW, THEREFORE, the Declarant hereby declares, agrees, covenants and
consents that all of the Property shall be held, sold, leased and conveyed subject to the
following easements, restrictions, covenants and conditions which are imposed on the
Property or portions thereof and which shall run with the land and be binding on and inure
to the benefit of all Parties having any right, title or interest in the Parcels or any part or
portion thereof, their heirs, successors and assigns, for the purpose of development and
operation of the Parcels in an integrated shopping center and to protect the value of such
Parcels. Further, in consideration of the premises and the easements, conditions and
restrictions hereinafter set fo1th, the Patties do hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings set forth below:
I.I "Anchor Store": A retail store containing at least 150,000 square feet of
gross building area.
1.2 "Building Area": All those areas on each Parcel on which buildings or
other commercia I structures have been constructed or are constructed in accordance with
this Declaration, together with any drive-through lanes, outdoor play areas and/or eating
areas, and outdoor sales areas shown on the Site Plan.
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1.3 "Building Envelope": The area on each Parcel approved for use as
Building Area (which for the purpose of this Declaration shall include any appurtenant
canopies, supports, loading docks, truck ramps and other outward extensions). A Parcel's
Building Envelope may be larger than the Building Area that is or will be permitted on
such Parcel under the provisions of this Declaration or under applicable land use
regulations; the purpose of the Building Envelope is to identify the portions of each Parcel
that may contain Building Area.
1.4 "Common Area": All those areas on each Parcel which are not Building
Areas. Canopies which extend over the Common Area, together with any columns or
posts supporting the same, shall be deemed to be a part of the building to which they are
attached and not a part of the Common Area.
LS "Common Area Improvements": All improvements in or to the Common
Area which will be or may be constructed under the terms of this Declaration which would
be part of the Common Area, including, without limitation, all perimeter sidewalks, and all
Common Area improvements constructed from time to time in replacement of or redesign
of such improvements pursuant to this Declaration.
1.6 "Declarant": Fred Meyer and Trimark, and their successors and assigns as
fee owners (or Prime Lessee) of the Fred Meyer Parcel and the Trimark Parcel,
respectively.
1.7 "Easement Areas": Collectively, the Common Area and the Utility
Easement Area.
1.8 "Fred Meyer": Fred Meyer Stores, Inc., and its successors and assigns as
fee owner or lessee under a Prime Lease with respect to the Fred Meyer Parcel or portion
thereof. At such time as Fred Meyer no long owns or no longer is the lessee under a Prime
Lease with respect to the Fred Meyer Parcel or portion thereof ( or at Fred Meyer's option,
such earlier time as the Fred Meyer Parcel shall be conveyed by Fred Meyer to a third
party), all references in this Declaration to Fred Meyer and all rights of approval or consent
held by Fred Meyer shall refer, instead, to (and be exercisable solely by) the fee owner or
lessee under a Prime Lease with respect to the Fred Meyer Parcel.
l.9 "Fred Meyer Parcel": The real property described on Exhibit A. In the
event Fred Meyer conveys less than all of the Fred Meyer Parcel, that portion of the Fred
Meyer Parcel retained by Fred Meyer shall be the Fred Meyer Parcel unless Fred Meyer
designates a particular portion of the conveyed Fred Meyer Parcel as the Fred Meyer
Parcel. In the event Fred Meyer conveys all of the Fred Meyer Parcel in multiple parcels
to more than one grantee, Fred Meyer shall designate which parcel shall be the Fred Meyer
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Parcel and if Fred Meyer fails to so designate, the largest parcel shall be the Fred Meyer
Parcel. In no event shall there be more than one Fred Meyer Parcel.
1.10 "Non-Anchor Parcel": Each of the Parcels in the Shopping Center other
than the Fred Meyer Parcel.
1.ll "Owners": Collectively, the owner (or Prime Lessee) of each of the
Parcels. The singular term "Owner" shall mean any one of the Owners.
1.12 "Parcel": The parcels of real property described on the attached exhibits,
and any other legally created parcel of real property within the Shopping Center, including
(without limitation) a parcel created by partition or subdivision of a portion of the
Shopping Center.
1.13 "Parties": Means and refers to Trimark or Fred Meyer and any person(s)
acquiring any interest of a Party in or to any portion of such Party's Parcel, and "Parties"
means two (2) or more of the foregoing.
1.14 "Permitted Persons": Each Owner and its respective successors and
assigns; the employees, representatives, agents, licensees, business visitors, customers and
invitees of the Owner; and the tenants of the Owner and employees, representatives,
agents, licensees, business visitors, customers and invitees of such tenants. An "Owner's
Permitted Persons" and similar terms shall mean the Permitted Persons whose rights
under this Declaration derive from that particular Owner.
1.15 "Prime Lease": If an Owner of a Parcel sells the Parcel to an unaffiliated
third party in a sale-leaseback transaction or a third party acquires the Parcel and leases all
or substantially all of the Parcel to a former Owner or a Prime Lessee in a synthetic lease
transaction, the net lease pursuant to which the former Owner or the Prime Lessee leases
the parcel. The "Prime Lessee" is the tenant/lessee under a Prime Lease, and its
successors and assigns, but does not include the sublessees (other than a sublessee of the
entire Parcel which is designated by the Prime Lessee under the Prime Lease to be a Prime
Lessee under the sublease), licensees or concessionaires of the Prime Lessee.
1.16 "Trimark": Trimark and any successor Owner of the Trimark Parcel.
I.I 7 "Trimark Parcel": The real property described on the attached Exhibit B.
In the event Trimark conveys less than all of the Trimark Parcel, that portion of the
Trimark Parcel retained by Trimark shall be the Trimark Parcel unless Trimark designates
a particular portion of the conveyed Tri mark Parcel as the Trimark Parcel. In the event
Trimark conveys all of the Trimark Parcel in multiple parcels to more than one grantee,
Trimark shall designate which parcel shall be the Trimark Parcel and if Trimark fails to so
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designate, the largest parcel shall be the Trimark Parcel. In no event shall there be more
than one Trimark Parcel.
1.18 "Utility Easement Area": All areas of the Shopping Center on, over, under
or through which any Utility Line is located and which serves the Owner's Parcel
exclusively or in common with the other Owner's Parcel.
1.19 "Utility Line" or "Utility Lines": Any power line, water line, sewer line,
gas line, communication line or other utility line, service or facility serving the Owner's
Parcel exclusively or in common with the other Owner's Parcel affected thereby.
2. BUILDINGS AND COMMON AREAS.
2.1 Type and Design of Building.
a. General Standard. Each building in the Shopping Center shall be
of first quality construction and architecturally designed so that its exterior elevations and
appearance (including, without limitation, signs and color) will be architecturally and
aesthetically compatible and harmonious with all other buildings in the Shopping Center.
b. Fire Safety. Every building shall be either equipped with automatic
sprinkler systems which meet all the standards of the Insurance Services Office ( or other
similar local organization having jurisdiction) or shall be constructed in such manner as not
to adversely affect the fire rating of any building built upon any other Parcel. The purpose
of this Section 2. l.b. is to allow buildings built on each Parcel to be fire rated as separate
and distinct units without deficiency charge.
c. Structural Integrity. No building shall be built in such a manner as
to adversely affect the structural integrity of any other building in the Shopping Center.
d. Height. No portion of any building on a Non-Anchor Parcel shall
exceed two (2) stories or twenty-five (25) feet in height above grade, except as otherwise
approved in writing by Fred Meyer. Such height in the preceding sentence will not in any
event exceed the limitations imposed by applicable legal requirements.
e. Current Buildings: Interior and Tenant Improvements. The
obligations and restrictions in this Section 2.1 shall not apply to the buildings, the
improvements, and the Common Area Improvements in their current condition that are
currently located in the Shopping Center as of the date of this Declaration. In addition, the
obligations and restrictions in this Section 2.1 shall not apply to any tenant improvements
or other modifications to the interior of any building provided such improvements or
modifications do not materially alter the exterior of the building or extend beyond the
Building Area.
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f. Fuel Station. It is Fred Meyer's intent to operate a Fred Meyer
branded fuel station on a portion of the Fred Meyer Parcel as depicted on the site plan
attached as Exhibit D ("Fuel Station Location"). Trimark hereby consents to the Fuel
Station Location and acknowledges that operation of a fuel station is not a prohibited or
restricted use in this Declaration. Nothing in this section or in this Declaration shall be
deemed to create any express or implied obligation for Fred Meyer to operate or continue
to operate a Fred Meyer branded fuel station or otherwise on the Fuel Station Location.
2.2 Construction Requirements.
a. Staging and Performance of Work. All work performed in the
construction, maintenance, repair, replacement, alteration or expansion of any building,
sign or Common Area Improvements located in the Shopping Center shall be performed
and completed in a good and workmanlike manner, 'as expeditiously as possible and in
such a manner as not to unreasonably interfere, obstruct or delay (i) access to or from the
Shopping Center, or any part thereof, to or from any public right-of-way, (ii) customer
vehicular parking in that portion of the improved Common Area located in front of any
building constructed in the Shopping Center, or (iii) the receiving of merchandise by any
business in the Shopping Center, including, without limitation, access to service facilities.
In connection with any construction, reconstruction, repair, or maintenance on its Parcel,
each Party reserves the right to create a temporary staging and/or storage area in the
Common Area or in the Building Area on its Parcel at a location which will not
unreasonably interfere with access between such Parcel and the other areas of the
Shopping Center. No approval of the staging area shall be required if completely within
the constructing Party's Parcel and all other requirements set forth in this Section are met.
Prior to the commencement of any work which requires the establishment of a staging
and/or storage area on the Common Area of a Parcel other than the Parcel on which such
work is to take place, a Party shall give at least thirty (30) days prior notice to the non-
constructing Owner for its approval of the proposed location, which approval shall not be
unreasonably withheld or delayed. If an Anchor Store is operating on the Fred Meyer
Parcel then no other Party's staging area shall be located within three hundred (300) feet of
the front door of the Anchor Store on the Fred Meyer Parcel, unless located within a
Building Area or completely within the constructing Party's Parcel provided such staging
area does not block any access to or from the Fred Meyer Parcel. If the non-constructing
Party does not approve the proposed location of the staging and/or storage area required to
be approved hereunder, the Party shall modify the proposed location to satisfy the
reasonable requirements of the non-constructing Party. All storage of materials and the
parking of construction vehicles, including vehicles of workers, shall occur only on the
constructing Party's Parcel, and all laborers, suppliers, contractors, and others connected
with such construction activities shall use only the access points located upon the
constructing Party's Parcel unless access to the constructing Party's Parcel is solely
through another Parcel. Upon completion of such work, the constructing Party shall
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restore the affected Common Area to a condition equal to or better than that existing prior
to commencement ofsuch work. Unless otherwise agreed by Fred Meyer, no construction
shall occur during the months of November or December. The staging area(s) and/or
construction area(s) shall be fenced or screened at the expense of the constructing Party.
b. Handling of Lien Claims. The constructing Party shall not permit
any liens to stand against any Parcel for any work done or materials furnished in
connection with the performance of the work described in Section 2.2.a above. The
constructing Party shall, within sixty (60) days after receipt of written notice from the
Owner or Prime Lessee of any Parcel encumbered by any such lien or claim of lien, cause
any such outstanding lien or claim of lien to be released of record or bonded over in
accordance with applicable law. If the constructing Party fails to do so within such sixty
(60)-day period, then the Owner or Prime Lessee of the Parcel shall have the right, at the
constructing Party's expense, to cause such lien to be bonded over.
c. Incidental Temporary Encroachments. Declarant recognizes that ·
incidental encroachments upon the Common Area may occur as a result of the use of
ladders, scaffolds, store front barricades, and similar facilities in connection with the
construction, maintenance, repair, replacement, alteration or expansion of buildings, signs,
and Common Area Improvements located in the Shopping Center, all of which are
permitted hereunder, so long as all activities requiring the use of such facilities are
expeditiously pursued to completion and are performed in such a manner as to minimize
any interference with use of the improved Common Area or with the normal operation of
any business in the Shopping Center.
2.3 Casualty and Condemnation. In the event all or any portion of any
building in the Shopping Center is (i) damaged or destroyed by fire or other casualty, or
(ii) taken or damaged as a result of the exercise of the power of eminent domain or any
transfer in lieu thereof, the Owner of such building shall promptly restore or cause to be
restored the remaining portion of such building or, in lieu thereof, shall remove or cause to
be removed the damaged portion of such building together with all rubble and debris
related thereto. All Building Areas on which buildings are not reconstructed following a
casualty or condemnation shall be graded or caused to. be graded by the Owner thereof to
the level of the adjoining property and in such a manner as not to adversely affect the
drainage of the Shopping Center or any portion thereof, shall be covered by a one inch (I")
asphalt dust cap until buildings are reconstructed thereon. The owner of such Paree[ shall
take such steps on an on-going basis as are reasonably necessary to prevent erosion,
blowing dust or the growing of weeds.
2.4 Signage; Sign Easement. There currently exists seven (7) pylon signs in
the Shopping Center as of the date of this Declaration ("Signs"). Of the seven (7) Signs,
five (5) are located on the Trimark Parcel and two (2) are located on the Fred Meyer
Parcel. Two (2) of the Signs are Shopping Center signs of which one (1) is located on the
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Trimark Parcel and one(!) is located on the Fred Meyer Parcel ("Shopping Center
Signs"). The five (5) other Signs are tenant specific signs. Except with the prior written
consent of the Declarant, which consent shall not be unreasonably withheld or delayed; no
other pylon signs shall be permitted in the Shopping Center. Any alterations to the
Shopping Center Signs by Fred Meyer or Trimark, except for replacing tenant or business
specific signage (including "Fred Meyer" signage), shall require the prior written consent
of the other party, which consent shall not be unreasonably withheld or delayed. The cost
of any permitted alterations to the Shopping Center Signs shall be a Reimbursable Expense
pursuant to Section 6. The replacement of tenant or business specific signage (including
"Fred Meyer" signage) shall be at the expense of the landlord of the tenant or in the case of
"Fred Meyer" signage Fred Meyer. Except for Fred Meyer and Trimark, no other Owner
shall make any alterations to the Shopping Center Signs.
2.5 Building Code Setback. All buildings constructed in the Shopping Center
shall comply with the following requirements (unless Declarant specifically agrees
otherwise in advance and in writing):
a. No building shall be constructed within sixty feet (60') of the
building on the Fred Meyer Parcel unless such building, hereinafter referred to as the
"adjacent building", is located immediately adjacent to the common boundary line and is
attached to the building, if any, on the adjacent Parcel;
b. If an "adjacent building" exists, then no building shall be located
within sixty feet (60') of the "adjacent building" unless such building is attached to the
"adjacent building"; the "adjacent building" and all other buildings on the parcel that are
attached to the "adjacent building" and to each other are hereinafter referred to as the
"building group";
c. Any building that is not part of the "building group" shall be located
at least sixty feet ( 60') from the "building group"; and
d. The "adjacent building" or the "building group", as the case may be,
shall comply with the building code requirements applicable to an "unlimited area"
building, including, without limitation, the installation and maintenance of an approved
sprinkler system for fire protection.
In addition to the requirements set forth above, no building shall
initially be placed or constructed on any Parcel in a manner which will, based on then-
existing governmental regulations, either preclude the construction on the Fred Meyer
Parcel of an "unlimited area" building, or cause an existing "unlimited area" building
thereon to no longer be in conformance with the applicable building code requirements, it
being understood and agreed, however, that subsequent changes in governmental
regulations shall not obligate an Owner to modify or alter its existing building. By way of
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explanation, but not limitation, an "unlimited area" building is designated II-Nor V-N
under the Uniform Building Code. If required by any governmental authority, each Owner
agrees to join in a recordable declaration which confirms the existence of a sixty foot (60')
clear area around the applicable Building Envelopes ( or actual building areas within the
Building Envelopes).
2.6 Temporary License. Each Owner of a Parcel ("Licensor Owner") grants
to the Owner of an adjacent Parcel in the Shopping Center ("Licensee Owner"), and the
contractors, materialmen and laborers of the Licensee Owner, a temporary license
("License") for access and passage over and across the Common Area of the Licensor
Owner's Parcel as shall be reasonably necessary for the Licensee Owner to construct
and/or maintain improvements upon the Licensee Owner's Parcel: provided, however, that
such License shall be in effect only during periods when actual construction and/or
maintenance is being performed and. provided further, that the use of such License shall
not wrreasonably interfere with the use and operation of the Common Area on the Licensor
Owner's Parcel by others. Prior to exercising the rights of the License herein granted, the
Licensee Owner shall first deliver to the Licensor Owner a written statement describing the
need to exercise rights under the License, and, in addition, shall deliver to the Licensor
Owner a certificate of insurance evidencing that its contractor has obtained and has in force
commercial general liability insurance in such form and with such coverage and limits as
shall be reasonably acceptable to the Licensor Owner;and statutory workers'
compensation coverage. A Licensee Owner availing itself of the License shall promptly
pay all costs and expenses associated with such work, shall diligently complete such work
as quickly as possible, and shall promptly clean the area and restore the affected portion of
the Common Area to a condition which is equal to or better than the condition which
existed prior to the commencement of such work.
2.7 Boundary Line Construction Matters.
a. In order to accommodate any building improvements that may
inadvertently be constructed beyond a Parcel's boundary line, each Owner grants to each
Owner owning an adjacent Parcel an easement in, to, over, under and across that portion of
the grantor's Parcel adjacent to such common boundary line for the maintenance and
replacement of such building improvements to a maximum lateral distance of six inches
(6").
b. In the event an Owner that constructs improvements on its Parcel
("Constructing Owner") determines that it is necessary to place underground piers,
footings and/or foundations ("Subsurface Construction Elements") across the boundary
line of its Parcel, the Constructing Owner shall advise the Owner owning the adjacent
Parcel (the "Adjacent Owner") of its construction requirement and shall provide plans
and specifications relating thereto, including proposed construction techniques for the
Subsurface Construction Elements. The Adjacent Owner hereby grants and conveys to the
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Constructing Owner for the benefit of its Parcel an easement, not to exceed a maximum
lateral distance of five feet ( 5 '), in, to, under and across that portion of the Adjacent
Owner's Parcel not theretofore occupied by any then-existing structure, for the installation,
maintenance and replacement of such Subsurface Construction Elements: provided,
however, that the Constructing Owner shall have no right to use such easement if the
Adjacent Owner is able to provide the Constructing Owner a reasonable alternative
construction method for the placement of the Subsurface Construction Elements entirely
on the Constructing Owner's Parcel. The Adjacent Owner reserves the right to require the
Constructing Owner to modify the design specifications for the Subsurface Construction
Elements in order to permit the Adjacent Owner the opportunity to utilize the same in
connection with the construction of its building immediately adjacent to the common
boundary line. If a common Subsurface Construction Element is used by the Parties, each
shall assume and pay its reasonable share of the cost and expense of the design and
construction thereof. In the event any building utilizing a common Subsurface
Construction Element is destroyed and not replaced or is removed, the common Subsurface
Construction Elements shall remain in place for the benefit of the other building utilizing
the same.
c. The foregoing easement grants shall not diminish or waive any right
of an Owner to recover damages resulting from the Constructing Owner's failure to
construct its building within its Parcel line in the case of Section 2. 7.a above, or within the
easement area limits in the case of Section 2.7.b above. The easements in each instance
shall:
i. continue in effect for the term of this Declaration and
thereafter for as long as the building utilizing the easement area exists (including a
reasonable period to permit reconstruction or replacement of such building if the same
shall be destroyed, damaged or demolished); and
ii. include the reasonable right of access necessary to
exercise and eajoy such grant upon the terms and with the limitations described in Section
2.6 above.
d. Nothing herein shall be deemed to create or establish a "common"
or "party" wall to be shared by buildings constructed along the common boundary lies
between the Parcels.
3. ACCESS EASEMENTS: PARKING.
3.1 Access Easements in Common Area. Subject to the terms and conditions
in this Declaration, the Owners shall have a nonexclusive easement over, and the Permitted
Persons shall have the right to use, the paved portions or paved accessways and the
improved pedestrian walkways within the Common Area, as shown on the Site Plan, for
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these purposes: (i) ingress and egress of Permitted Persons and their vehicles to and from
any portion of the Shopping Center and public streets adjacent to the Shopping Center; (ii)
movement of pedestrian and vehicular traffic of Permitted Persons from any part of the
Shopping Center to any other part of the Shopping Center; (iii) loading and unloading and
(iv) vehicular parking. The Common Areas may be used for directional signs, sidewalks,
walkways, landscaping, perimeter walls and fences, parking lot lighting, utilities and
service facilities, in accordance with the Site Plan and consistent with such easements.
3.2 Parking. Each Owner shall maintain on such Owner's Parcel sufficient
parking spaces to meet the needs of such Owner's Permitted Persons, and to satisfy
requirements of the City/County of King codes, taking into account the nonexclusive
Common Area parking rights under this Declaration. Except with the prior written consent
of the Declarant, which such consent shall not be unreasonably withheld or delayed, no
Owner shall: (i) reduce the number of parking spaces on such Owner's Parcel from the
number existing as of the date of this Declaration; and (ii) not apply for a variance from the
requirements of any applicable codes so as to reduce the number of spaces required on
such Owner's Parcel. Employees ofan Owner and of its tenants as to the Owner's Parcel
shall not have, as a result of this Declaration, the contractual right to park in portions of the
Shopping Center other than the Owner's Parcel ( except as may be mutually agreed and as
set forth in a written agreement between the Owner of the Parcel and the user). Declarant
hereby establishes, declares and grants, subject to the terms contained in this Declaration, a
perpetual, non-exclusive easement for the passage and parking of vehicles on over and
across the parking and drive aisle areas of the Common Area on each Parcel, as the same
may be constructed and maintained from time to time. The Owners shall cooperate with
each other in taking any reasonable steps required to avoid any abuse of this provision or
other violation of this Declaration.
3.3 No Barriers. Except as set forth in Section 2.2.a, no fences, walls or
barriers to access will be erected on the common boundary lines between the Parcels.
4. RESTRICTION ON USE.
4.1 Restrictions on Certain Parcels. Without the prior written consent of Fred
Meyer (in Fred Meyer's sole discretion), no Parcel other than the Fred Meyer Parcel will
be leased, subleased, operated or otherwise used for: (i) any supermarket (which for
purposes of this Declaration means any store, department or area within a store, containing
at least five thousand (5,000) square feet of gross floor area, including aisle space and
storage, primarily devoted to the retail sale of food for off-premises consumption); or (ii)
the sale of any pharmaceutical products requiring the services of a registered pharmacist.
4.2 General Restrictions on Use. In addition to the limitations set forth in
Section 4.1, no part of the Shopping Center shall be used or occupied for purposes other
than retail sales and retail services. The Parcels shall not be leased, subleased, operated or
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otherwise used for: (i) the display, distribution or sale of any "adult" books, "adult" films,
"adult" periodicals or "adult" entertainment; provided, however, this restriction shall not
prohibit such national book sellers such as Borders or Barnes and Noble; (ii) the
establishment or maintenance of a massage parlor ( except that this provision shall not
prohibit that type of massage parlor customarily associated with or contained in first class
retail developments, day spas and medical offices and massages in connection with such
day spas, or medical offices), gambling operation, "adult" theater, "adult" bookstore, "sex"
shop, "peep show" or bawdy house or brothel, or any use in violation of applicable zoning
and other governmental laws and regulations; (iii) any use which emits an obnoxious odor,
··noise or sound which can be heard or smelled outside of any building in the Shopping
Center, or which is a public or private nuisance; (iv) any refining, smelting, agricultural,
animal raising or boarding (other than consumer pet shops), or mining operation; (v) any
short or long term residential use; (vi) any primary use as a warehousing, assembling,
manufacturing, waste processing or other industrial operation; (vii) any motor vehicle,
truck, trailer, recreational vehicle or boat sales, leasing or display ( other than promotional
displays by tenants of the Shopping Center); or (viii) any place for public assembly (such
as a church, mortuary or meeting hall). "Retail services" as used in this Section 4.2
means restaurants, financial institutions, real estate and stock brokerage offices, travel or
insurance agencies, medical and dental offices, and similar uses providing services directly
to the public, but "retail services", specifically excludes office uses in excess of eight
thousand (8,000) square feet, and the following: (i) flea markets, fire, bankruptcy or
liquidation sales, or sales of "second-hand" or "surplus" merchandise; (ii) dry clea11ing
plants (provided retail establishments with "drop off' services shall be permitted); (iii)
movie theaters, bowling alleys, skating rinks, game parlors, pool or billiard halls, dance
halls, video arcades or other entertainment facilities; (iv) restaurants that exclude minors or
exclude minors during certain business hours from entering the restaurant; provided,
however, this restriction shall not prohibit restaurants that have areas within the restaurant
that prohibit minors (for example, but not by way of limitation, Olive Garden, Outback
Steakhouse, Black Angus, Applebee's, Benigans, Mimis, Claim Jumpers and/or The Ram);
and (v) health clubs (which for purposes of this Declaration means any health club
containing more than five thousand (5,000) square feet of gross floor area). Fred Meyer or
Trimark may request in writing from time to time that the other party consent, in their sole
discretion, to allow a specific use for a specific proposed tenant that is disallowed by the
restrictive use covenants in this Section 4.2; provided, however, that the giving of such
consent in one instance shall not preclude the need for the requesting party to obtain the
other party's consent to allow such specific use in the future.
4.3 Current Tenants. Notwithstanding anything to the contrary in this
Section 4, none of the use restrictions in this Section 4 shall restrict the continued
operations of the current tenants of the Shopping Center as of the date of this Declaration,
a list of which is attached as Schedule 4.3.
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4.4 Exclusive Use. Fred Meyer, Trimark and any other Owner shall
honor and abide by the exclusive use clauses in those tenant leases listed on Schedule 4.4
until such tenant leases are terminated or expire or until such time as the exclusive use
clause is no longer binding on the landlord.
4.5 Containers. Fred Meyer shall have the right to permanently place up to
three (3) storage containers and temporarily place up to two (2) storage containers on that
portion of the Common Area of the Fred Meyer Parcel marked on the Site Plan. As used in
the prior sentence, "temporarily" shall mean no longer than ninety (90) days.
5. _bCCEPTANCE OF RESTRICTIONS. Any lease or occupancy agreement
subsequently entered into with respect to a Parcel will require that the tenant's use (and
any changes to the original use by the tenant) must comply with applicable laws and
recorded easements and restrictions affecting the property (including this Declaration). In
acquiring a Parcel, an Owner shall automatically be deemed to acknowledge that the
restrictions set forth in this Declaration are an essential part of the particular transaction
covering Owner's Parcel and, further, that the restrictions set forth in this Declaration are
fair and reasonable to assure all Owners of Parcels of their expected benefits and the
orderly and beneficial development of the Shopping Center and the Parcels, but not to
control competition (recognizing that the relevant competitive market consists not of the
Shopping Center but of the commercial retail market in the greater metropolitan area of
Seattle, Washington).
6. MAINTENANCE OF COMMON AREA.
6.1 Appointment of Trimark as Initial Maintenance Director.
a. Trimark as Maintenance Director. Trimark will be the initial
manager of the Common Area of the Shopping Center ("Maintenance Director"), subject
to the terms and provisions of this Declaration.
b. Exclusive Designation. Neither Trimark nor Fred Meyer has
previously designated or authorized any other person to act as the Maintenance Director
for the Shopping Center. During the term of this Declaration, and unless it is terminated or
unless neither Trimark or Fred Meyer is the Maintenance Director as described below, no
Owner shall enter into a maintenance agreement, or a similar agreement, pursuant to which
such Owner authorizes any other party to perform the Common Area maintenance
activities required to be performed by the Maintenance Director (as described below);
provided that the Maintenance Director shall have the right to enter into a maintenance
agreement with a third-party management company to act as Maintenance Director's agent
in maintaining the Shopping Center.
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6.2 Maintenance Standards.
a. General Standard of Maintenance. Commencing on the date of
this Declaration, the Maintenance Director shall, except as hereinafter provided, maintain
the Common Area at all times in good and clean condition and repair. Such maintenance
shall be to a standard equal to that of similar first class shopping center in accordance with
recognized industry standards for leading retail developments in the geographic area in
which the Shopping Center is situated. Such maintenance will include, without limitation,
the following:
i. Maintaining, repairing and resurfacing, when necessary, all
paved surfaces in a level, smooth and evenly covered condition with the type of surfacing
material originally installed or such substitute as shall in all respects be equal or superior in
quality, use and durability, and restriping, when necessary, such paved surfaces;
ii. Removing all snow, papers, debris, filth and refuse and
thoroughly sweeping the area to the extent reasonably necessary to keep the area in a clean
and orderly condition;
111. Maintaining, repairing and replacing, when necessary, all
traffic directional signs, markers and lines;
iv. Operating, maintaining, repairing and replacing, when
necessaiy, parking lot lighting facilities as shall be reasonably required;
v. Maintaining all landscaped areas (including, without
limitation, those on the perimeter of the Shopping Center), maintaining, repairing and
replacing, when necessary, automatic sprinkler systems and water lines, and replacing
shrnbs and other landscaping as necessary;
vi. Maintaining, repairing and replacing, when necessary, all
storm drains, sewers and other utility lines and service facilities not dedicated to the public
or conveyed to any public or private utility which are necessary for the operation of the
buildings and improvements located in the Shopping Center;
vii. Keeping the Shopping Center Signs lighted from dusk to
dawn and/or during such other times as Fred Meyer may determine to be appropriate;
maintaining, repairing and replacing, when necessary, the Shopping Center Signs;
viii. Performing or contracting with a third party or parties to
perform any of the services described herein.
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b. General Liability Insurance by Maintenance Director. In
addition to the foregoing, the Maintenance Director shall provide and maintain
comprehensive general liability insurance with broad form coverage endorsement
(including broad form property damage endorsement) insuring the Maintenance Director
against claims for personal injury, bodily injury or death, and property damage or
destruction, occurring in, on or about the Common Area. Such insurance shall be written
with an insurer licensed to do business in the state in which the Shopping Center is located.
All parties hereto, and all persons who now or hereafter own or hold portions of the
Shopping Center or building space within the Shopping Center or any leasehold estate or
other interest herein as their respective interest may appear (provided that the Maintenance
Director is notified in writing of such interest) shall be named on the policy as additional
insureds. The limits ofliability of all such insurance shall be not less than $2,000,000 for
personal injury or bodily injury or death of any one person, $2,000,000 for personal injury
or bodily injury or death of more than one person in one occurrence and $500,000 with
respect to damage to or destruction of property; or, in lieu of such coverage, a combined
single limit (covering personal injury, bodily injury or death and property damage or
destruction) with a limit of not less than $2,000,000 per occurrence. If Fred Meyer is the
Maintenance Director, Fred Meyer shall have the right to self insure in lieu of obtaining
the insurance coverage required in this Section 6.2.b provided that Fred Meyer has and
maintains a net worth of at least One Hundred Million Dollars ($100,000,000.00).
c. Indemnification by Maintenance Director. The Maintenance
Director agrees to indemnify, defend and hold harmless the Owners and occupants ( and
their officers, directors, partners and employees) of all Parcels for, from and against any
and all liability, claims, damages, losses, expenses (including reasonable attorneys' fees
and reasonable attorneys' fees on appeal),judgments, proceedings and causes of action, for
injury to or death of any person or damage to or destruction of any property occurring in,
on or about the Common Area ( exclusive of any service facilities or Utility Lines or drive-
up or drive through customer service facilities) and arising out of the gross negligence or
willful misconduct by the Maintenance Director, but excluding claims to the extent that
they arise out of the negligent or willful act or omission of the indemnified person, its
agents or employees.
6.3 Taxes. Each Owner shall pay directly to the tax collector whe11 due the real
property taxes and other taxes and assessments assessed against the Owner's or Prime
Lessee's Parcel, including the portion of the Common Area on such Owner's Parcel;
subject, however, to the right of any such Owner to contest the amount or validity of all or
any part of said taxes and assessments.
6.4 Maintenance Director.
a. Initial Maintenance Director. As referenced above, Trimark will
be the initial Maintenance Director of the Common Area, effective from and after the date
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of this Declaration.
b. Replacement of Maintenance Director. In the event Fred Meyer
is dissatisfied with Trimark's performance as Maintenance Director, Fred Meyer shall
provide written notice to Trimark describing the specific performance items it is
dissatisfied with ("Fred Meyer Performance Items") and Trimark shall have thirty (30)
days from receipt of such notice to cure the Fred Meyer Performance Items. If Trimark
fails to cure the Fred Meyer Performance Items to Fred Meyer's reasonable satisfaction,
Fred Meyer may, at its option, replace Trimark as Maintenance Director by written notice
to Trimark within thirty (30) days after the expiration of the thirty (30) day cure period. If
Fred Meyer decides not to become the Maintenance Director, , the provisions of Section
6.4( d) will apply. In the event Fred Meyer becomes Maintenance Director and Trimark is
dissatisfied with Fred Meyer's performance as Maintenance Director, Trimark shall
provide written notice to Fred Meyer describing the specific performance items it is
dissatisfied with ("Trimark Performance Items") and Fred Meyer shall have thirty (30)
days from receipt of such notice to cure the Trimark Performance Items. If Fred Meyer
fails to cure the Trimark Performance Items to Trimark's reasonable satisfaction, the
provisions of Section 6.4( d) will apply.
c. Resignation of Maintenance Director. If Tri mark is the
Maintenance Director, Trimark shall have the right, upon ninety (90) days prior written
notice to the other Owners, to resign as Maintenance Director. In such an event, Fred
Meyer may, at its option, replace Trimark as Maintenance Director by written notice to
Trimark prior to expiration of such ninety (90) day cure period. If Fred Meyer decides not
to become the Maintenance Director, the provisions of Section 6.4(d) will apply. If Fred
Meyer is the Maintenance Director, Fred Meyer shall have the right, upon ninety (90) days
prior written notice to the other Owners, to resign as Maintenance Director and the
provisions of Section 6.4(d) will apply.
d. Responsibility If No Maintenance Director. In the event at any
time there ceases to be a Maintenance Director, each Owner shall be responsible for the
maintenance, insurance and lighting of its own Parcel, including the Common Areas within
such Parcel, according to the standards in Section 6.2. Notwithstanding the prior sentence,
the prorata sharing of expenses for the Common Area maintenance items described in
Exhibit E and the sharing of the drive lane expenses described in Section 6.5.c shall
continue ifthere ceases to be a Maintenance Director. Trimark and any other Owner may
elect to use the same contractor as Fred Meyer in maintaining the Common Areas within
its Parcel.
6.5 Reimbursement of Maintenance Director.
a. Reimbursable Costs. The Maintenance Director shall be entitled to
reimbursement, as provided below for the following costs relating to the maintenance work
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performed or contracted by the Maintenance Director hereunder ("Reimbursable Costs"),
provided, that the Reimbursable Costs for which Fred Meyer or Trimark, as applicable,
shall be obligated to pay its equitable share shall not exceed the costs shown on the Budget
as adopted and amended by Fred Meyer and Trimark:
i. The direct out-of-pocket costs incurred by Maintenance
Director, including without limitation the cost of all labor and materials, in maintaining the
Common Areas pursuant to Section 6.2; plus
i. An administrative fee equal to fifteen percent (I 5%) of the
costs specified in Section 6.5.a.i above (but such fee shall not be charged on insurance
costs, taxes or on items, such as parking lot repaving, chargeable to capital account under
generally accepted accounting principles); and provided that if the Maintenance Director
engages a third-party to act as its agent in maintaining the Shopping Center, the
Maintenance Director shall be solely responsible for the payment as and when due of the
agent's actual fees out of the Maintenance Director's administrative fee specified in this
Section 6.5.a.ii or other funds of the Maintenance Director, and no such fees of such
third-party agent shall be included in Reimbursable Costs, or included in amounts used to
calculate the administrative fee owed Maintenance Director under this Section 6.5.aii.
b. Exclusions. Reimbursable Costs shall not include, or shall have
deducted or excluded from them, the following:
i. Amounts paid to persons or entities affiliated with,
controlled by, controlling of, or under common control with, Maintenance Director, except
as specifically approved in advance by Fred Meyer and Trimark after full disclosure of the
nature of the relationship, and then only in amounts not greater than would have been
charged by an unaffiliated party in an arms-length transaction;
ii. Rent under any ground or other underlying lease, or any debt
service on the Shopping Center, or interest on debt or amortization payments on any
mortgages or deeds of trnst or any other debt for borrowed or advanced money;
ii. Leasing commissions, attorneys' fees, costs and
disbursements, and other expenses (including advertising) incurred in connection with
leasing, renovating or improving space for tenants or other occupants or prospective
tenants or occupants of the Shopping Center;
iii. Costs (including permit, license and inspection fees) incurred
in renovating or otherwise improving or decorating, painting or redecorating space or
tenants or other occupants or vacant space;
1v. Maintenance Director's costs of any services sold to tenants
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or other occupants for which Maintenance Director is entitled to be reimbursed by such
tenants or other occupants as an additional charge or rental over and above the basic rental
and escalations payable under the lease with such tenant or other occupant, and costs
associated with valet parking (including wages and other expense);
v. Depreciation, amortization and other non-cash deductions of
Maintenance Director;
vi. Damages recovered by any tenant due to violation by
Maintenance Director of any of the terms and conditions of any lease or any other lease
relating to the Shopping Center, or any fine or penalty relating to a violation of law by
Maintenance Director or any other tenant;
vii. Any cost related to the operation of Maintenance Director as
an entity rather than operation of the Shopping Center, including the cost of formation of
the entity, internal accounting, legal matters, preparation of tax returns, etc.;
vm. Amounts received by Maintenance Director through
proceeds of insurance to the extent the proceeds are compensation for expenses which
were previously included in Common Area costs hereunder;
ix. Costs allocable to properties other than the Shopping Center
in which Maintenance Director has an interest;
x. Costs incurred by the Maintenance Director for the services
of an agent or a manager or management company of for office overhead or compensation
of its employees except to the extent included in the administrative fee referenced in
Section 6.5 .a.ii;
xi. Costs not included in an approved "Budget" or as permitted
"extraordinary expenses", as such terms are defined below:
c. Budget. The Maintenance Director shall prepare and submit to Fred
Meyer or Trimark, as applicable, a detailed written budget of the maintenance activities to
be performed by it (the "Budget"). The Budget shall set forth the prorata cost for Fred
Meyer and Trimark for those Common Area maintenance items described in Exhibit E.
The cost of all other Common Area maintenance items set forth in the Budget shall be
based on actual expenses incurred on, as applicable, the Fred Meyer Parcel and the
Trimark Parcel. Fred Meyer or Trimark, as applicable, will review and approve or
comment on the Budget within thirty (30) days ofreceipt; failure to approve the Budget in
writing will be deemed disapproval. During the review and approval period, all invoices
must be approved by Fred Meyer and Trimark prior to payment. Maintenance Director
will update the Budget annually and submit it for review and approval as provided above;
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no change to the Budget will be made without the written approval of Fred Meyer and
Trimark. Notwithstanding anything to the contrary in this Section 6.5c, (i) Trimark shall
pay all of the expense to maintain, repair and resurface the three (3) drive lanes marked as
"Tri mark Drive Lanes" on the Site Plan, and (ii) Fred Meyer shall pay all of the expense to
maintain, repair and resurface the two (2) drive lanes marked as ''Fred Meyer Drive Lanes"
on the Site Plan.
d. Extraordinary Expenditures. Maintenance Director shall not be
entitled to reimbursement for extraordinary expenditures ( as defined below) without the
specific prior written approval by, as applicable, Fred Meyer or Trimark of the
expenditure, except for the reasonable cost incurred by Maintenance Director in connection
with its Maintenance Director responsibilities with respect to any emergency action
required to prevent injury to persons or property and the reasonable cost of replacing dead
or dying landscaping vegetation or the reasonable cost incurred for unforeseen
extraordinary snow removal efforts, where such action is required before approval can
reasonably be obtained and such action is not required due to any negligence or
misconduct of Maintenance Director. In such cases, Maintenance Director shall
nevertheless use all reasonable steps to contact, as applicable, Fred Meyer or Trimark and
inform such party as to the nature of the emergency and the action Maintenance Director is
taking, and shall promptly provide a more complete report. The term "extraordinary
expenditures" a used in this paragraph means expenditures in excess of Five Thousand
Dollars ($5,000) for any individual supply or piece of equipment or any group of supplies
or pieces of equipment, and not included in a Budget approved by, as applicable, Fred
Meyer or Trimark. Expenditures which are not "extraordinary expenditures" shall be
made in accordance with the Budget.
e. Billing for Expenses. The Owner of each Parcel ( or its respective
tenants or agents, as it may direct) shall be billed monthly for its share of Reimbursable
Costs based on actual Reimbursable Costs incurred by the Maintenance Director in the
prior month. Each monthly bill shall include supporting documentation. The first billing
date will be the first day of the first full calendar accrual month following the date
Maintenance Director is appointed, Such bills shall be due and payable within twenty (20)
days after receipt of the bill.
In the event that an Owner constructs a building in the Building
Area on such Owner's Parcel, the proportionate shares shall be recalculated. The
Maintenance Director shall not be entitled to reimbursement from any Owner ( or its
tenants or agents) for any item of Common Area maintenance or insurance expense
(including the administrative fee described in Section 6.5(a)(ii) above) for which a bill is
not submitted to the Owner (or its tenants or agents, as it may direct) within eighteen (18)
months after the end of the calendar year in which said expense is incurred.
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f. Review of Records. Maintenance Director shall maintain complete
and accurate records relating to the performance of its obligations under this Declaration.
Fred Meyer or Trimark, as applicable, shall have the right to inspect and copy such records
at any time during regular business hours upon one (1) business day's notice. In addition,
Maintenance Director's records, which shall include but not be limited to accounting
records, written policies and procedures, supporting documentation, general ledger entries,
and any other supporting evidence deemed necessary by, as applicable, Fred Meyer or
Trimark to substantiate charges related to this Declaration (all foregoing hereinafter
referred to as "records"), shall be open at least annually to inspection and/or reproduction
and subject to audit by an accountant selected by, as applicable, Fred Meyer or Trimark, to
the extent deemed necessary by such party to adequately permit evaluation and verification
of amounts paid or payable by, as applicable, Fred Meyer or Trimark under this
Declaration. Fred Meyer or Trimark or its designee, as applicable, shall be afforded access
to the records throughout the term of this Declaration and for a period of three (3) years
after termination of this Declaration or longer if required by law. Fred Meyer or Trimark
or its designee, as applicable, shall have access to Maintenance Director's facilities and
shall be provided adequate and appropriate work space, in order to conduct audits in
compliance with this paragraph. If an audit inspection or examination in accordance with
this Section discloses overcharges (of any nature) by Maintenance Director to, as
applicable, Fred Meyer or Trimarkin excess of three percent (3%) of the total billings, the
actual cost of the audit shall be reimbursed by Maintenance Director to the examining
pa1ty. Overpayments revealed by the audit shall be refunded by Maintenance Director to
the Owners; underpayments may be billed by Maintenance Director. Any adjustments
and/or payments which must be made as a result of any such audit or inspection shall be
made within a reasonable amount of time (not to exceed ninety (90) days) from
presentation of the party's findings to Maintenance Director.
7. UTILITY EASEMENTS.
7.1. Grant of Utility Easements. Subject to the terms and conditions in this
Declaration, each Owner shall have a nonexclusive easement and right to operate,
maintain, replace, repair, remove, improve, enlarge, reconstruct and, subject to the
conditions of this Declaration, relocate any and all Utility Lines serving such Owner's
Parcel currently existing over, under or across the Utility Easement Area on each other
Owner's Parcel. Subject to the restrictions in this Declaration, each Owner shall have the
nonexclusive right to install, operate, maintain, replace, repair, remove, improve, re locate
and reconstruct Utility Lines over, under or across the Utility Easement Area. provided that
any such actions do not unreasonably interfere with or impair (i) the rights of Permitted
Persons to use the Common Area for the purposes set forth herein, or (ii) the operation by
Permitted Persons of businesses in the Shopping Center, and further provided that such
actions shall not be permitted in November or December if they impact the Fred Meyer
Parcel, in the sole discretion of the Owner of the Fred Meyer Parcel ( other than in cases
requiring emergency repair to restore utility service or preserve and protect one or more of
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the Parcels and improvements located thereon).
7.2. Terms of Utility Easements. Subject to the provisions of this Section 7.2,
the Owners shall have the right to install new Utility Lines through the Common Area. All
Utility Lines shall be underground unless required to be above ground by applicable law or
the utility providing such service. The location of new or relocated Utility Lines and the
foregoing work shall be subject to the prior written consent of the Owner over, under, or
across whose property the Utility Lines are proposed to be located. Such consent shall not
be unreasonably withheld or delayed. The Owner whose consent is sought may condition
its consent on the Utility Lines uot being located where the Owner intends to construct a
building or other facility whose utility, use, construction or installation may be
unreasonably interfered with by the presence of such Utility Lines unless the Owner
proposing to locate such Utility Lines agrees to relocate the same to another location on the
Utility Easement Area at its expense in the event such building or facility is actually
constructed or such use is proposed to be commenced. Subject to the preceding sentence,
if such Owner subsequently constructs a building over a Utility Line previously installed
with that Owner's consent, such Owner shall relocate the line at its expense and in such a
manner as to keep to an absolute minimum the disruption of utility services. When a
Utility Line is installed on another Owner's Parcel the Owner who installs the line shall
give the other Owner a legal description of the location of the Utility Line and a legal
description of the easement area for such Utility Line. At its own cost and expense, each
Owner (a) shall maintain and repair the Utility Lines installed by such Owner ( or the
Owner's predecessors in title); and (b) shall repair any damage to landscaping, pavement,
buildings and all other improvements on the Shopping Center resulting from any work in
connection with such Utility Lines or from the operation of such Utility Lines.
7.3. Storm Drainage. Each Owner shall have the perpetual right and easement
to discharge surface storm drainage and/or runoff from the Owner's Parcel over, upon and
across the Common Areas of the other Parcels in the Shopping Center. No Owner shall
alter or permit to be altered the surface of the Common Area or the drainage/retention
system constructed on its Parcel if such alteration would materially increase the flow of
surface water onto an adjacent Parcel either in the aggregate or by directing the flow of
surface water to a limited area.
8. b,LTERATION OF COMMON AREAS, BUILDING AREAS AND
BUILDING ENVELOPES.
8. I. Iu General. With respect to the portion of the Common Area lying within
an Owner's Parcel, that Owner shall have the right to alter, rearrange, reduce or relocate
(collectively, "Common Area Modification"), at such Owner's cost, that portion of the
Common Area and Common Area Improvements, so long as doing so does not materially
diminish the rights granted or materially adversely affect the purposes stated under
Sections 3 or 7. If such proposed Common Area Modification will materially diminish the
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rights granted or materially adversely affect the purposes stated under Sections 3 or 7, then
such Common Area Modification shall not be allowed without the prior written consent of
the Declarant, which consent shall not be unreasonably withheld or delayed. Each Party
hereby reserves the right, from time to time without obtaining the consent or approval of
any other Party, to make at its own expense any insignificant change, modification, or
alteration in its portion of the Common Area, including the installation of convenience
facilities such as mailboxes, public telephones and benches, provided that:
i. the accessibility of such Common Area for pedestrian and
vehicular traffic (as it relates to the remainder of the Shopping Center) is not unreasonably
restricted or hindered, and all parking stalls and rows and vehicular traffic lanes shall
remain generally as shown on the Site Plan;
ii. there shall be maintained at all times within such Common
Area, the number of vehicular parking spaces as shown on the Site Plan, as well as all
governmental rules, regulations, and/or ordinances relating to parking requirements;
111. no governmental rule, ordinance, or regulation shall be
violated as a result of such action, and such action shall not result in any other Party being
in violation of any governmental rule, ordinance, or regulation;
iv. no change shall be made in the access points between the
Common Area and the public streets; and
v. at least thirty (30) days prior to making any such change,
modification, or alteration, the Party desiring to do such work shall deliver to each other
Party copies of the plans therefor, and provided further that such work shall not occur in
November or December.
8.2 Required by Governmental Authority. If any governmental authority
requires any change in the Common Area, the Owners of the portions of the Common Area
affected shall make every reasonable effort to minimize the negative impact of such
changes on the rights and purposes set forth in Sections 3 and 7. In particular, if any
governmental authority, by condemnation or otherwise, eliminates or reduces any access
between public streets and the Shopping Center, the Owner of the affected property shall
make every reasonable effort to obtain alternative access for such Owner's property.
8.3 Relocated Common Area. All of the rights and obligations set forth herein
shall be fully applicable to any altered, rearranged or relocated Common Area, which shall
then be deemed to be the Common Area.
9. HAZARDOUS SUBSTANCES. Each Owner shall maintain its Parcel and
conform its activities and the activities of its Permitted Persons on that Owner's Parcel in
compliance with all applicable requirements under applicable Environmental Laws (as
defined below) with respect to the clean-up or remediation of Hazardous Substances ( as
21
20070921001927.027
defined below) the protection of the environment, the control of Hazardous Substances,
and the use, generation, transport, storage, removal and treatment of Hazardous
Substances, and in a manner that reasonably minimizes the risk of liability, or damage to
human health or the environment, from the release of Hazardous Substances. Any Owner
or occupant who shall violate (or whose tenant, licensee, or subtenant shall violate) this
restriction regarding Hazardous Substances shall be liable to all other Owners for all
damages resulting to such Owners from such violation and shall promptly undertake and
complete all required cleanup and remediation.
As used in this Declaration, the term "Hazardous Substances" shall mean any
materials which because of their quantity, concentration or physical, chemical or infectious
characteristics may cause or pose a present or potential hazard to human health or the
environment when improperly handled, treated, stored, transported, disposed of or
otherwise managed under applicable laws and regulations presently in effect. The term
shall include, but is not limited to, petroleum, gasoline and all petroleum hydrocarbons, all
hazardous substances, hazardous materials and hazardous wastes listed by the U.S.
Environmental Protection Agency and°the state in which the Shopping Center is located
under the comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), the Resource Conservation and Recovery Act (RCRA), the Toxic Substances
Control Act (TSCA), the Federal Water Pollution Control Act (FWPCA), the Emergency
Planning and Community Right-to-Know Act (EPCRA) and any and all other federal and
state statutes applicable to the protection of human health or the environment ( collectively,
the "Environmental Laws").
10. CONDEMNATION. This Section l 0 shall apply in the case of a condemnation,
or a sale in lieu of condemnation, or an inverse condemnation having the same effect,
concerning a portion or all of the Shopping Center. The award or purchase price for the
taking shall be paid to the Owner of the property so taken. The other Owners who may
have an easement, or may have other property interest or rights under this Declaration, in
the land so taken do hereby ( or by accepting the prope1ty covered by this Declaration shall
be deemed to) release or waive those interests and rights with respect to such award or
purchase price. Such other Owners shall, however, have the right to seek an award or
compensation for the loss of their easement right and other interest and rights, but only to
the extent such award or compensation paid or allocated for such loss does not reduce the
amount paid to the Owner of the property taken. If any access road to the Shopping Center
is taken, the Owner of the property on which the access road was located shall use such
Owner's best efforts to provide promptly a substitute access road to the Shopping Center
on such Owner's Parcel.
11. INSURANCE. Throughout the term of this Declaration, each Owner shall
maintain, with respect to the Easement Area and Common Area within that Owner's Parcel
a policy or policies of commercial general liability insurance with a combined single limit
of liability of not less than (a) Two Million Dollars ($2,000,000.00) for bodily or personal
22
20070921001927.028
injury or death and for property damage arising out of any one occurrence, nor less than (b)
the amount of insurance normally maintained by owners of similar properties. The
Owners will provide each other certificates of insurance showing that such policies of
insurance: (i) name all other Owners as additional insureds; (ii) are issued for periods of
not less than one year; and (iii) are issued by insurance companies qualified to do business
in the state in which the Shopping Center is situated and having a general policyholder's
rating of not less than A-and a financial rating of not less than Class X as rated in the most
current available "Best's" Insurance Reports. The insurance requirements in this Section
11 may be carried by an Owner under a plan of self insurance, provided that such Owner
has and maintains a net worth of at least One Hundred Million Dollars ($100,000,000.00).
If any Owner or any Owner's Permitted Persons places any underground storage tanks
under the Owner's Parcel, the Owner, upon written request from any other Owner, shall
provide proof that the Owner or Permitted Person has complied with all laws, regulations
and ordinances concerning such tanks, including proof of insurance and other financial
responsibility that is so required.
12. DP.FAULTS.
12.1. Defaults. A person shall be deemed to be in default of this Declaration
upon the expiration of thirty (30) days (ten (10) days in the case of failure to pay money)
from receipt of written notice from any Declarant, Owner or Prime Lessee specifying the
particulars in which such person has failed to perform such person's obligations under this
Declaration unless such person has, prior to the expiration of the cure period, cured the
matters specified in the notice of default.
12.2. Injunctive Relief. In the event of a violation or threatened violation by any
person of the restrictions contained in this Declaration, Declarant or any or all of the
Owners or Prime Lessees shall, in addition to any other remedy available at law or in
equity, have the right to enjoin such violation or threatened violation in a court of
competent jurisdiction, it being acknowledged that monetary damages will be an
insufficient remedy for such a violation.
12.3. Owners' Rights of Self Help.
a. Whenever an Owner is in default under Section 12.1, and without
limiting any other rights that any other Owner may have in the event of such a default, at
law or in equity, the non-defaulting Owners shall have the right (but not the obligation) to
perform the obligation of the defaulting Owner giving rise to such default, provided that
the non-defaulting Owners first give the defaulting Owner at least ten (I 0) days notice of
their intention to perform the obligation, and provided that the defaulting Owner has not
cured the default prior to expiration of such ten ( I 0)-day period. The non-defaulting
Owners shall be entitled to reimbursement from the defaulting Owner or reasonable costs
incurred in performing or contracting for performance of such obligations. Reimbursement
23
20070921001927.029
owing but not promptly made shall bear interest at the lesser of (I) the highest rate
permitted by law or (2) the "prime" or "reference" rate of interest as publicly announced
from time to time in the Wall Street Journal by Chase Manhattan Bank or its successor (or
if such designated bank's prime or reference rate of interest is no longer publicly available,
then the prime or reference rate of interest of such other regional or national bank as the
non-defaulting Owners may select by written notice to the defaulting Owner), plus four
percent ( 4%) per allllum, from the date of billing until reimbursement is made.
b. The non-defaulting Owners shall have a lien on the Parcel of the
defaulting Owner that fails to reimburse the non-defaulting Owners as required by Section
12.3.a; provided, however, if a bona fide dispute exists as to the existence of such default
or the amount due, and all undisputed amounts are paid, there shall be no right to place a
lien on such Owner's Parcel until such dispute is settled by final court decree or mutual
agreement. Such lien shall only be effective when filed for record by non-defaulting
Owners as a claim of lien against the defaulting Owner in the office of the recorder of the
county in which the Shopping Center is located, signed and acknowledged, which shall
contain at least: (I) an itemized statement of all amounts due and payable pursuant thereto;
(2) a description sufficient for identification of that portion of the Parcel of the defaulting
Owner which is the subject of that lien; (3) the name of the Owner or reputed Owner of the
Parcel which is the subject of the lien; and (4) the names and addresses of the non-
defaulting Owners. The lien, when so established against the real property described in the
lien, shall be prior and superior to any right, title, interest, lien or claim which may be or
has been acquired or attached to such real property after the time of filing the lien. The
lien shall be for the use and benefit of non-defaulting Owners and may be enforced and
foreclosed in a suit or action brought in any court of competent jurisdiction.
12.4 Effect of Default or Non-Use. No Owner or any other person shall be
entitled to cancel, rescind, or otherwise terminate this Declaration on account of any
de(ault hereunder, but this shall not limit any Owner's rights and remedies granted
hereunder on account of such default. Abandonment or non-use (after receipt of a
certificate of occupancy) of easement rights hereunder or the property by an Owner will
not reduce or affect an Owner's obligations to perform or comply with the terms of this
Declaration.
13. TERM. This Declaration shall be perpetual ( except as provided below) and shall
run with the land and shall be binding on and shall inure to the benefit of the parties hereto,
their heirs, successors or assigns. By unanimous consent, all Owners may agree to
terminate this Declaration, but not the easements contained herein, in which case they shall
cause to be recorded an instrument acknowledging such tetmination.
24
20070921001927.030
14. GENERAL PROVISIONS.
14.1. Status of Title: Property Taxes. This Declaration is granted subject to all
prior easements and encumbrances of record. Each Owner warrants that it will defend the
title and other Owner's interests under this Declaration against any mortgage, tax lien or
construction or other lien claim: (i) which affects the Shopping Center, (ii) which asserts
priority over the interest of the other Owner(s) in enforcing this Declaration or which
affects any other Owner(s) rights under this Declaration, and (iii) which is attributable to
the party itself or its tenants, agents, contractors or subcontractors. This Declaration will
not be subordinated or rendered inferior to any future financing by any Owner. Each
Owner shall pay before delinquent all property taxes and assessments assessed on such
Owner's Parcel and the improvements constructed thereon.
14.2. Protection of Rights of Mortgages. No breach of the provisions in this
Declaration shall defeat or render invalid the lien of any mortgage(s) or deed(s) of trust
now or hereafter executed which affects an Owner's interests: provided, however, that
upon any sale under foreclosure of any mortgage( s) or under the provisions of any deed( s)
of trust, any purchaser at such sale, and it successors and assigns, shall hold any and all
property interest so purchased subject to all of the provisions of this Declaration.
14.3. Waiver. No provision of this Declaration shall be deemed to have been
waived unless such waiver is in writing signed by the waiving party. Failure at any time to
require performance of any provision of this Declaration shall not limit an Owner's or
Prime Lessee's right to enforce the provision. Any waiver of any breach of any provision
shall not be a waiver or any succeeding breach or a waiver of any provision of this
Declaration.
14.4. Attorneys' Fees. In the event suit or action is instituted to interpret or
enforce the terms of this Declaration, the prevailing party shall be entitled to recover from
the other party such sum as the court may adjudge reasonable as costs of litigation
(including discovery costs), and as attorneys' fees in preparation for and at trial, on appeal
of such suit or action and on any petition for review, in addition to all other sums provided
by law.
14.5. Indemnity. Each Owner shall defend, indemnify and hold the other
Owners harmless from any claim, loss, liability or expenses (including discovery costs and
other litigation costs, and reasonable attorneys' fees) that: (a) arise out of or in connection
with the failure to perform and comply with the terms, restrictions and provisions of this
Declaration by the Owner; or (b) arises out of or in connection with the intentional acts or
gross negligence of the Owner or the employees, representatives, agents, tenants, and
independent contt'actors of the Owner, or any occurrence on or in the indemnifying
Owner's Building Area; or ( c) arises or results from the performance of any construction
activities performed or authorized by such indemnifying Owner: provided that the
25
20070921001927.031
obligation to defend, indemnify and hold harmless for matters described in clauses (b) and
( c) shall not apply in the event of concurrent negligence or misconduct of the indemnified
person, or its agents, contractors or employees (while acting in such capacity).
14.6. Entire Agreement. This Declaration supersedes and replaces all written
and oral agreements previously made or existing with respect to the matters set forth
above.
14.7. Governing Law. This Declaration will be governed and construed in
accordance with the laws of the state in which the Shopping Center is situated.
14.8. Status Certificate, Information. Within twenty (20) days after receipt of a
written request, an Owner or Prime Lessee shall promptly deliver a written status
certificate to the Owner or Prime Lessee requesting the same, stating (i) the current status
of any work being performed or costs previously incurred which may be subject to
reimbursement under the Declaration; (ii) whether this Declaration is unmodified and in
full force and effect; and (iii) whether (to the best of the party's knowledge) the other
Owner(s) or Prime Lessee(s) are in compliance with their respective obligations hereunder,
and any other matters that may be reasonably requested. Any request for reimbursement of
costs for which reimbursement is provided herein must be made within six ( 6) months after
the end of the calendar year in which the costs are incurred and will be accompanied with
such information on the work performed and costs incurred as an Owner or Prime Lessee
may reasonably require to verify the request. The party requesting reimbursement will
promptly respond to requests for additional information about such work and costs.
14.9. Notices. Notices given under this Declaration shall be in writing and
delivered by certified or registered U.S. mail, postage paid with return receipt requested;
by United States express mail or other established express delivery service (such as Federal
Express), postage or delivery charge prepaid; by facsimile or other telecommunication
device capable of transmitting or creaiing a written record; or personally. Each Owner
shall give notice to each other Owner of its address for notice by written notice to the other
Owners. Unless Declarant designates another address for notice by notice given pursuant
to this Section, notice to Declarant should be sent to the following address:
Mail Addresses for Notice Purposes:
Fred Meyer Stores, Inc.
Attn: Group Vice President 04002-33R
PO Box 42121
Portland, OR 97242-0121
Facsimile No.: 503.797.3539
26
Overnight Delivery Addresses for Notice
Purposes:
Fred Meyer Stores, Inc.
Attn: Group Vice President 04002-33R
3800 SE 22 nd Avenue
Portland, OR 97202
Telephone No. 503.797.3550
With a copy to:
Fred Meyer Stores, Inc.
Attn: Corporate Law Dept. 04002-23C
PO Box 42121
Portland, OR 97242-0121
Facsimile No.: 503.797.5623
Mail Addresses for Notice Purposes:
Trimark-North Benson, L.P.
Attn: Al Jiwani
406 Ellingson Road, Second Floor
Pacific, Washington 98047
Facsimile No.: 253.833.7989
With a copy to:
Fred Meyer Stores, Inc.
Attn: Corporate Law Dept. 04002-23C
3800 SE 22nd A venue
Portland, OR 97202
Telephone No.: 503.797.4142
20070921001927.032
Overnight Delivery Addresses for Notice
Purposes:
Trimark-North Benson, L.P.
Attn: Al Jiwani
406 Ellingson Road, Second Floor
Pacific,Washington 98047
Telephone No.: 253.833.7863
In the absence of such notice of an Owner's address for notice purposes, any notice under
this Declaration may be given to the address to which property tax statements are delivered
by the taxing authority. For the purposes of this Declaration, the term "receipt" shall
mean the earlier of any of the following: (i) the date of delivery of the notice or other
document to the address specified pursuant to this Section as shown on the return receipt or
by the records of the courier; (ii) the date of actual receipt of the notice or other document
by the office of the person or entity specified pursuant to this Section; or (iii) in the case of
refusal to accept delivery or inability to deliver the notice or other document, the earlier of
(A) the date of the attempted delivery or refusal to accept delivery; (B) the date of the
postmark on the return receipt; or (C) the date of receipt of notice of refusal or notice of
nondelivery by the sending party.
14.10 Amendments. This Declaration may not be modified, amended or
terminated except by the written agreement of each Declarant. An Owner may waive one
or more of its rights under this Declaration in writing signed by the party, and such writing
need not be recorded. Any such modification or amendment shall be effective when
recorded in the real property records of the County in which the Shopping Center is
situated.
14.11 Effect of Declaration. Nothing in this Declaration, express or implied,
shall confer upon any person, other than the Owners and Prime Lessees, any right or
remedies under or by reason of this Declaration. The rights and remedies of tenants and
other persons are limited to those contained in the lease agreements or other agreements
the parties may have with such tenants or other persons and to those rights and remedies
otherwise explicitly conferred by such parties on such persons. Nothing in this Declaration
27
20070921001927 .033
shall prevent any Owner or Prime Lessee from imposing on such Owner's or Prime
Lessee's own tenants or other persons being granted rights of use, either expressly or by
implication, by the Owner or Prime Lessee, such rules, regulations and restrictions as the
Owner or Prime Lessee may determine to be necessary or appropriate. Each right granted
pursuant to this Declaration is expressly for the benefit of the property described in the
attached Exhibits.
14.12 Successors and Assigns. Every obligation under this Declaration shall run
with the land and shall be binding upon the Owners and upon the heirs, personal
representatives, successors and assigns of each of the foregoing, as Owner or Prime Lessee
of the Parcels and any subdivision thereof. Any reference to an Owner or Prime Lessee
shall apply only so long as the party owns or is a Prime Lessee with respect to property
within the Shopping Center (unless the context clearly requires otherwise, and except as
otherwise provided in the definition of"Declarant" with respect to transfer ofDeclarant's
rights), and thereafter such reference shall be intended to apply to such party's successor or
assign. Any transferee of any Owner's Parcel shall automatically be deemed, by
acceptance of title to such property, to have assumed all of the obligations set forth in this
Declaration relating to such property. The Owner or Prime Lessee shall, when such
transfer is consummated, he relieved of all liability that arises thereafter under this
Declaration, but such Owner or Prime Lessee shall not hereby be relieved of liability that
arose before such time and which remains unsatisfied. An Owner or Prime Lessee has the
right to assign to any tenant(s) of the O\vner or Prime Lessee its rights and obligations
under this Declaration throughout the term of the lease(s) to such tenant(s) or for a shorter
time as the Owner or Prime Lessee may agree, but this shall not release the Owner or
Prime Lessee from its obligations or liabilities under this Declaration.
14. 13 Effect oflnvalidation. If any provision of this Declaration is held to be
invalid or unenforceable for any reason, such provision shall be ineffective to the extent of
such invalidity or unenforceability, but the validity of the remaining provisions of this
Declaration shall not be affected thereby. Furthermore, in lieu of each such invalid or
unenforceable provision, there shall be added automatically as a part of this Declaration a
provision as similar in terms to such invalid or unenforceable provision as may be possible
and be valid and enforceable.
14.14 Not a Public Dedication. Nothing contained in this Agreement shall be
deemed to be a gift or dedication of any portion of the Shopping Center to the general
public or for the general public or for any public purpose whatsoever, it being the intention
of the parties that this Declaration shall be strictly limited to and for the purposes herein
expressed.
14.15 No Partnership. No provision of this Declaration or previous (or
subsequent) conduct or activities ·of present or subsequent Owner(s) will be construed: (i)
as making present or subsequent Owner(s) a partner, joint venturer, agent or principal of or
28
20070921001927 .034
with each other; or (ii) as creating any express or implied obligation for Fred Meyer to
operate or continue to operate a Fred Meyer grocery/general merchandise store or
otherwise on the Fred Meyer Parcel. No person will have any claim against ( or right to
recover any damages or costs from) Fred Meyer in the event Fred Meyer does not operate a
Fred Meyer grocery/general merchandise store or otherwise on the Fred Meyer Parcel.
14.16 Exercise of Approval Rights; Limitation of Claims. Declarant shall
exercise its approval rights under this Declaration in good faith based on Declarant's
business judgment and actual knowledge, and any exercise of such rights in good faith
shall be binding. By acceptance of its deed to a Parcel, each Owner expressly agrees that
Declarant will not be liable in damages for any denial or withholding by Declarant of
consent or approval under this Declaration, and that the·sole remedy of the party requesting
such consent or approval shall be specific performance or other injunctive relief.
14.17 Sale and Sale-Leaseback Purchaser. Notwithstanding anything to the
contrary contained in this Declaration, it is expressly agreed that in the event of a Prime
Lease on a Parcel, the parties and their successors and assigns as Owners or Prime Lessees
of the Parcel shall, for the duration of the Prime Lease, look solely to the Prime Lessee for
(and the Prime Lessee shall be liable therefor) the performance of any obligations that
either the Prime Lessee or the Prime Lessor shall have under this Declaration, and the
Prime Lessor shall not be liable for any breach, non-compliance or failure to perform any
obligation hereunder by the Prime Lessee or with respect to its Parcel. By entering into a
Prime Lease, Prime Lessee shall conclusively be deemed to have agreed to be subject to all
terms and provisions of this Declaration, including the provisions of this Section, and no
consent or other acknowledgment shall be required of the Prime Lessee.
14.18 Third Party Beneficiary Rights. This Declaration is not intended to
create, nor shall it be in any way interpreted or construed to create, any third party
beneficiary rights in any person not an Owner of a Parcel, unless otherwise expressly
provided herein.
14.19 Force Majeure. The period of time provided in this Declaration for the
performance of any act shall be extended for a period or periods of time equal to any
period or periods of delay caused by strikes, lockouts, fire or other casualty, the elements
or acts of God, refusal or failure of governmental authorities to grant necessary permits and
approvals for the act (the parties agreeing to use reasonable diligence to procure the same),
or other causes, other than financial, beyond their reasonable control.
14.20 Interpretation. The section headings in this Declaration are for ease of
reference only and shall not be deemed to define or limit the scope or content of any of the
terms, covenants, conditions or agreements in this Declaration. In construing the
provisions of this Declaration and whenever the context so requires, the use of a gender
29
20070921001927.035
shall include all other genders, the use of the singular shall include the plural, and the use
of the plural shall include the singular.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be duly
executed as of the day and year first written above.
STATE OF OREGON )
) ss.
County of Multnomah )
The fore i inst ment was ac owledgecJ,,~e~ me t,his /~ day ofDJfTr t1Vl1 h,, r
2otf}, by · ,, the \Uff....£2...:(0Aide,J; of FRE~
STORES, NC., an Ohio orporation on behalf of the corporation.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official seal the
day and year first above written.
•
OFFICIAL SEAL
ANITA K HARRISON
NOTARY PUBLIC·OAEG.ON
COMMISSION NO. 409096
MY COMMISSION EXPIRES AUGUST 14, 2010
30
TR1MARK-NORTH BENSON, L.P., a
Washington limited partnership
By: North Benson GP, LLC,
20070921001927.036
a Delaware limited liability company,
General Partner
By:
State of Washington )
) ss.
County of )
On this __tl_ day of ~,.J,,.,._ , in the year of 20 ~' before me, a Notary
Public in and for said State, personally appeared Al Jiwani, known or identified to me to be
the manager of North Benson GP, LLC, the general partner ofTrimark-North Benson,
L.P., the partnership that executed the instrument or the person who executed the
instrument on behalf of said partnership, and acknowledged to me that such corporation
executed the same.
Notary Public for W, shington -p.._; 1 e, 7
Residing at & /f.e_, vt<L
My Commission expires· 0 f>-;{TG > 6 'l
31
EXHIBIT A
Legal Description of Fred Meyer Parcel
Lot Z of King County Boundary Line Adjustment No. 10710040, recorded August 22,
2007 under Recording No. 20070822900006 in King County, Washington.
20070921001927.037
20070921001927.038
EXHIBIT B
Legal Description of Trimark Parcel
Lots X and Y of King County Boundary Line Adjustment No. L07L0040, recorded August
22, 2007 under recording No. 20070822900006 in King County, Washington.
20070921001927.039
EXHIBIT C
Site Plan
20070921001927,039
EXHIBITC
Site Plan
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20070921001927.041
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EXHIBIT E
Schedule of Maintenance Costs Sharing Ratios
1. Landscaping and Storm Drainage Expenses. The total square footage of all the
retail in both owner's parcels shall participate in the landscaping expenses and storm
drainage expenses as described in Section 6.2a(v) and (vi). This will be billed on a prorata
basis as follows:
Fred Mever 176,030
BldgJ 5,520 (Fred
Mever Fuel)
Bldg A 5,763
BldgB 7,055
Bldg C 8,171
Total Fred Meyer 202,539 sf
Trimark
PadF 3,200
PadG 2,596
PadH 4,200
PadL 4,000
BldgE 10,025
BldgK 25,931
BldgM 7,960
BldgN 13,566
Total Trimark 71,478 sf
Total Shopping Center 274,017 sf
Landscaping prorata
FredMe er 202,539/274,0!7 = 74%
Trimark 7!,478/274,017 = 26%
2. Parking Lot Lights Expenses.
The following will participate in the expense of the operation of(but not maintaining,
repairing, or replacing) the parking lot lighting
Fred Mever Total 202,539
Trimark
PadL O (this pad is
separately
metered)
BldgE 10,025
Bid!! K 25,931
BldgM 7,960
Total Trimark 43,916 sf
Fred Meyer 202,539/246,455 = 82%
Trimark 43,916/246,455 = 18%
20070921001927.045
20070921001927.04G
SCHEDULE 4.3 ·
Current Tenants
TENANT START DATE
Equilon Enterprises LLC December 23, 1991
Starbucks Coffee Company November 25, 2005
Bank of America May 5, 1988
CSK Auto, Inc. ( dba Schucks #690) November 17, 1987
Shari's Management Corporation January 29, 1988
Petco Animal Supplies September 16, 1987
Change Hak Lee and Mi Ha Lee ( dba
Dry Clean US) December 1, 1997
Ear-Wise, Inc. Januaiy 1, 1991
Evergreen State Driving School LLC April 14, 2003
Mark's Card Shops, Inc. November 1, 1987
< Chung Kim and Song Kim . ( dba Baskin Robbins) November 1, 1991
Milagro, Inc. ( dba By Owner Realty) March 1, 2001
K. Sang Yoon ( dba Pho World) December 15, 2006
Regis Corporation ( dba Hairmasters) December 11, 1992
La Autentica LLC April 1, 2003
Edward D. Jones & Company April 1, 2001
Household Finance Corporation III June 1, 1993
Nam Khuu ( dba Fancy Nails) December 20, 1998
Vu-Minh Nguyen and Hoang Cong
(dba Sure Cuts) April 1, 1991
Jonathan Minh Ta (dba Wash N Shop) October 6, 1999
Big O Tires, Inc. December I, 1988
G'DUP Enterprizes Inc.
( dba RK Auto Detailing) September 15, 2007
S.C. Rice Enterprises, Inc.
20070921001927.047
( dba All Tune & Lube) May I, 2007
Grand Junction Enterprises, Inc.
( dba UPS Store) November I, 2004
Cencon Corporation ( dba H & R Block) November 1, 2004
QED BY MY, LLC ( dba Kumon) May 18, 2007
Gary & Joanne Jordanger (Jordangers) May 18, 2007
Music Centers, Inc. June 12, 1997
Payless Shoesource, Inc. October 30, 1987
Rodriguez Benson (dba Torero's) July 25, 1997
Radio Shack Corporation August 2, 1993
Young Soo Lee and Byung Nam Hwang
(dba I Love Teriyaki) March 20, 2001
* Veanessa Katie Doun * Lease pending execution
Georgia & Luis Beltran ( dba Maui Tan) April 16, 2004
Rent-A-Center, Inc. October 5, 2001
Romio' s Franchise Group Assignment effective
I \ '. November 3, 2006
Monetary Management of California
( dba Dollar Mart) October I, 1997
Hollywood Entertainment Corporation May 16, 1995
Sang K. Yoon (dba Smoke & Wine) June 15, 2006
Supercuts, Inc. July 6, 2000
Sau Nguyen & Bich Nguyen
(dba Diamond Nails) May I, 2007
Subway Real Estate Corp June 15, 1995
CBK Financial LLC (dba Jackson Hewitt
Tax Services) May I, 2001
---20070921001927.048
SCHEDULE 4.4
Tenant Leases with Exclusive Use Clauses
Options to
Tenant Renew Lease Expiration
Earwise Hearing None 5/31/2012
Mark's Hallmark None 2/28/2013
Big O Tires 1-5 Yr 12/31/2008
The UPS Store 2-5 Yr 11/30/2014
H &REiock 1-5 Yr 5/31/2010
Rent-a-Center 1-5 Yr 1/31/2011
Romio's 2-5 Yr 3/19/2012
Hollywood Video 1-5 Yr 8/13/2010
0
Starbucks 2-5 Yr 2/28/2016