HomeMy WebLinkAboutREFERENCE_Sunset Highlands Townhomes CCRsi
AFTER RECORDING RETURN TO:
TNHC Washington LLC
1700 NW Gilman Blvd, Suite 220
Issaquah, WA 98027
Attn: Richard Rawlings
Document Title: Declaration of Covenants, Conditions, and Restrictions
for Sunset Highlands Townhomes, a Plat Community
under the Washington Uniform Common Interest
Ownership Act, Chapter 64.90 of the Revised Code of
Washington
Grantors: TPG AG EHC III (NWHM) MULTI STATE 3, LLC; TNHC
Washington LLC
Grantees: TPG AG EHC III (NWHM) MULTI STATE 3, LLC; TNHC
Washington LLC
Abbreviated Legal Description: LOT 2, City of Renton LLA No. LUA22-000265, rec.
20220825900001; and
Parcel 2, City of Renton LLA No. LUA22-000265, rec.
20220825900001 and Lot 1 and 2, City of
Renton Lot Line Rev. No. LLA 003-82, rec. 8204219003
Fully described on Schedule 1.
Assessor’s Property Tax Parcel or Account Nos.: 722780-1405, 722780-1235 and 722780-1405
PLAT RECORDING NUMBER (King County) _____________________________
This Declaration may be recorded before the Plat, in
which case the recording number for the Plat will not
be available.
ADD:
SUNSET HIGHLANDS
TOWNHOMES
ASSOCIATION
UPDATE PER
SOLERA PLAT
RECORDED UNDER
202512240000495
(SEE TITLE REPORT)
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Table of Contents
1. Purpose and Effect .................................................................................................................1
1.1 Basic Declaration .................................................................................................................... 1
1.2 WUCIOA; Plat .......................................................................................................................... 1
1.3 Running Covenant ................................................................................................................... 1
1.4 Information on Schedule ........................................................................................................ 1
1.5 Definitions ............................................................................................................................... 1
1.6 Option Agreement; Positions of TPG and Declarant. ............................................................. 1
1.7 Assignment of Declarant Rights. ............................................................................................. 2
2. Definitions .............................................................................................................................2
3. Restrictions on Use. ...............................................................................................................2
3.1 Effect of Restrictions on Use; Remedies ................................................................................. 2
3.2 Authority of Board .................................................................................................................. 2
3.3 Requirements and Limits ........................................................................................................ 2
3.3.1 Applicable Law ....................................................................................................... 2
3.3.2 Burdens and Benefits ............................................................................................. 2
3.3.3 Households ............................................................................................................ 2
3.3.4 Household Occupations ......................................................................................... 3
3.3.5 Religious and Political Displays .............................................................................. 3
3.3.6 Declarant’s Development of Community .............................................................. 3
3.3.7 Similar Treatment .................................................................................................. 3
3.4 Initial Restrictions on Use ....................................................................................................... 3
3.4.1 Advertising and Signs ............................................................................................. 3
3.4.2 Animals .................................................................................................................. 3
3.4.3 Antennas, Satellite Dishes, Etc ............................................................................... 4
3.4.4 Drainage ................................................................................................................. 4
3.4.5 Fencing ................................................................................................................... 4
3.4.6 Hazardous Activities, Materials, or Chemicals ....................................................... 4
3.4.7 Landscaping ........................................................................................................... 5
3.4.8 Lot Contours .......................................................................................................... 5
3.4.9 Mining or Drilling ................................................................................................... 5
3.4.10 Annoying Lights, Sounds or Odors ......................................................................... 5
3.4.11 Nuisances ............................................................................................................... 5
3.4.12 Number of Dwellings ............................................................................................. 5
3.4.13 Dumping ................................................................................................................. 6
3.4.14 Residential Purposes .............................................................................................. 6
3.4.15 Temporary Structures; Construction Work; Unsightly Conditions ........................ 6
3.4.16 Timesharing ........................................................................................................... 6
3.4.17 Short-Term Rentals. ............................................................................................... 6
3.4.18 Garbage, Etc ........................................................................................................... 6
3.4.19 Underground Utilities ............................................................................................ 7
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3.4.20 Water Use .............................................................................................................. 7
3.4.21 Vehicles .................................................................................................................. 7
3.4.22 Wood Storage ........................................................................................................ 8
3.4.23 No Wood- ............................................................................................................... 8
3.5 Common Area Use Restrictions .............................................................................................. 8
4. Architecture, Landscaping, and Design Review ........................................................................8
4.1 General ................................................................................................................................... 8
4.2 Interest of Declarant; Rights of Declarant .............................................................................. 8
4.3 Improvement Committee ....................................................................................................... 9
4.4 Review Authority; Fees; Assistance by Others ....................................................................... 9
4.5 Design Guidelines ................................................................................................................... 9
4.6 Review Procedures ............................................................................................................... 10
4.7 Variances ............................................................................................................................... 10
4.8 No Waiver of Future Approval .............................................................................................. 10
4.9 Limitation of Liability ............................................................................................................ 11
4.10 Certificate of No Violations ................................................................................................... 11
4.11 Enforcement; Fines ............................................................................................................... 11
4.12 Exemption ............................................................................................................................. 11
5. Lot Owner Maintenance and Repair ..................................................................................... 11
5.1 Maintenance Responsibility.................................................................................................. 11
5.1.1 Lot Owner Responsibility ..................................................................................... 11
5.1.2 Association Maintenance..................................................................................... 12
5.2 Insurance .............................................................................................................................. 12
5.3 Failure to Maintain Lot ......................................................................................................... 12
5.4 Easements for Access, Drainage, Utilities, Retaining Walls, Etc ........................................... 13
5.5 Utilities .................................................................................................................................. 13
5.6 Protected Landscaping ......................................................................................................... 13
5.7 Declarant Maintenance Rights; Declarant Bonds. ................................................................ 13
6. Powers and Responsibilities of the Association ..................................................................... 13
6.1 Acceptance and Control of Property .................................................................................... 13
6.2 Maintenance of Common Elements ..................................................................................... 14
6.3 Private Road Operation and Maintenance. .......................................................................... 14
6.4 Water Management ............................................................................................................. 14
6.5 Liability of Officers and Directors ......................................................................................... 15
6.6 Indemnification; Exculpation ................................................................................................ 15
6.7 Safety and Security ............................................................................................................... 15
6.8 Dissolution of Association ..................................................................................................... 15
6.9 Power and Authority Generally ............................................................................................ 15
6.10 Declarant Control Period ...................................................................................................... 16
6.11 Number of Directors ............................................................................................................. 16
6.12 Resale Certificates ................................................................................................................ 16
7. Tracts and Rights-of-Way ..................................................................................................... 16
7.1 Tracts .................................................................................................................................... 16
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7.2 Rights of Way ........................................................................................................................ 16
7.3 Additional Real Estate ........................................................................................................... 16
8. Association Finance.............................................................................................................. 16
8.1 Budgeting and Assessments; Specially Allocated Assessments ........................................... 16
8.2 Reserves; Reserve Study ....................................................................................................... 17
8.3 Time of Payment; Enforcement; Hardship ........................................................................... 17
9. Development Rights ............................................................................................................. 18
9.1 Reservation of Development Rights ..................................................................................... 18
9.2 Addition of Real Estate ......................................................................................................... 18
9.3 Create Lots, etc ..................................................................................................................... 18
9.4 Subdivision, Combination, or Conversion ............................................................................. 18
9.5 Withdrawal of Real Estate .................................................................................................... 18
9.6 Reallocation of Limited Common Elements ......................................................................... 19
10. Special Declarant Rights; Declarant Rights Generally; Transfer .............................................. 19
10.1 Reservation; Duration ........................................................................................................... 19
10.1.1 Improvements ...................................................................................................... 19
10.1.2 Development Rights............................................................................................. 19
10.1.3 Sales Offices, Etc .................................................................................................. 19
10.1.4 Easements Through Common Elements and Lots and other Rights ................... 19
10.1.5 Master Association .............................................................................................. 19
10.1.6 Merger and Consolidation ................................................................................... 19
10.1.7 Declarant Control ................................................................................................. 19
10.1.8 Design Review Control ......................................................................................... 20
10.1.9 Meetings .............................................................................................................. 20
10.1.10 Records ................................................................................................................ 20
10.2 Other Declarant Rights ......................................................................................................... 20
10.3 Transfer of Declarant Rights ................................................................................................. 20
11. Easements; Shared Improvements; Party Walls .................................................................... 20
11.1 Encroachments ..................................................................................................................... 20
11.2 Authority ............................................................................................................................... 21
11.3 Declarant, Association and Lot Owners ................................................................................ 21
11.4 Shared Improvements .......................................................................................................... 21
11.5 Party Walls ............................................................................................................................ 21
11.5.1 General................................................................................................................. 21
11.5.2 Party Wall Work ................................................................................................... 22
11.5.3 Indemnification .................................................................................................... 22
11.5.4 Cost of Repair ....................................................................................................... 22
11.5.5 Right to Contribution Runs with Land.................................................................. 23
12. Dispute Resolution ............................................................................................................... 23
12.1 Dispute Resolution Procedures. ........................................................................................... 23
12.2 Negotiated Resolution .......................................................................................................... 23
12.3 Claim Process or Mediation .................................................................................................. 24
12.3.1 Statutory Pre-litigation Claims ............................................................................. 24
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12.3.2 Other Claims ........................................................................................................ 24
12.4 Mandatory Binding Arbitration ............................................................................................ 25
12.4.1 Federal Arbitration Act ........................................................................................ 25
12.4.2 Other Parties ........................................................................................................ 26
12.4.3 Administration of Proceedings ............................................................................ 26
12.4.4 Statutes of Limitation .......................................................................................... 26
12.4.5 Selection of Arbitrator ......................................................................................... 26
12.4.6 Authority of Arbitrator ......................................................................................... 27
12.4.7 Discovery .............................................................................................................. 27
12.4.8 Full Disclosure ...................................................................................................... 27
12.4.9 Hearing ................................................................................................................. 27
12.4.10 Decision ................................................................................................................ 28
12.4.11 Fees and Costs ..................................................................................................... 28
12.5 Waiver of Class, Joint, Mass, Collective, and/or Representative Actions. ............................ 28
12.5.1 Association ........................................................................................................... 28
12.5.2 Lot Owners ........................................................................................................... 29
12.6 Proceedings Brought in Court ............................................................................................... 29
12.7 Resolution by Mediation or Negotiation .............................................................................. 29
12.8 Waiver of Jury Trial ............................................................................................................... 30
12.9 Involvement of Association in Individual Home Disputes .................................................... 30
12.10 Declarant Consent Required ................................................................................................. 30
12.11 Unobserved Construction Defects ........................................................................................ 30
12.12 Required Vote to Make Claim ............................................................................................... 30
13. Mortgagee Protection .......................................................................................................... 30
13.1 Information Regarding Mortgagees. .................................................................................... 30
13.2 Notices .................................................................................................................................. 31
13.3 Effect of Declaration Amendments ...................................................................................... 31
13.4 Records ................................................................................................................................. 31
13.5 Lien Priority ........................................................................................................................... 31
13.6 HUD or VA Approval ............................................................................................................. 31
13.7 Rights under Act.................................................................................................................... 32
14. General................................................................................................................................ 32
14.1 Notices .................................................................................................................................. 32
14.2 Amendments ........................................................................................................................ 32
14.3 Certain Terms ........................................................................................................................ 32
14.4 Headings; Sections; Recitals and Exhibits ............................................................................. 32
14.5 Act Amended or Repealed .................................................................................................... 32
15. TPG and Declarant ............................................................................................................... 32
15.1 Assignments of Declarant Rights .......................................................................................... 32
15.2 Co-Declarants. ....................................................................................................................... 33
15.3 TPG’s Consent Required While Option is in Effect ............................................................... 33
15.4 Enforcement ......................................................................................................................... 34
15.5 Failure to Obtain TPG Approval ............................................................................................ 34
vi
Schedule 1
Schedule 2
Schedule 3
Schedule 4
1
DECLARATION
OF
COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR
SUNSET HIGHLANDS TOWNHOMES
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (this “Declaration”) dated as
of the date of recording, is made by TNHC WASHINGTON LLC, a Delaware limited liability company, as
Declarant, and consented to by TPG (as defined below).
1. Purpose and Effect
1.1 Basic Declaration. By this Declaration, the Declarant and TPG subject the real estate commonly
known as Sunset Highlands Townhomes and legally described on Schedule 1 (“Property”) to the
following covenants, conditions and restrictions, and declares that the Property is a “Plat
Community” under the Washington Uniform Common Interest Ownership Act, Chapter 64.90 of
the Revised Code of Washington (“WUCIOA” or the “Act”).
1.2 WUCIOA; Plat. The Plat Community (“Community”) and its use and development will be governed
by this Declaration and the Act. The Community and this Declaration are also subject to the Plat
of Sunset Highlands Townhomes recorded or to be recorded in King County, Washington (“Plat”).
The Plat (also known in the Act as the “Map”) is subject to amendment from time to time upon
exercise by Declarant of its Development Right to add or annex Real Estate (as defined in the Act),
if any, as described in Section 9.2. In this Declaration, “Community” refers to the Property
described on Schedule 1, together with any such added or annexed Real Estate, and “Plat” refers
to the original recorded Plat, as it may be amended from time to time to reflect the addition or
annexation of any such Real Estate. By accepting a conveyance of a Lot, each Lot Owner adopts
and agrees to be bound by this Declaration.
1.3 Running Covenant. This Declaration will run with title to all elements of the Community, including
Lots and Common Elements, and will be binding on and run to the benefit of the Declarant, the
Association, and all Persons having any right, title, or interest in any portion of the Community,
and their respective heirs, personal representatives, successors, and assigns.
1.4 Information on Schedule. In addition to the legal description of the Property, various other items
of information specific to the Community are set forth on Schedule 1.
1.5 Definitions. Definitions of certain terms in this Declaration are set forth on Schedule 2.
1.6 Option Agreement; Positions of TPG and Declarant. TPG AG EHC III (NWHM) MULTI STATE 3,
LLC, a Delaware limited liability company (“TPG”), is the owner of fee title to the Property defined
on Schedule 1. TNHC Washington LLC, a Delaware limited liability company (“Declarant” or
“TNHC”), has the right to acquire the Property from TPG pursuant to an Option Agreement
(“Option Agreement”), entered into between TPG, as Owner, and TNHC, as Builder, as evidenced
by the Memorandum of Option Agreement recorded on September 22, 2025 in King County under
recording no. 20250922000562. Notwithstanding any other provision of this Declaration, TNHC
and TPG acknowledge that, upon recordation of a termination of the Option Agreement, the
Option Agreement, for purposes of this Declaration, shall be deemed terminated and shall no
longer be in force or have any effect hereunder.
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1.7 Assignment of Declarant Rights. TPG and Declarant have determined that it is in the best interest
of the parties and the future owners of Lots in the Community that Declarant should be the party
making this Declaration. Therefore, TPG nominates and appoints Declarant as the “declarant” for
all purposes under Chapter 64.90 RCW, subject to the terms of this Declaration.
2. Definitions
Definitions of certain terms in this Declaration are set forth on Schedule 2.
3. Restrictions on Use.
3.1 Effect of Restrictions on Use; Remedies. Lot Owners understand and accept that Restrictions on
Use may affect, sometimes negatively, the use and enjoyment, value, and marketability of Lots,
and that Restrictions on Use may change from time to time. Restrictions on Use may not
necessarily be set forth in this Declaration or any supplements or amendments. A copy of all
current Restrictions on Use may be obtained from the Association. The Association may from time
to time give notice to a Lot Owner of the violation of any Restrictions on Use and, if the violation
is not cured within a reasonable period of time, the Association may pursue any available remedy
against the Lot Owner under the Act or other law. This includes bringing an action against the Lot
Owner for an injunction or other equitable relief. A Lot Owner will be responsible for all
reasonable costs, including reasonable attorneys’ fees, incurred by the Association in enforcing
the Restrictions on Use against a Lot Owner. The Association will have the same rights as to the
collection of those costs as it has to collect assessments under this Declaration. In addition, in
accordance with RCW 64.90.405(l), the Association may adopt and furnish to Lot Owners a
schedule of reasonable fines that may be imposed for the violation of Restrictions on Use, and
may, to the extent permitted by applicable law, treat a fine imposed on a Lot Owner as an expense
assessed against the Lot Owner alone, in accordance with Section 8.1. Any such system of fines
will include provision for notice to a Lot Owner and a reasonable opportunity to dispute or seek a
hardship waiver for a fine.
3.2 Authority of Board. In addition to the initial Restrictions on Use in this Section 3, the Board has
the full power and authority to adopt Restrictions on Use and other Rules under the Act. The
Board will have the full power and authority to amend, modify, supplement, or repeal any
Restrictions on Use or other Rules from time to time. This power and authority is limited by RCW
64.90.510 and the express limits in this Declaration.
3.3 Requirements and Limits. All Restrictions on Use must comply with this Section 3.3.
3.3.1 Applicable Law. All Restrictions on Use, including the initial Restrictions on Use, will be
subject to the Act and other applicable law. Without limiting the foregoing, any restriction
on leasing of Lots or improvements must meet the requirements of RCW
64.90.510(10)(c).
3.3.2 Burdens and Benefits. No Use Restriction may alter the allocation of financial burdens
among Lot Owners, or rights to use Common Elements, to the detriment of any Lot Owner
over the Lot Owner’s objection. The foregoing will not prevent the Board from adopting
reasonable Rules for the use of the Common Elements, including restrictions on use by
Persons who abuse the Common Elements or violate those Rules or this Declaration.
3.3.3 Households. No Use Restriction may interfere with the freedom of Lot Owners to
determine the composition of their households, except Rules may be adopted to (i)
3
require that all occupants be members of a single housekeeping unit, (ii) limit the total
number of occupants in any dwelling on the basis of the size and facilities of the dwelling,
or (iii) limit or prohibit the occupancy of dwellings by Persons who have been convicted
of a crime for which continued supervision after conviction is imposed. The foregoing are
subject to the restrictions and limitations of applicable federal, state, or local law in effect
from time to time.
3.3.4 Household Occupations. No Use Restriction may interfere with the right of a Lot Owner
or Person dwelling on the Lot to conduct business activities in the dwelling, if (i) the
existence or operation of the business is not detectable by sight, sound, or smell from
outside the dwelling, (ii) the business activity is not inconsistent with the residential
character of the Community and does not constitute a nuisance or threat to the safety or
security of residents in the Community, or materially increase vehicular or pedestrian
traffic or parking in the Community, all as determined by the Board in its discretion, (iii)
any goods, materials, or supplies of the business are stored inside the dwelling or other
buildings on the Lot, (iv) the exterior of the dwelling on the Lot is not modified for the
business, or (v) the use of the Lot for the business is permitted by applicable zoning and
other laws.
3.3.5 Religious and Political Displays. Lot Owners’ rights to display religious and holiday signs,
symbols, and decorations of the kind typically found in dwellings in single-family
residential neighborhoods may not be abridged except for reasonable time, place, and
manner restrictions on displays visible from outside the dwelling on any Lot, and other
restrictions consistent with federal, state, and local laws. No Restrictions on Use may
regulate the content of political signs; however, Rules may reasonably regulate the time,
place, and manner of political signs, including design criteria, in a manner consistent with
applicable federal, state, and local law.
3.3.6 Declarant’s Development of Community. No Use Restriction may materially impede
Declarant’s right to develop the Community.
3.3.7 Similar Treatment. Similarly situated Lots and Lot Owners will be treated similarly.
3.4 Initial Restrictions on Use. The initial Restrictions on Use are as follows.
3.4.1 Advertising and Signs. No advertising or signs shall be placed or maintained on or above
any Lot, other than a name plate of the occupant and a Lot number, and except for a "For
Sale," "Open House," "For Rent" or security sign of not more than 5 square feet in area,
posted only for the purpose of selling or renting a home or evidencing the existence of a
security system on the Lot; and such other signs that have the prior written approval of
the Improvement Committee or Board or are otherwise expressly permitted by law. Any
such advertising or signs shall be subject to any and all rules and regulations adopted by
the Improvement Committee and/or the Board. Notwithstanding the foregoing, the
foregoing restrictions will not apply to the Declarant, and the Declarant may place or
maintain any signs, advertising, or billboards without regard to any rules and regulations
of the Improvement Committee or the Board.
3.4.2 Animals. No animals, horses, livestock, birds, poultry, reptiles, or insects of any kind shall
be raised, bred, kept, or boarded in the Community; provided, however, that Lot Owners
may keep a reasonable number of bona fide household pets (including dogs, cats, and
other domestic animals), so long as such pets are not kept for any commercial purpose
4
and are not kept in such number or in such manner as to create a nuisance to any resident
of the Community. The Association shall have the authority to do the following as well as
take such other action concerning animals as the Board may determine: set a maximum
number of household pets; set a size or poundage limit to pets; regulate the types of
animals that are permitted to be kept; determine that any dogs, cats, or pets are being
kept for commercial purposes or are being kept in such number or in such manner as to
be unreasonable or to create a nuisance; determine that a Lot Owner is in violation of the
leash laws of any Authority or other applicable law; or determine that a Lot Owner is
otherwise in violation of any provision of the Governing Documents. If the Board
determines that there is a violation of any of the foregoing, the Association may take any
actions it determines. A Lot Owner's right to keep household pets is coupled with the
responsibility to pay for any damage caused by such pets, as well as all costs incurred by
the Association as a result of such pets, and all such costs and damages shall be subject
to all of the Association's rights with respect to the collection and enforcement of
assessments as provided in this Declaration. This Section 3.4.2 is subject to any federal,
state, or local law governing service animals, and nothing in this Declaration shall be
construed to restrict or prohibit the keeping or use of service animals in compliance with
applicable law.
3.4.3 Antennas, Satellite Dishes, Etc. Except as may otherwise be permitted in writing by the
Improvement Committee or Board, no exterior radio antenna, television antenna, or
other antenna, satellite dish, or audio or visual reception device shall be placed or
maintained on any Lot, except (i) as determined by the Board on any roof, and (ii) inside
a Lot and not visible from outside the Lot. Any such devices may, however, be erected or
installed by the Declarant in Common Elements or model homes or sales offices during
the development, sale, or construction of the Community. This subsection shall be subject
to the Telecommunications Act of 1996 and applicable regulations.
3.4.4 Drainage. No stormwater or other drainage may be diverted from its natural course so as
to discharge onto any public or private right-of-way or any neighboring Lot or Common
Element.
3.4.5 Fencing. No fencing shall be permitted unless first approved in writing by the
Improvement Committee, other than such fencing as may be constructed or installed by
Declarant.
3.4.6 Hazardous Activities, Materials, or Chemicals. No activity shall be conducted on any Lot,
or in or on any Common Element, that is unsafe or hazardous to any person or property.
Without limiting the foregoing, no firearms shall be discharged anywhere in the
Community; and no open fires shall be permitted in or on any Lot or in or on any Common
Element, except in a contained grilling unit or other outdoor cooking facility while
attended and in use for cooking purposes, as may be permitted by an Authority, and
subject to compliance with Rules; and no open fire or burning shall be permitted within a
fireplace and/or fire pit, except such campfires or picnic fires on property that may be
designated for such use by the Association. In addition, no hazardous materials or
chemicals shall at any time be located, kept or stored in, on, or at any Lot except as may
be contained in household products normally kept at homes for use of the residents
thereof and in such limited quantities so as to not constitute a hazard or danger to any
person or property.
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3.4.7 Landscaping. A Lot Owner shall maintain all landscaping within its Lot unless the
Association or Declarant specifically designates all or a portion of the landscaping on a Lot
as an Association Maintenance Item. To the extent a Lot Owner is responsible for
landscaping on its Lot, such landscaping shall be maintained in a neat and attractive
condition, including periodic and horticulturally correct pruning, removal of weeds, and
replacement of landscaping. If any Lot Owner does not maintain landscaping as required
hereunder, then the Declarant or the Association may (but is not obligated to), after giving
reasonable advance written notice, enter upon the Lot Owner's Lot and perform the
maintenance. All costs and expenses incurred by the Declarant or the Association in
installing or maintaining landscaping, as provided in this subsection, shall be the personal
obligation of the Lot Owner of the Lot, and shall be subject to all of the provisions
applicable to assessments as provided in this Declaration, including interest, late charges,
attorney's fees, and lien rights.
3.4.8 Lot Contours. The surface grade or elevation of a Lot may not be altered in any manner
that would affect the relationship of the Lot with adjoining or nearby Lots, including the
view from any Lot, would produce an effect out of harmony with the development of the
immediate area, or would materially alter the flow of ground water, surface water, or
storm water, all as determined by the Declarant, the Improvement Committee, or the
Association in its discretion.
3.4.9 Mining or Drilling. No portion of the Community shall be used for mining, quarrying,
drilling, boring, or exploring for or removing oil, gas, or other hydrocarbons, minerals,
rocks, stones, gravel, earth, or water. The foregoing is not intended to prohibit normal
land development activities by Declarant, including grading, excavating, and exporting
surplus soils.
3.4.10 Annoying Lights, Sounds or Odors. No light shall be permitted to emit from any Lot that
is unreasonably bright or causes unreasonable glare; no sound shall be permitted to emit
from any Lot that is unreasonably loud or annoying; and no odor shall be permitted to
emit from any Lot that is noxious or offensive to others. In addition, no annoying light,
sound, or odor shall be permitted in any portion of the Community that may be seen,
heard, or smelled from any other portion of the Community.
3.4.11 Nuisances. No nuisance shall be permitted that is visible within or otherwise affects the
Community or any portion of the Community, nor any use, activity, or practice that
materially interferes with the peaceful enjoyment or possession and use of any Lots. The
term "nuisance" includes any violation of the Governing Documents, but shall not include
any activities of Declarant. No noxious or offensive activity shall be carried on upon any
Lot, nor shall anything be done or placed on any Lot that is or may become a nuisance or
may reasonably cause embarrassment, disturbance, or annoyance to others.
3.4.12 Number of Dwellings. No more than one dwelling and, if permitted by the applicable
Authority and otherwise in compliance with this Declaration and other requirements
adopted by the Association, one detached or attached accessory dwelling unit may be
built or maintained on any Lot. The foregoing will not apply to Declarant’s sales or
construction offices or models, or other similar temporary uses by Declarant. In addition,
this Declaration shall not restrict construction of detached or attached accessory dwelling
units on a Lot to the extent such limitation would violate the Act or the applicable laws of
the applicable jurisdiction.
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3.4.13 Dumping. The public or private storm water drainage system in the Community, including
the portions on the surface and below the surface, must be kept free of all hazardous or
damaging materials or materials that could have an adverse effect on the environment,
the sensitive areas in the Community, or water quality. Without limiting this requirement,
the following are prohibited from entering the drainage system in particular, and shall not
be deposited in the Community including in any drain in any Lot or Common Element: (i)
petroleum products including oil, gasoline, grease, fuel oil, and heating oil, (ii) trash and
debris, except in designated receptacles, (iii) sewerage, animal waste, or recreational
vehicle waste (iv) chemicals, dyes, degreasers, solvents, antifreeze, and other automotive
products, and paint or other coatings, (v) steam cleaning or power washing waste, dust
or runoff, (vi) laundry waste or soaps, (vii) pesticides, herbicides, or fertilizers, except
when applied to vegetation on the surface in accordance with laws and manufacturers’
instructions, (viii) heated water, chlorinated water, or chlorine, (ix) lawn clippings, leaves,
and branches, (x) animal carcasses, (xi) silt, and (xii) construction materials. The foregoing
shall not be construed to apply to any deposit of any of the foregoing materials by or for
the Declarant or the Association in designated receptacles or otherwise consistent with
applicable law.
3.4.14 Residential Purposes. The Lots and Common Elements may be used only for Residential
Purposes and purposes incidental to Residential Purposes.
3.4.15 Temporary Structures; Construction Work; Unsightly Conditions. No structure of a
temporary character, including a house trailer, tent, shack, storage shed, or outbuilding,
shall be placed or maintained on any Lot; provided, however, that during the actual
construction, alteration, repair or remodeling of a structure or other Improvement,
temporary structures for storage of materials may be placed and maintained. The work
of constructing, altering, or remodeling any structure or other Improvement shall be
prosecuted diligently from commencement until completion. No unsightly conditions,
structures, facilities, equipment or objects shall be so located on any Lot as to be visible
from a street or from any other Lot.
3.4.16 Timesharing. No time-sharing, fraction-sharing, or similar program whereby the right to
use of a Lot rotates among program participants on a fixed or floating schedule is
permitted.
3.4.17 Short-Term Rentals. Short-term rentals, as defined in RCW 64.37,010, are expressly
permitted. Any Lot Owner who engages in short-term rentals shall be responsible for its
full compliance with all applicable law, code and ordinance, and any breach of the terms
of this Declaration by its tenants and their invitees.
3.4.18 Garbage, Etc. No refuse, garbage, trash, lumber, grass, shrubs or tree clippings, plant
waste, metal, bulk materials, scrap or debris of any kind shall be kept, stored, or allowed
to accumulate inside the home on any Lot, nor shall any such items be deposited
anywhere in the Common Elements or on a street, unless placed in the appropriate
receptacles for garbage, recycling, and food waste/compost designated for the applicable
Lot. Each Lot Owner shall store garbage, recycle, and compost in bins or containers as
approved by the municipal collection service. Such bins shall be stored within the garage
or an exterior, wildlife-secure enclosure as may be approved by the Association, except
for specific collection days and times where bins may be positioned at the edge alley for
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collection. In no event shall such bins remain outside of the garage or approved enclosure
beyond 8:00 pm the day of collection.
3.4.19 Underground Utilities. All utilities other than those constructed by or for Declarant must
be underground.
3.4.20 Water Use. No sprinkler or irrigation system or wells may be operated that draw water
from ground or surface water in the Community or from any source other than the public
system serving the Community or “rain barrels” or similar devices catching runoff from
the dwelling.
3.4.21 Vehicles. Vehicle parking within the Community must in all cases comply with the rules
and restrictions of any Authority. To the extent permitted by the applicable Authorities,
a maximum of two vehicles may park on any driveway and such vehicles shall be fully
contained on the Lot and not extend over the adjacent public or private sidewalks, trails,
alley ways and fire lines. No house trailer, camping trailer, boat trailer, hauling trailer, jet
ski, boat, or accessories of any of the foregoing, truck (excluding pickup trucks that are 1
ton capacity or less), self-contained motorized recreational vehicle, or other type of
recreational or commercial vehicle or equipment, may be parked or stored on a Lot unless
such parking or storage is entirely within the garage area of any Lot or will be suitably
screened from view in accordance with the requirements, and prior written approval of,
the Board. A "commercial vehicle" means a vehicle that is used to transport cargo or
passengers for profit or hire; or may (but is not required to) contain signage, advertising,
or written information on the vehicle or extending from the vehicle; or is any vehicle
registered with the Washington Department of Motor Vehicles as a "Commercial
Vehicle"; or is any vehicle that is larger than 1 ton capacity. However, any such vehicle
may be parked on a temporary basis for loading, delivery, or emergency. This restriction,
however, shall not restrict trucks or other commercial vehicles that are necessary for
construction or maintenance of any portion of the Community or any Improvements.
"Recreational vehicle" includes motor homes, pick-up trucks with camper shells, trailers,
self-contained recreational vehicles, motorcycles, motorbikes, snowmobiles, jet skis, all-
terrain vehicles, and other apparatus intended for use on land, water, or in the air, and
the trailers used for their transportation. A Lot Owner may seek permission from the
Improvement Committee or Board for guests to park a recreational vehicle on the
driveway of the Lot for up to 72 hours, subject to a maximum of 21 days in any calendar
year, and the Improvement Committee or Board will not unreasonably withhold that
permission.
No abandoned or inoperable automobiles or vehicles of any kind shall be stored or parked
in the Community. An "abandoned or inoperable vehicle" means any automobile, truck,
motorcycle, or other similar vehicle, that has not been driven under its own propulsion
for a period of 72 hours or longer, or that does not have an operable propulsion system
installed, or that is not currently registered and licensed; provided, however, that
otherwise permitted vehicles parked by Lot Owners while away from home for a
maximum of 2 weeks or during a period of illness shall not be deemed to be abandoned.
If the Association determines that a vehicle is parked or stored in violation of this
subsection and/or the Authority’s parking restrictions, then a written notice describing
the vehicle may be personally delivered to the owner thereof (if the owner can be
reasonably ascertained) or may be conspicuously placed upon the vehicle (if the owner
8
thereof cannot be reasonably ascertained), and if the vehicle is not removed within a
reasonable time thereafter, as determined by the Board, the Association shall have the
right to remove the vehicle at the sole expense of the owner.
No maintenance, repair, rebuilding, dismantling, repainting, or servicing of any vehicles,
trailers, or boats, may be carried on in the Community unless within a completely
enclosed structure that screens the sight and sound of the activity from the street and
from adjoining property. The foregoing restriction shall not be deemed to prohibit the
washing and polishing of any motor vehicle, boat, trailer, motorcycle, or other vehicle,
and normally incidental activities, on a Lot.
3.4.22 Wood Storage. No wood piles or wood storage areas shall be permitted.
3.4.23 No Wood-Burning Stoves or Fireplaces. No wood-burning stoves or fireplaces are
permitted in the interior of any residence or on any Lot.
3.5 Common Area Use Restrictions. Certain facilities and areas within the Community may be open
for the use and enjoyment of the Community generally and the public. Such facilities and areas
may include, by way of example, greenbelts; trails and paths; parks and other neighborhood spots
upon which to gather and interact; and roads, sidewalks, medians, and parking lots. Declarant
may, at the time the facilities are constructed, designate such areas and facilities as open to the
public, or the Board may subsequently designate such facilities and areas as open to the public.
Declarant, during the Declarant Control Period, and the Board, thereafter, may revoke such public
designation at any time in its sole discretion unless a local government, governmental agency, or
other agency has accepted a dedication of title and assumed liability for such public area. From
time to time, Declarant or the Board may impose rules and regulations governing the use of such
facilities.
4. Architecture, Landscaping, and Design Review
4.1 General. No structure or building may be installed, constructed, or placed on any Lot or any
existing improvement on a Lot, no landscaping may be planted or removed, and no remodeling,
renovation or similar work on the exterior of any home or improvement may be undertaken (any
of the foregoing, “Work”), except in accordance with this Section 4 and the Design Guidelines.
Unless otherwise governed by this Section 4 or elsewhere in this Declaration, a Lot Owner may
make any improvements or alterations to the interior, non-structural components of the home
on a Lot and such improvements or alterations will not constitute Work under this Section 4. Any
improvements or alterations to Party Walls are governed by Section 11. Any alterations or
improvements within a Private Yard, including planting or removing any landscaping, constitutes
“Work” under this Section 4.
4.2 Interest of Declarant; Rights of Declarant. The Declarant has an interest in ensuring that the
Community and its improvements enhance Declarant’s reputation as a developer and builder and
do not impair Declarant’s marketing and sale of homes. Consequently, no Work may be
commenced by a Lot Owner (other than Declarant) without the prior written approval by
Declarant. This is a Special Declarant Right under RCW 64.90.010(52).
In exercising its review and approval right, Declarant owes no duty to any other Person, and may
grant or withhold its approval in its absolute discretion. Declarant’s rights under this Section 4 will
continue until Declarant owns no property in the Community, or until Declarant surrenders and
terminates those rights in writing.
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Declarant may from time to time designate one or more other Persons to exercise any of
Declarant’s rights under this Section 4. This designation will be in writing, and may be revoked by
Declarant at any time in writing while it still has rights under this Section 4. In particular, Declarant
may delegate any of its rights to the Improvement Committee established under Section 4.3.
While Declarant has rights under this Section 4.2, it may in its absolute discretion veto any
decision of the Improvement Committee or other Person designated to exercise approval rights.
4.3 Improvement Committee. To the extent delegated by Declarant to the Improvement Committee
as provided in Section 4.2, and, upon termination of Declarant’s rights under Section 4.2, the
Improvement Committee will have the right to approve all Work.
The Improvement Committee will consist of between 3 and 7 natural Persons, who will be
appointed by and serve at the pleasure of the Board (or the Declarant, while the Declarant has
rights under Section 4.2). At least 2 members of the Improvement Committee will be members of
the Board. Members of the Improvement Committee may include architects, engineers, or similar
professionals who are compensated in a manner determined by the Board.
The Improvement Committee may form one or more subcommittees to handle particular areas
of review (for example, a new construction subcommittee, a modifications subcommittee, and a
landscaping subcommittee). Any such subcommittee will have the same power and authority over
its subject matter as the Improvement Committee itself.
Except for the veto rights of the Declarant described in Section 4.2, decisions of the Improvement
Committee will be final and not subject to veto or reversal by the Association or any other Person.
For clarity, neither the Improvement Committee nor the Board shall have authority over any
public right-of-way or any other property not owned by the Association or the Lot Owners.
4.4 Review Authority; Fees; Assistance by Others. The Declarant, Improvement Committee or
subcommittee, or other Person performing review of proposed Work (in any such case, “Review
Authority“) may charge reasonable fees for the review of proposed Work, and may require that
those fees be paid before the Review Authority commences its review. These fees may include
the costs of having any proposed Work reviewed by architects, engineers, or similar professionals
who are engaged by the Review Authority for that purpose. The Board may include the
compensation of those professionals as a Common Expense in the budget.
4.5 Design Guidelines. Declarant or the Improvement Committee may prepare Design Guidelines
(“Guidelines”), which when prepared will be adopted by the Association by rule without the need
for notice to or consent of Lot Owners. The Guidelines may apply to the whole Community and
may have provisions applicable only to portions of the Community. The Guidelines may exempt
certain kinds of Work from the approval requirements, subject to any reasonable restrictions. The
Guidelines will not be the only basis for approval or disapproval of proposed Work, and
compliance with the Guidelines does not entitle a Lot Owner to approval of proposed Work.
Declarant and, if delegated by the Declarant or when the Declarant no longer has approval rights,
the Improvement Committee, may amend the Guidelines in any respect consistent with this
Declaration and all applicable Permits and Approvals, and without notice to or consent of Lot
Owners. Amendments may make the Guidelines more or less restrictive than the Guidelines
previously in effect. Amendments will have prospective effect only and may not require
10
modification or removal of Work previously approved once that Work has commenced on site in
any material respect.
A copy of the current Guidelines will be available to any Lot Owner upon request. Declarant or
the Review Authority may charge a reasonable fee for copies.
Notwithstanding any provision herein to the contrary, any amendment to the Guidelines requires
the prior written approval of TPG so long as TPG owns any Lot or other portion of the Property.
4.6 Review Procedures. Before commencing any Work, the Lot Owner must submit an application for
review and approval to the Review Authority. The application will be in the form reasonably
prescribed by the Review Authority, which may require plans and specifications, site plans,
structural drawings, exterior elevations, exterior colors and materials, and landscaping, drainage,
exterior lighting, irrigation, and other elements of the proposed Work as appropriate.
The Review Authority will respond to the application by notice. The notice may approve the
proposed Work with or without conditions, approve the proposed Work in part and disapprove it
in part, or disapprove the proposed Work. When disapproving proposed Work, the Review
Authority will briefly state the Guideline or other reason for disapproval. The Review Authority
may but need not suggest changes to any disapproved Work.
The Review Authority will respond to the application within the time after submission of a
complete application as specified in the Guidelines. If there are no Guidelines or they do not so
specify, the Review Authority will respond within 30 days after the date a complete application is
submitted and, if the Review Authority does not timely respond, the proposed Work may be
considered approved as proposed, but only if the proposed Work does not conflict with any
material express provision of the Guidelines. While the Declarant has approval rights under
Section 4.2, the Review Authority will furnish Declarant with a copy of the complete application
and its decision within 3 business days after its decision. To veto all or part of the decision, the
Declarant must give notice to the Review Authority and the Lot Owner within 3 business days
after receipt of the decision.
Work that has been approved must be commenced on site within one year after approval.
Otherwise, the Lot Owner must re-apply before commencing the Work. Once it commences
approved Work, the Lot Owner must diligently pursue it to completion and in any event must
complete it within one year after commencement (or any longer time specified by the Review
Authority). If approved Work is not completed within the required time then, unless an extension
is given by the Review Authority in its discretion, the Work may be considered nonconforming
and subject to enforcement action by the Board.
4.7 Variances. The Review Authority may grant variances from compliance with the Guidelines when
in its judgment, based on such factors as topography, natural obstructions, hardship, aesthetic
considerations, or environmental considerations, variance would be fair and equitable. However,
the Work must remain in compliance with applicable law. Variances must be in writing. The grant
of a variance will not prevent the Review Authority from denying a variance in other
circumstances, even if similar.
4.8 No Waiver of Future Approval. The identity of the Review Authority and the Persons included in
the Review Authority will change from time to time, and opinions on aesthetic matters and
interpretation of the Guidelines will change from time to time. In addition, it may not always be
11
practicable for the Review Authority to identify objectionable features of proposed Work until
that Work has been approved and completed. Consequently, approval of any proposed Work will
not entitle any Lot Owner to approval of the same or similar Work in the future.
4.9 Limitation of Liability. The provisions of this Section 4 are intended as a mechanism to maintain
and enhance the aesthetics of the Community. Review and approval of any proposed Work may
be made on the basis of aesthetic considerations only. The Review Authority will have no
responsibility for the structural integrity or soundness of any proposed Work, for any soil
conditions, for any defects in plans and specifications, for the quality of workmanship or materials,
or for the compliance of any proposed Work with any building codes, building Permits and
Approvals, or other governmental requirement. The Review Authority will not be responsible to
ensure uniformity or comparability of appearance, quality, or aesthetic character of the homes
and other improvements in the Community.
The Review Authority will be entitled to defense and indemnification for loss, injury, and damages
arising out of or in connection with any acts or omissions of the Review Authority, to the fullest
possible extent under RCW 64.90.405(2)(n) and the Governing Documents.
4.10 Certificate of No Violations. A Lot Owner may at any time request by written notice that the
Review Authority issue a certificate to the effect that there are no known violations of this
Declaration, any Guidelines, or the terms and conditions of any approval of Work on the Lot
Owner’s Lot. The Review Authority or the Association will either grant or deny the Lot Owner’s
request within 30 days after the notice, and may charge a reasonable fee for issuing any such
certificate. Issuance of a certificate will prevent the Association from taking enforcement action
concerning any condition as to which the Association had notice as of the date of the certificate.
4.11 Enforcement; Fines. The Association may pursue any available remedy against a Lot Owner for
violation of this Section 4 or the Guidelines. This includes bringing an action against the Lot Owner
for an injunction or other equitable relief. A Lot Owner will be responsible for all reasonable costs,
including reasonable attorneys’ fees, incurred by the Association in enforcing this Section 4 or the
Guidelines. In addition, in accordance with RCW 64.90.405(2)(l), the Association may adopt and
furnish to Lot Owners a schedule of reasonable fines that may be imposed for the violation of this
Section 4 or the Guidelines, and may, to the extent permitted by applicable law, treat a fine
imposed on a Lot Owner as an expense assessed against the Lot Owner alone, in accordance with
Section 8.1. Any such system of fines will include provision for notice to a Lot Owner and a
reasonable opportunity to dispute or seek a hardship waiver for a fine.
4.12 Exemption. This Section 4 shall not apply to alteration or improvement of any portion of the
Community owned by Declarant.
5. Lot Owner Maintenance and Repair
5.1 Maintenance Responsibility.
5.1.1 Lot Owner Responsibility. Each Lot Owner is responsible for the maintenance, repair and
replacement of its Lot and all structures thereon, except for Association Maintenance
Items, as provided in this Declaration or by the Declarant or the Board. A matrix setting
forth the initial allocation of responsibility is attached as Schedule 4. However, the
Declarant (during the Declarant Control Period) and the Board (from and after the
termination of the Declarant Control Period) may revise or modify the Association
Maintenance Items and any other specific allocation of responsibility, and/or create
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additional allocations of responsibility, for maintenance, repair and replacement of any
portion of the Lots or improvements thereon, in each case (i) with written notice to
affected Lot Owners, (ii) without amending this Declaration and (iii) subject to the terms
of the Act. If a Lot Owner intends to repair, replace or repaint, as applicable, exterior
components of a residence, in each case subject to the approval requirements of Section
4, the Owner shall use materials similar in type, quality and color to the original exteriors,
except as agreed upon by the Board. Without limiting the foregoing, each Lot Owner must
also (a) keep the drains on its porches, patios, balconies and decks free of leaves, debris
or objects that might cover, block, clog or impair the function of the drains, (b) keep all
exhaust vents and fans for the Lot Owner’s residence (including bathroom and kitchen
fans and dryer vents) in good working order and use the exhaust vents and fans to prevent
undue moisture in the residence; (c) promptly dry all spills or leaks within the residence;
(d) promptly notify the Association of any suspected water leak, any water infiltration or
excessive moisture, any water damage, or any evidence of mold or fungus growth in the
building, and (e) promptly and properly remove any mold from its residence. Each Lot
Owner shaft maintain the foregoing items in accordance with any maintenance manuals,
schedules or procedures provided to the Lot Owner or Association by the Declarant, or to
the extent not so provided, by the Association. A Lot Owner will have no claim against the
Declarant or Association, or their respective officers, directors, managers, members,
employees, contractors, agents or assigns, for any loss or damage to the extent arising
from such failure. Any and all work impacting Party Walls, exterior walls or attic space
shall require approval of the Association in accordance with the terms of Section 4.
Notwithstanding the foregoing, the Association may elect to perform or manage the
repair, replacement or repainting, as applicable, as an Association Maintenance Item, on
behalf of the Lot Owner or Lot Owners, and in such case, the Lot Owner or Lot Owners
benefiting from the improvement shall be responsible for the cost in accordance with
Section 8.1.
5.1.2 Association Maintenance. The Association will use commercially reasonable efforts to
maintain the Association Maintenance Items consistent with this Declaration, the
Community-Wide Standard, and applicable law. Decisions related to the standard of
appearance and condition of the Association Maintenance Items and whether any
maintenance or repair of the Association Maintenance Items is required will be made by
the Board. The Board will determine whether any maintenance or repair work for any
Lots is to be performed by a Lot Owner, multiple Lot Owners or by the Association. The
cost of maintenance and repair work performed by the Association will be assessed in
accordance with the terms of Section 8.1.
5.2 Insurance. Each Lot Owner, other than TPG, or Declarant (except to the extent required by law),
will carry property and liability insurance as required on Schedule 3.
5.3 Failure to Maintain Lot. The Association may give notice to any Lot Owner who does not comply
with the maintenance responsibilities in this Section 5. The notice will state the action required
for compliance. If the Lot Owner does not perform the required maintenance within 30 days after
the notice, the Association will have the right (but not the obligation) to enter the Lot and perform
the required maintenance for the Lot Owner. In addition, the Association (and during the
Declarant Control Period, Declarant) may enter a Lot without prior notice (but with a reasonable
effort under the circumstances to give contemporaneous notice) to conduct emergency repairs
13
of conditions that in the judgment of the Association (or Declarant, as applicable) pose a
substantial risk of injury or damage to property. The Association may levy an Assessment against
the Lot Owner for all costs incurred by the Association in exercising its rights under this Section
5.3, as provided in RCW 64.90.480(4). This Assessment will be a lien on the Lot Owner’s Lot, which
may be collected and foreclosed upon in the same manner as other Assessments.
5.4 Easements for Access, Drainage, Utilities, Retaining Walls, Etc. The Plat provides that certain Lots
and Tracts are subject to easements for access, drainage, utilities, retaining walls and other
purposes, which easements may benefit other Lot Owners, the Association, utilities providers, the
general public, and others. Such easements may describe maintenance responsibilities over the
easement area, and the affected Lot Owner or the Association may be responsible for the costs
of such maintenance.
5.5 Utilities. Each Lot Owner shall contract and pay for all utilities, including water, sewer, garbage,
electricity, telephone, cable and internet services, that are separately metered or chargeable to
such Lot Owner’s Lot. If any utilities are not metered or cannot be billed separately to each Lot,
then the Association shall contract and pay for such utilities, and such utilities which serve
individual Lots will be assessed to respective Lot Owners on the basis of usage determined by sub-
meters or other reasonable methods as determined by the Board.
5.6 Protected Landscaping. Protected Landscaping must be maintained in accordance with good
nursery practices and the requirements of the Permits and Approvals. The Association will
maintain Protected Landscaping located on a Lot or on a Common Element, unless such
maintenance is assumed by a governmental entity. If a Lot Owner removes or improperly alters
Protected Landscaping without the prior consent of Declarant, the Declarant (or after the
Declarant’s rights in this Section have terminated, the Association) or the applicable Authority
may bring an action to restrain the removal or alteration or for damages for the removal or
alteration including attorneys’ fees and enhanced damages to the extent provided by applicable
law.
5.7 Declarant Maintenance Rights; Declarant Bonds. If the Association or the responsible Lot Owner
does not comply with the maintenance obligations in this Section 5 or elsewhere in this
Declaration, the Declarant may perform such maintenance or related work at the cost of the
Association or Lot Owner, as applicable. The obligation for that cost will be a lien on the
Community or the Lot, as applicable. The Declarant may enforce that lien in the manner provided
in Chapter 61.12 RCW. The Declarant’s easement rights in Section 10 are applicable to the
Declarant’s rights to perform maintenance or related work required under this Section. The
Declarant’s rights under this Section will terminate upon the termination of the Declarant Control
Period, or later, if Declarant has posted bonds for Protected Landscaping or other required
portions of the Community, in which case Declarant’s rights under this Section will terminate (i)
when all bonds posted by the Declarant are exonerated without claims, (ii) when Declarant has
fully recovered any amounts related to the work deducted from any such bonds, or (iii) 6 years
after the date of any forfeiture of any such bonds, whichever occurs first.
6. Powers and Responsibilities of the Association
6.1 Acceptance and Control of Property. The Association may acquire, hold, and dispose of real
property and interests in Real Estate and tangible and intangible personal property, for the benefit
of the Lot Owners and subject to the restrictions and obligation of any deed or other conveyance
to such property or any appurtenance of such property. For clarity, the Association shall have no
14
authority over any public right-of-way or any other property not owned by the Association or the
Lot Owners.
6.2 Maintenance of Common Elements. The Association will maintain all Common Elements, other
than Limited Common Elements for which maintenance is the responsibility of the Lot Owners
sharing use of the Limited Common Element, as provided in the Plat or this Declaration. The cost
of that maintenance by the Association is a Common Expense. The Common Elements are defined
in RCW 64.90.010(7) and in any event include:
6.2.1 the Common Elements identified on the Plat including any landscaping and Protected
Landscaping thereon;
6.2.2 entry features and landscaping on Real Estate owned by the Association or over which
the Association has an easement;
6.2.3 street trees, irrigation facilities, storm detention vaults and other storm water facilities,
streets, sidewalks, street lighting, parking areas, transit shelters, trails, ponds, streams,
wetlands, open spaces, native growth protection, conservation, sensitive, and buffer
areas, recreational amenities, all to the extent not owned or maintained by an Authority
or other governmental entity, and all improvements, signage, and equipment in all such
areas;
6.2.4 planter strips (if any), medians, and, to the extent not located on any Lot, fences and
hedges;
6.2.5 cluster mailbox units;
6.2.6 Private Roads, if any, unless maintenance is allocated to the Lot Owners using the private
roads;
6.2.7 Critical Areas, if any, for the protection of wetlands, streams, native growth areas, and
the like (as more fully set forth on the Plat); and
6.2.8 other improvements in or outside the Common Elements that are described as Common
Elements in this Declaration, on the Plat or in any contract or agreement entered into by
or binding on Declarant or the Association.
The Association will use commercially reasonable efforts to maintain the Common Elements
consistent with this Declaration, the Community-Wide Standard, and the Permits and Approvals.
The Association will maintain any Common Elements subject to regulation under applicable
federal, state, and local law in compliance with said laws. In addition, following the Declarant
Control Period, the Association shall perform at its expense any maintenance or repair obligations
required to be performed in order to obtain exoneration of any performance or maintenance
bonds posted or assumed by Declarant in connection with plat construction or recording. This
includes maintenance and repair on the Common Elements and/or on any Lot. If the Association
does not do so, the Declarant shall have the right to do so at the expense of the Association, and
shall have the easement rights under Section 10 for that purpose.
6.3 Private Road Operation and Maintenance. See Schedule 1.
6.4 Water Management. The Association shall have the right, but is not obligated, to develop and to
implement various programs and practices for water conservation and wastewater, surface
water, ground water, rainwater and other water management activities. The Association shall
"private trees"
the city owns and maintains street trees within the right-of-way
"private roads/alleys"
the city owns and maintains streets within the right-of-way
15
have the authority to implement and enforce restrictions and standards that ensure that the
quality and quantity of runoff, plant material absorption, and ground water recharge are as near
their natural state as is feasible.
6.5 Liability of Officers and Directors. A director or officer is not liable to the Association or its
members for conduct as a director or officer, except for acts or omissions that involve intentional
misconduct or a knowing violation of the law, or as otherwise provided for by applicable law.
6.6 Indemnification; Exculpation. To the fullest extent permitted by Washington law, the Association
will indemnify every officer, director, and committee and subcommittee member against all
damages and expenses, including counsel fees and other defense costs, reasonably incurred in
connection with any action, suit, proceeding, or in the settlement thereof if approved by the
Board, to which such Person may be a party by reason of being or having been an officer, director,
or committee or subcommittee member.
The foregoing Persons will not be liable for any mistake of judgment, negligence or otherwise,
except for their own willful misfeasance, malfeasance, misconduct or bad faith. Such Persons, in
their indicated capacities, will have no personal liability under or with respect to any such
contract, commitment, or action, as provided in the first paragraph of this Section 6.6.
The right to indemnification under this Section 6.6 will not be exclusive of any other rights to
which any such Person may be entitled, under the Governing Documents or otherwise.
The Association will maintain adequate general liability and officers’ and directors’ liability
insurance coverage to cover its obligations under this Section 6.6, to the extent such insurance is
reasonably available, and the cost of such insurance will be a Common Expense.
6.7 Safety and Security. No measures by Declarant, TPG or the Association to maintain or improve
the safety and security of the Community will cause the Declarant, TPG or Association to be
treated as insurers or guarantors of security in the Community, or make them liable for any loss
or damage for any failure of security. No representation or warranty is made that any security
systems or measures will be effective or prevent loss or crime. Each Lot Owner and other Person
entering the Community assumes all risks of personal injury and property damage, including to
the Lots and dwelling units and the contents thereof, due to the acts of third parties.
6.8 Dissolution of Association. If the Association is dissolved, beyond any opportunity to reinstate its
status as a Washington nonprofit corporation, the rights and duties of the Association and its
interest under this Declaration and in the Common Elements and other assets, if any, will vest in
the Lot Owners as tenants in common. Following any corporate dissolution of the Association,
any Lot Owner may reinstate the Association as a nonprofit corporation, or create a new nonprofit
corporation as a successor to the Association, by filing the required documents with the
Washington Secretary of State, which documents may not be inconsistent with this Declaration.
The reinstated or successor Association will have the same composition as the dissolved
Association, with all Lot Owners as members and having the same voting and other rights as they
had in the dissolved Association. The Governing Documents of the dissolved Association will be
the Governing Documents of the reinstated or successor Association, to the maximum possible
extent.
6.9 Power and Authority Generally. The Association or Declarant, during the Declarant Control
Period, will have the power and authority to dedicate, transfer or encumber any Common
Elements, and provide services of any nature or description to Lot Owners, to enter into
16
easements, covenants, cost-sharing agreements and other agreements and contracts with other
associations, owners of other properties and any Authorities or other third parties, to create,
contribute to the costs of and/or enter into easements, covenants and other agreements and
contracts with subsidiaries or other affiliated or unaffiliated organizations, including non-profit
and tax-exempt organizations, to provide Lot Owners with use rights of other areas outside the
Community, to open portions of the Common Elements for the use and enjoyment of the public,
or to effectuate any other matter that an association may have power and authority over under
RCW 64.90.405(2). Any of the powers described in this Section 5.1 or RCW 64.90.405 may be
delegated to a master association as described, and subject to the provisions of, RCW 64.90.300.
6.10 Declarant Control Period. Notwithstanding any other provision of this Declaration, the Declarant,
or Persons designated by the Declarant, will have the rights to (i) appoint and remove the officers
and members of the Board, (ii) veto or approve any proposed action of the Board, including any
committee of the Board, or Association, including without limitation any proposed Amendment
of this Declaration or the Plat, and take any other action permitted under the Act. These rights of
Declarant Control will be subject to RCW 64.90.415. The period of Declarant Control will terminate
when provided in RCW 64.90.415(2). It is understood that RCW 64.90.415(2) and (3) qualify the
rights of Declarant Control by requiring that a certain number or percentage of members of the
Board be elected by Lot Owners other than Declarant upon the conveyance to Lot Owners of
certain percentages of the maximum number of Lots that may be created in the Community (as
set forth on Schedule 1).
6.11 Number of Directors. Before the transition meeting following the period of Declarant Control,
the Declarant shall cause the Board to have at least three and not more than five members.
6.12 Resale Certificates. If and only if required by the Act, upon request of a Lot Owner, the Association
shall prepare and deliver a resale certificate for the Lot Owner’s Lot in accordance with RCW
64.90.640.
7. Tracts and Rights-of-Way
7.1 Tracts. See Tract Table on Schedule 1.
7.2 Rights of Way. Upon recording of the Plat, the public rights-of-way, if any, as established or
shown on the Plat shall be dedicated and conveyed to the City of Renton for public road purposes.
7.3 Additional Real Estate. If additional Real Estate is added to the Community in accordance with
Section 9 and/or Schedule 1, the amendment to this Declaration to add such Real Estate to the
Community shall include a description of the tracts, rights-of-way and easements established or
shown on the Plat for such additional Real Estate, in a manner consistent with this Section 7.
8. Association Finance
8.1 Budgeting and Assessments; Specially Allocated Assessments. The Association will adopt
budgets and make Assessments at least annually, in the manner provided in RCW 64.90.480 and
RCW 64.90.525. The Association also may assess a working capital contribution for each Lot, as
provided in RCW 64.90.480(2), and may impose special assessments as provided in RCW
67.90.525. Except as otherwise provided in this Declaration or in the Act, including the right of
Declarant to delay commencement of certain common expenses under RCW 64.90.480(3)(1) and
(2), all Lots that have been created will bear an equal Allocated Interest in all common expenses.
The Association shall reconcile its accounts at least annually, and any surplus funds of the
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Association remaining after payment of or provision for Association expenses and any
prepayment of or provision for reserves, shall be retained by the Association, and reflected in the
budget for the following period.
The Association will allocate the expenses associated with any Limited Common Elements
described in RCW 64.90.480(4)(a) against the Lots to which each Limited Common Element is
assigned as set forth on Schedule 1, equally or in some other proportion that the Association
determines, without an amendment of this Declaration.
With respect to Association Maintenance Items, the Association will allocate expenses associated
with Association Maintenance Items (i) equally to all Lot Owners if the Association Maintenance
Item benefits all Lots, (ii) to an individual Lot Owner if the Association Maintenance Item is for the
benefit of a particular Lot, or (iii) among the benefitted Lot Owners if the Association Maintenance
Item benefits fewer than all of the Lots.
The Association may from time to time determine that other expenses benefit fewer than all the
Lots, and allocate those expenses against the Lots benefitted, in proportion to their respective
common expense liability, or in some other proportion that the Association determines, without
an amendment of this Declaration.
To the extent Declarant has delayed the commencement of assessments for common expenses
or specially allocated expenses upon the initial sale of a Lot to a purchaser (as defined in the Act),
then Declarant shall pay all such expenses that have been delayed. However, to the extent the
Association assesses a working capital contribution as provided in this Section 8.1, it may use the
working capital to pay (or reimburse Declarant for) common expenses of the Association, even if
assessments for such expenses have been so delayed. This use of working capital shall be limited
based on the percentage of the total Lots in the Community (as set forth on Schedule 1) that have
been sold to purchasers (as defined in the Act). By way of example and not limitation, if 65% of
the Lots have been sold to purchasers, the Association may use working capital to pay (or
reimburse Declarant for) 65% of any common expense of the Association; Declarant shall pay the
remainder of such common expense.
To the extent that any expense is caused by the willful misconduct, gross negligence, or ordinary
negligence of any Lot Owner or that Lot Owner’s tenant, guest, invitee, or occupant, the
Association may assess that expense against the Lot Owner’s Lot, after notice and an opportunity
to be heard, even if the Association maintains insurance for that damage or expense. To the extent
the subject expense is caused by ordinary negligence only, however, the assessment to that Lot
Owner will be only to the extent of the Association’s deductible under that insurance or the extent
to which the expense or damage is not covered by that insurance.
8.2 Reserves; Reserve Study. The Association will prepare and update a reserve study, and budget
for and maintain reserves, in the manner provided in RCW 64.90.525(2)(d) and RCW 64.90.545-
560, unless an exemption under RCW 64.90.545(2) applies.
8.3 Time of Payment; Enforcement; Hardship. Assessments will be payable monthly or quarterly, or
at such other intervals as are determined by the Board from time to time, but in any event
assessments must be payable at least annually. The Association will have all rights and remedies
against a Lot Owner and a Lot for unpaid assessments that are available under applicable law,
including without limitation (i) the statutory lien on the Lot under RCW 64.90.485, and (ii) the
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right to deny the Lot Owner access to any recreational amenities during any delinquency. The
Board may review and grant extensions based on Lot Owner hardship and other conditions.
9. Development Rights
9.1 Reservation of Development Rights. Declarant reserves to itself or its successor the Development
Rights set forth in RCW 64.90.010(20)(a)-(e). Except as may be provided otherwise in this
Declaration or the Act, Declarant may exercise these Development Rights in Declarant’s sole
subjective discretion. To exercise any Development Right, Declarant will execute and record
required amendments to this Declaration and the Plat and comply with the other applicable
requirements of RCW 64.90.250.
9.2 Addition of Real Estate. Declarant may add or annex Real Estate or improvements to the
Community. Such Real Estate need not be contiguous to the Property. When so added or annexed,
the subject Real Estate or improvements will become part of the Property under this Declaration.
The boundaries of the Real Estate that Declarant may add or annex to the Community are not
fixed, unless otherwise provided in this Section 9.2 or in Schedule 1. Declarant may but will not
be required to add or annex parcels of Real Estate at different times, in such order as Declarant
determines. No assurances are made that Declarant will or will not add Real Estate to the
Community, nor that Declarant will develop all of the Property or all of the Real Estate against
which this Declaration is of record. Except as may otherwise be provided in Schedule 1, this
Development Right will continue until Declarant owns no Real Estate in the Community, or until
Declarant surrenders and terminates this right in writing. While this Development Right is in
effect, any addition of Real Estate to the Community by the Association by amendment of this
Declaration will require the approval of Declarant. In addition to Declarant’s Development Rights
under this Section 9.2, Declarant may amend this Declaration to add property to the Community
in accordance with RCW 64.90.315, which right will continue until Declarant owns no Real Estate
in the Community, or until Declarant surrenders and terminates this right in writing.
9.3 Create Lots, etc. Declarant may create Lots, Common Elements, and Limited Common Elements
in the Community, including without limitation in any Real Estate added to the Property under
Section 9.2. This Development Right will continue until Declarant owns no Real Estate in the
Community, or until Declarant surrenders and terminates this right in writing.
9.4 Subdivision, Combination, or Conversion. Declarant may subdivide or combine Lots, or convert
Lots into Common Elements. Any such subdivision, combination, or conversion will be
accompanied by a re-allocation of Allocated Interests as required by RCW 64.90.250(3)(a) or (b),
or RCW 64.90.250(5). This Development Right will continue until Declarant owns no Real Estate
in the Community, or until Declarant surrenders and terminates this right in writing.
9.5 Withdrawal of Real Estate. Declarant may withdraw Real Estate from the Community. When so
withdrawn, that Real Estate will no longer be subject to this Declaration. All Real Estate in the
Community is subject to this right of withdrawal; provided, however, that once a Lot has been
conveyed to a purchaser, as defined in the Act, the right of withdrawal with respect to the entire
Property, or to any portion of the Property described in the Plat as being subject to a separate
right of withdrawal and containing that Lot, will terminate, unless the Lot Owner and the holder
of any security interest in that Lot have consented to any such withdrawal. Subject to that
termination, this development right will continue until Declarant owns no property in the
Community, or until Declarant surrenders and terminates this right in writing.
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9.6 Reallocation of Limited Common Elements. Declarant may reallocate Limited Common Elements
with respect to Lots that have not yet been conveyed by Declarant.
10. Special Declarant Rights; Declarant Rights Generally; Transfer
10.1 Reservation; Duration. Declarant reserves the Special Declarant Rights set forth in this Section
10.1. Except as otherwise provided in this Declaration or in the Act, the Special Declarant Rights
may be exercised at any time during the Declarant Control Period (see Section 6.10).
10.1.1 Improvements. Declarant may complete any infrastructure improvements or other
improvements indicated on the Plat or described in this Declaration or in the public
offering statement for the Community as described in RCW 64.90.610(1)(h). These
improvements include without limitation utilities of all kinds, to be owned by the
Association or by public or private utility service providers, roads, trails, parks and
Protected Landscaping.
10.1.2 Development Rights. Declarant has the Development Rights described or referenced in
Section 9.
10.1.3 Sales Offices, Etc. Declarant (or any Declarant-authorized builder in the Community) may
maintain, on Common Elements or on Lots, sales offices, management offices, and signs
advertising the Community, and the right to maintain model homes on Lots, all as
provided in RCW 64.90.275. Subject to any applicable law to the contrary, this right will
continue until Declarant is no longer engaged in marketing or sale of homes in the
Community or in nearby communities owned by Declarant or any of its affiliates.
10.1.4 Easements Through Common Elements and Lots and other Rights. Declarant has the right
to use easements through the Common Elements, hereby granted and/or granted on the
Plat or elsewhere in this Declaration, for the purpose of making or maintaining
improvements in the Community, including in Real Estate added to the Community, as
described in RCW 64.90.280 and Section 10.1.1. Declarant also has an easement, as set
forth in Section 11.3, over and across any Lot for the purpose of making or maintaining
improvements, including Association Maintenance Items, in the Community. To the
extent reasonably necessary for that purpose, Declarant also has an easement, hereby
granted, over and across any Lot, but not over, under, or through any dwelling unit. These
easements will continue for Declarant’s benefit beyond the period of Declarant Control
to the extent Declarant has continuing bonded or unbonded maintenance obligations to
an Authority or other governmental entity in connections with the Permits and Approvals.
The existence of these easements shall not, however, affect the obligations of the
Association to maintain the Common Elements as set forth in this Declaration. Declarant
shall also have the right to take any action the Association may take under Section 6.9
unless prohibited by the Act.
10.1.5 Master Association. Declarant has the right to make the Community subject to a master
association, as described in Section 6.9 and RCW 64.90.300.
10.1.6 Merger and Consolidation. Declarant may merge or consolidate the Community with
another plat community under the Act.
10.1.7 Declarant Control. Declarant has the rights of Declarant Control as described in Section
6.10.
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10.1.8 Design Review Control. Declarant has the right to control the Improvement Committee,
act as the Review Authority, and otherwise exercise the rights related to design review
described in Section 4.
10.1.9 Meetings. During the period of Declarant Control, Declarant has the right to attend
meetings of the Lot Owners, and of the Board (except during any duly called executive
session) or any committee of the Association.
10.1.10 Records. Declarant has the right of access to the records of the Association to the same
extent as any Lot Owner.
10.2 Other Declarant Rights. It is the intent of this Declaration that Declarant has any right granted or
permitted by applicable law to be held by a Declarant as defined in the Act, subject to any contrary
provision of this Declaration. Without limiting the foregoing, (a) during the period of Declarant
Control, Declarant has the right to approve any easement, covenant, declaration, or similar
instrument affecting the Community, and no such instrument will be recorded without the
Declarant’s prior written consent, and any such recordation without the Declarant’s prior written
consent will be void; (b) while Declarant owns or has the right or option to acquire, or controls
any Real Estate in the Community, Declarant has the right to convey Lots to governmental
agencies and municipalities, and may re-acquire any property that has been transferred to any
entity other than the Association; (c) so long as Declarant owns Real Estate in the Community or
that may become subject to this Declaration, no amendment or modification of any Restrictions
on Use or Guidelines will be effective without the prior written consent of Declarant; (d) no person
may make any claim or demand or institute any litigation or arbitration concerning the design or
construction of any structures or improvements in the Community unless Declarant (or any Dealer
involved in the design or construction) has first been given written notice of the claim or demand
and given the opportunity to meet with the Lot Owner or other such Person to discuss the
Person’s concerns, and conduct Declarant’s (or the Dealer’s) own inspection; and (e) if the
Community is a gated community, then while Declarant is engaged in the sale of homes or using
model homes in the Community, the Declarant may keep the gates open during business hours.
10.3 Transfer of Declarant Rights. Any or all Special Declarant Rights or other rights or obligations in
this Declaration or other Governing Documents may be transferred to another Person or Persons;
any such transfer of Special Declarant Rights will be governed by and have the effect set forth in
RCW 64.90.425.
11. Easements; Shared Improvements; Party Walls
In addition to the easements declared on the Plat, including easements referred to in Section 5.4, and in
Section 10.1.4, and granted to Declarant and Lot Owners in accordance with RCW 64.90.280, the
easements in this Section 11 are hereby declared by Declarant, with the consent of TPG.
11.1 Encroachments. The Declarant, Association and Lot Owners are granted reciprocal appurtenant
easements of encroachment, and for the maintenance and use of encroachments between any
Lot and any adjacent Common Element and between any Lot and any adjacent Lot, due to the
placement by the Declarant or Association of any improvements, or the settling or shifting of any
such improvements, including without limitation fences, walkways, walls, and roof overhangs;
provided that such easements shall only be granted to the extent the applicable encroachment(s)
do(es) not violate any Authority’s zoning setback requirements. No such easement will exceed a
distance of three feet measured perpendicularly from the common boundary. No such easement
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will exist in favor of a Lot Owner who is the encroaching party, however, if the encroachment was
the result of intentional and knowing conduct on the part of that Lot Owner. No easement under
this Section 11.1 will give rise to or ripen into any adverse possession, and any such easement will
terminate upon the removal of the encroaching improvement.
11.2 Authority. An easement is declared and granted for the benefit of the Authorities and the
Association over the Community as necessary for the Authorities to fulfill its maintenance
responsibilities under applicable law and the Association as required to fulfill its maintenance
responsibilities under this Declaration. This easement includes the right of the Authorities and
Association, as applicable, to come upon any Lot for inspection, safety and security purposes,
including in an emergency. Except in an emergency, entry onto a Lot under this easement will only
be after reasonable advance notice to the Lot Owner.
11.3 Declarant, Association and Lot Owners. The Declarant, the Association and each Lot Owner have
an easement over the Common Elements, Limited Common Elements, and Lots to the extent
reasonably necessary for each of them to fulfill their maintenance and repair and inspection
obligations, including Association Maintenance Items and including maintenance and repair
requirements to be performed by Declarant or the Association to obtain exoneration of any
performing or maintenance bonds posted by Declarant in connection with plat construction and
recording. Without limiting the foregoing, this easement will be for the purposes in
RCW 64.90.440(1) and (2) and will be subject to RCW 64.90.440(3).
11.4 Shared Improvements. Each wall, fence, driveway, utility line or equipment, or similar
improvement or structure built as part of the original construction of the Lots and that serves
and/or separates more than one Lot and is not designated as a Limited Common Element, a Party
Wall on the Plat is a “Shared Improvement” under this Declaration. Any tract providing access to
more than one Lot and ownership of which is shared by those Lots is also a Shared Improvement.
Subject to any inconsistent provision of this Section 11.4 or this Declaration, the general rules of
law regarding party walls, tenancy in common and liability for property damage for negligence or
willful acts or omissions will apply to Shared Improvements. The cost of reasonable maintenance
and repair of any Shared Improvement will be shared equally by the Lot Owners who make use of
the Shared Improvement. If a Shared Improvement is damaged or destroyed by casualty, then to
the extent the Shared Improvement is not repaired by proceeds of insurance, any such Lot Owner
may repair the Shared Improvement. Other Lot Owners who use the repaired Shared
Improvement will be responsible to contribute to the cost of repair in equal shares, subject to any
different allocation of responsibility under applicable law because of the negligent or willful acts
or omissions of any Lot Owner. The contribution right and obligation under this Section 11.4 will
run with the land and bind and benefit the Lot Owners and their successors and assigns. Additional
provisions concerning specific Shared Improvements may be set forth on Schedule 1.
11.5 Party Walls.
11.5.1 General. To the extent not inconsistent with the provisions of this Declaration, the Plat
and the Act, the general rules of law regarding party walls and liability for property
damage due to negligent or willful acts or omissions shall apply to the Party Walls. Nothing
may be done that will lessen or impair the structural support and integrity of the Party
Walls. Each Lot Owner of a Party Wall Adjoining Lot shall have the right to joint use, with
the Lot Owner of the other Party Wall Adjoining Lot, of the Party Wall. Except as otherwise
expressly permitted in this Declaration or by the Board, no windows, chimney flues, or
other openings may be made in a Party Wall, and no Lot Owner may undertake or permit
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any act that impairs the use of the Party Wall by the home on any other Party Wall
Adjoining Lot. The Lot Owner of each Party Wall Adjoining Lot shall maintain the home on
that Lot and take all other steps reasonably necessary to protect the Party Wall from
damage or deterioration from any cause, whether sudden or cumulative, including, but
not limited to, water or moisture intrusion, damage from weather conditions, dry rot and
infestation by vermin or insects.
11.5.2 Party Wall Work. The Lot Owner of each Party Wall Adjoining Lot shall have the right to
expose and gain access to the interior of the Party Wall for the purpose of maintaining,
repairing, restoring, reconstructing, rebuilding and altering any component of that Party
Wall (collectively "Party Wall Work"), subject to this Declaration and the following
requirements: (i) all Party Wall Work shall be subject to review and approval of the
Association or Improvement Committee and shall comply with applicable law and, except
as otherwise provided in this Declaration or by the Board, shall be done at the sole
expense and responsibility of that Lot Owner; (ii) no Party Wall Work may in any way
negatively affect the other Party Wall Adjoining Lot or the home thereon by removing
soundproofing or insulation, altering its utility service or otherwise; (iii) no Party Wall
Work may in any way impair the structural integrity or functioning of the Party Wall; and
(iv) the Lot Owner undertaking the Party Wall Work shall be responsible for any damage
in any way arising out of and/or related to the Party Wall Work.
11.5.3 Indemnification. The Lot Owner of a Party Wall Adjoining Lot ("Indemnifying Owner")
shall indemnify and hold harmless the Lot Owner of the other Party Wall Adjoining Lot
from and against any and all liability, suits, costs and expenses (including attorneys’ fees)
in any way arising out of any lien or claim of lien asserted and/or filed related to any Party
Wall Work for which the Indemnifying Owner is responsible under this Declaration, or
otherwise.
11.5.4 Cost of Repair. Except as otherwise provided in this Declaration, the Lot Owners of Party
Wall Adjoining Lots shall equally share the expense of all reasonably necessary
maintenance and repair of the Party Wall. If a Party Wall is damaged or destroyed by fire
or other casualty or other cause, the Lot Owners of the Party Wall Adjoining Lots shall,
except as otherwise provided in this Declaration, equally share the cost to repair or
reconstruct the Party Wall to essentially its condition prior to such damage or destruction.
Any Lot Owner who has the use of the wall may restore it, and the other Lot Owner who
makes use of the wall shall contribute one-half of the cost of restoration thereof without
prejudice, subject however, to the right of any such Lot Owner to call for a larger
contribution from the other Lot Owner under any otherwise applicable rule of law
regarding liability for negligent or willful acts or omissions. Notwithstanding any other
provision of this Declaration, if the need for maintenance, repair, replacement,
restoration and/or reconstruction of a Party Wall results from the intentional acts or
negligence of a Lot Owner or an occupant of that Lot Owner's Lot, or the licensee or
invitee of that Lot Owner or occupant, then that Lot Owner shall promptly maintain,
repair, replace, restore and/or reconstruct the Party Wall and shall be solely responsible
for all expenses and damages related to and/or arising out of such intentional acts or
negligence.
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11.5.5 Right to Contribution Runs with Land. The right of any Lot Owner to contribution from any
other Lot Owner under this Section shall run with the land and bind and benefit the Lot
Owners and their successors and assigns.
12. Dispute Resolution
12.1 Dispute Resolution Procedures. To the fullest extent permitted by applicable law, controversies
or disputes, whether they are statutory, contractual, tort claims and/or counterclaims between
or among the “Declarant Parties” defined below, the Association and/or Lot Owner(s) (each, a
“Party”, collectively, the “Parties”) which arise out of or are related to (a) the Community, (b) a
Lot, (c) any portion of the Common Elements and/or (d) the relationship between a Lot Owner
and Declarant or between the Association and Declarant, whether contractual, statutory or in
tort, including without limitation claims, issues or controversies that arise from or are related to
the purchase, sale, condition, design, construction or materials used in construction of any portion
of the Community, any Lot or any portion of the Common Elements, the agreement between
Declarant and a Lot Owner to purchase a home or any related agreement, any agreement
between Declarant and the Association, any limited warranty provided to a Lot Owner by
Declarant (“Homebuyer Warranty”), any limited warranty provided to the Association by
Declarant which is applicable to the Common Elements (“Association Warranty”), disclosures, or
any alleged deficiencies in the construction, design, specifications, surveying, planning,
supervision, testing, observation of construction or any substandard conditions related in any way
to a Lot, any portion of the Common Elements or the Community (each, a “Dispute” and
collectively referred to herein as “Disputes”), including without limitation (i) any claim, issue or
controversy that arises from or is related in any way to any alleged violation of building or
construction codes, failure to adhere to generally accepted workmanship standards and/or
construction defects as defined in and subject to RCW 64.50.005 through 64.50.060 (“Statutory
Pre-Litigation Claim”), (ii) any disagreement as to whether the conditions that are the subject of
a Statutory Pre-Litigation Claim have been properly repaired, (iii) any disagreement as to the value
of repairing damages which are the subject of a Statutory Pre-Litigation Claim, (iv) the cost of
repairing damage caused by the repair efforts, the cost to remove or replace an improper repair,
and any alleged relocation expenses, storage expenses, lost business income, investigation costs
and all other fees and costs recoverable by contract or statute as a result of a Statutory Pre-
Litigation Claim and (v) any disagreement concerning the timeliness of Declarant’s performance,
a Lot Owner’s notification under the Homebuyer Warranty or the process for resolving claims set
forth in RCW 64.50.005 through 64.50.060 (“Claim Process”) or the Association’s notification
under the Association Warranty or the Claim Process, shall be resolved in accordance with the
procedures specified herein.
Notwithstanding the foregoing, (i) in accordance with RCW 64.90.405(3), the Association will not be
limited in its power to institute litigation, mediation, or any administrative proceeding against any
Person, except (A) construction defect claims by the Association will be subject to the procedures in
Chapter 64.50 RCW and the dispute resolution procedures set forth herein; and (B) Disputes between
the Association and Lot Owner(s) or between two or more Lot Owners regarding the Community
(other than those governed by Chapter 64.50 RCW), shall be submitted to nonbinding alternative
dispute resolution (1) if agreed to in accordance with Section 12.7 or so ordered by an arbitrator, or
(2) as a prerequisite to commencement of a judicial proceeding.
12.2 Negotiated Resolution. To the fullest extent permitted by applicable law, the Parties will seek a
fair and prompt negotiated resolution of any Disputes and shall meet at least once to discuss and
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seek to resolve such Disputes, but if this is not successful, all Disputes shall be resolved in
accordance with Section 12.3 or Section 12.4, as applicable.
12.3 Claim Process or Mediation. Any Disputes which are not resolved through the process set forth
in Section 12.2 above shall be resolved in accordance with this Section 12.3 as a condition
precedent to arbitration as set forth in Section 12.4.
12.3.1 Statutory Pre-litigation Claims. If a Dispute involves a Statutory Pre-litigation Claim and is
not resolved under Section 12.2, such Statutory Pre-litigation Claim shall be resolved in
accordance with the Claim Process.
12.3.2 Other Claims. If a Dispute does not involve the design and construction of a dwelling or
arises out of or relates to a Statutory Pre-litigation Claim (“Other Claim”) and is not
resolved under Section 12.2, such Other Claim shall be subject to mediation, which shall
be conducted in accordance with this Section 12.3.2. Prior to initiating mediation
proceedings, a “Claimant” (as defined below) shall file a Notice of Claim with Declarant’s
agent for service of process listed with the Secretary of State (“Notice of Claim”). The
Notice of Claim must (i) provide Claimant’s name, address and telephone number (or the
information necessary to use an alternative method of contact such as facsimile or e-
mail), (ii) describe the Other Claim in sufficient detail to enable Declarant to determine
the location, nature and extent of the Other Claim, and (iii) include a request for
mediation.
(i) Mediator. The mediation shall be conducted by a single neutral and impartial
mediator employed by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) or the
American Arbitration Association, in accordance with the rules established by the
selected service (“Mediation Provider”). Declarant shall have the right to select the
mediator by notifying a Lot Owner or the Association (a “Claimant”) in writing within ten
(10) business days following the date of service of the Notice of Claim. If Declarant selects
the mediator, Declarant shall pay any filing fees required by the Mediation Provider and
the first four (4) hours of the mediator’s fees. If the mediation lasts more than four (4)
hours, any additional fees shall be split equally between Claimant and Declarant. At
Claimant’s sole option, Claimant may agree to share the filing fees required by the
Mediation Provider and the fees of the mediator, including the first four (4) hours, equally
with Declarant. If Claimant so agrees, then Claimant and Declarant shall jointly select the
mediator. If the Parties cannot agree on a mediator within fourteen (14) days following
the date of service of the Notice of Claim, the Mediation Provider shall select the
mediator. No person with any financial or personal interest in the mediation’s result shall
serve as a mediator, except by the written consent of the Parties. Prior to accepting any
appointment, the prospective mediator shall disclose any circumstances likely to create a
presumption of bias or prevent a prompt commencement of the mediation process.
(ii) Location of Mediation. The mediation shall be held in King County or such other
place as is mutually acceptable to the Parties.
(iii) Additional Parties. Declarant shall have the right to include other persons or
entities in the mediation, including any of its subcontractors, material suppliers, design
professionals, individual product manufacturers, warranty company representative and
insurance carrier representatives.
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(iv) Refusal to Participate. If a Party refuses to participate in the mediation, then the
other Party may initiate arbitration proceedings as provided in Section 12.4.
(v) Mediation Session(s). The mediation session(s) shall be commenced as quickly as
reasonably practical in the discretion and judgment of the mediator but not later than
thirty (30) days following the date of service of the Notice of Claim. The Parties shall
cooperate in good faith with each other and with the mediator and shall provide all
documents reasonably required by the mediator to be provided. Without mutual
agreement of Claimant and Declarant, the mediation shall not exceed four (4) hours.
(vi) No Attorneys' Fees. The Parties shall be solely responsible for their own attorneys’
fees and no Party shall be entitled to an award of its attorneys’ fees. Nothing herein shall
be construed to modify or abrogate any duty to defend and/or indemnify another party
pursuant to the terms of a contract between any such parties
(vii) Confidentiality. The entire mediation proceedings shall be maintained in the
strictest confidence and documentary or demonstrative evidence or testimony
introduced or revealed to the mediator or other Party during the mediation shall be
inadmissible in any subsequent proceeding including litigation and arbitration. The
provisions of Chapter 7.07 RCW shall be applicable to the mediation.
12.4 Mandatory Binding Arbitration. Before Claimant institutes arbitration proceedings as provided in
this Section 12.4 involving a Statutory Pre-litigation Claim, Claimant must first commence the
Claim Process and proceed, in good faith, to resolve the claim using the Claim Process. Before
Claimant or Declarant institutes arbitration proceedings which do not involve a Statutory Pre-
litigation Claim, Claimant or Declarant shall, in good faith, attempt to resolve the Other Claim by
mediation in accordance with the mediation procedures set forth in Section 12.3.2 above. If
negotiations, mediation or other non-binding dispute resolution procedures, including the Claim
Process, fail to resolve any Dispute between any Claimant and the Declarant Parties, then the
Dispute shall be resolved by neutral, binding arbitration governed by the Federal Arbitration Act
(9 U.S.C. §§1-16) (“Federal Act”) and Washington’s Uniform Arbitration Act, Chapter 7.04A RCW,
not by any court action except as provided for judicial review of arbitration proceedings under
the Federal Act. A demand for arbitration shall be delivered in accordance with the notice
provision herein by the Party desiring to arbitrate such Dispute to the other Party within thirty
(30) days after the conclusion of either the Statutory Prelitigation Claim or mediation of an Other
Claim, as applicable.
12.4.1 Federal Arbitration Act. The construction of the Lots, Common Elements and Community
involved interstate commerce and therefore the arbitration procedures specified in this
Section 12.4 are to be interpreted and enforced as authorized by the Federal Act, which
is designed to encourage use of alternative methods of dispute resolution that avoid
costly and potentially lengthy court proceedings. The Lots, Common Elements and
Community were constructed with materials and products manufactured throughout the
United States which have been shipped to the Community for installation and involved
communications by interstate mail and telephone with out-of-state manufacturers,
design professionals, contractors and their employees. The shipment of such materials
and products across state lines cause the products and materials to enter into the stream
of interstate commerce and become subject to the Interstate Commerce Clause (Article
I, Section VIII of the United States Constitution) and ensuing federal laws. Interpretation
and application of the procedures set forth in this Section 12.4 shall conform to any
26
applicable federal court rules and decisions interpreting and applying the Federal Act. The
arbitration proceedings shall be conducted pursuant to the Federal Act and, to the extent
not inconsistent, the procedures set forth in this Section 12.4. In addition, except as set
forth herein, and to the extent it is not inconsistent with the Federal Act, the arbitration
shall be conducted pursuant to Washington’s Uniform Arbitration Act, RCW Sections
7.04A et seq. References to Washington’s Uniform Arbitration Act are for guidance only
and shall not be construed as a waiver of any rights or duties of the Parties under the
Federal Act or the right of the Parties to have the procedures set forth in this Section 12.4
interpreted and enforced under the Federal Act. If any Party seeks review by a court of
the enforceability of any of the procedures set forth or referenced herein
(notwithstanding the provisions herein making that issue one to be resolved by the
arbitrator), the exclusive jurisdiction and venue for any such review shall be the Superior
Court for King County.
12.4.2 Other Parties. For purposes of this Section 12 only, the term “Declarant Parties” refers to
Declarant and TPG and their partners, members or other principals and their respective
officers, agents, employees, affiliated parent and subsidiary companies, successors and
assigns, design centers, subcontractors, design professionals, engineers, inspectors and
material suppliers who provided labor, services or materials to any portion of the
Community. Declarant and the other Declarant Parties have the sole and absolute right,
in their discretion, to join any person or entity who is not a party to the arbitration
proceedings if the presence of such person or entity is required or is necessary for
complete relief to be accorded in the arbitration proceedings or if the interest or
responsibility of such person or entity in the Dispute is not insubstantial. The Parties shall
cooperate in good faith and shall diligently perform such acts as may be necessary to
ensure that all necessary and appropriate parties are included in the arbitration
proceedings. Notwithstanding anything to the contrary in this Section 12, it is understood
and agreed that the terms of this Section 12 do not apply to any disputes solely between
Declarant and TPG.
12.4.3 Administration of Proceedings. The arbitration proceedings shall be conducted by and in
accordance with the commercial arbitration rules of JAMS, or if JAMS is unable to conduct
the arbitration it shall be conducted by and in accordance with the commercial arbitration
rules of the American Arbitration Association (“Service”).
12.4.4 Statutes of Limitation. Except for procedural issues, and to the extent not inconsistent
with the Federal Act, the arbitration proceedings, the ultimate decisions of the arbitrator,
and the arbitrator shall be subject to and bound by existing Washington case and
statutory law including, but not limited to, applicable statutes of limitation and statutes
of repose. Arbitration must be initiated prior to the expiration of the applicable statutes
of limitation.
12.4.5 Selection of Arbitrator. The arbitration proceedings shall be conducted by one (1)
qualified neutral and impartial arbitrator who shall be selected in accordance with the
rules of the Service no later than thirty (30) days following the date one Party delivers to
the other Party a demand for arbitration. The term “qualified” for purposes of this Section
12.4 shall mean a retired judge who has experience with the laws governing residential
real estate development and construction or an attorney who has actively practiced law
27
in Washington for at least fifteen (15) years and who has experience with the laws
governing residential real estate development and construction.
12.4.6 Authority of Arbitrator. The arbitrator shall have the power to hear and dispose of
motions, including motions relating to provisional remedies, demurrers, motions to
dismiss, motions for judgment on the pleadings and summary judgment and/or
adjudication motions, in the same manner as a trial court judge. In addition, the arbitrator
shall have the power to summarily adjudicate issues of fact or law, including the
availability of remedies, even if the issue adjudicated does not dispose of an entire cause
of action or defense. The arbitrator shall have the power to grant provisional remedies
including preliminary injunctive relief. Prior to the selection of the arbitrator, any Party
shall have the right, but not the obligation, to petition the Superior Court of King County
for any necessary provisional remedies. However, after obtaining any provisional
remedies (pending selection of the arbitrator) the entire matter shall be referred to the
Service for all purposes and the Superior Court shall have no further jurisdiction to
monitor or enforce the provisional remedies or to make further determinations or awards
or to issue additional provisional remedies. The Service shall have the sole power to
enforce, extend, modify or vacate any such provisional remedies.
12.4.7 Discovery. All discovery shall be permitted by the arbitrator at the arbitrator's reasonable
discretion upon a showing of good cause or based on the agreement of the Parties. The
arbitrator shall oversee discovery and may enforce all discovery orders in the same
manner as any trial court judge.
12.4.8 Full Disclosure. Each Party shall make, in good faith, a full disclosure of all issues and
evidence to each other Party prior to the hearing. Any evidence or information that the
arbitrator determines was unreasonably withheld shall be inadmissible by the Party who
withheld it. The initiating Party shall be the first to disclose all of the following, in writing,
to each other Party and to the arbitrator: (i) an outline of the issues and its position on
each such issue; (ii) a list of all witnesses the Party intends to call; and (iii) copies of all
written reports and other documentary evidence, whether written or not or contributed
to by its retained experts (collectively, “Outline”). The initiating Party shall submit its
Outline to each other Party and the arbitrator within thirty (30) days of the final selection
of the arbitrator. Each responding Party shall submit its written response as directed by
the arbitrator.
12.4.9 Hearing. The arbitration shall be held in King County. The arbitration shall be conducted
as promptly as possible after giving due consideration to the complexity of the issues, the
number of parties and necessary discovery and other relevant matters. The arbitration
shall be conducted as informally as possible. Washington Rule of Evidence 408 shall apply
for the purpose of excluding offers, compromises, and settlement proposals from
evidence, unless there is agreement by all Parties as to admissibility. The arbitrator shall
be the sole judge of the admissibility of and the probative value of all evidence offered
and is authorized to provide all legally recognized remedies whether in law or equity,
except as otherwise limited in this Section 12.4. The cost of an interpreter shall be borne
by the Party requiring the services of the interpreter in order to be understood by the
arbitrator and the expenses of witnesses shall be borne by the Party producing such
witnesses.
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12.4.10 Decision. The decision of the arbitrator shall be binding on the Parties and may be entered
as a judgment in any court of the State of Washington that has jurisdiction and venue.
The arbitrator shall try all issues of both fact and law and issue a written statement of
decision which shall specify the facts and law relied upon in reaching the arbitrator’s
decision within twenty (20) days after the close of testimony.
12.4.11 Fees and Costs. Declarant Parties shall advance any fee required by the Service to initiate
the arbitration proceedings. Without limiting the generality of the foregoing, the total
cost of the arbitration proceedings, including the fee of the arbitrator, the initiation fee
advanced by Declarant Parties and other fees of the Service and any related costs and
fees incurred by the Service (such as experts and consultants retained by it), shall be
borne one-half by Claimant and one-half by Declarant Parties, regardless of the outcome.
The arbitrator shall not award attorneys’ fees to any Party and the Parties shall each be
solely responsible for their own attorneys’ fees. Nothing herein shall be construed to
modify or abrogate any duty to defend and/or indemnify a third party pursuant to the
terms of a contract between any such parties. Notwithstanding the foregoing, under all
circumstances the Parties shall be responsible for their own attorneys’ fees and expert
witness costs, subject only to reallocation by any applicable statutory cost-shifting
mechanisms. This provision does not modify any provision of any contract between
Declarant Parties and any third party requiring indemnification or establishing a different
allocation of costs between Declarant Parties and such third party.
12.5 Waiver of Class, Joint, Mass, Collective, and/or Representative Actions. Notwithstanding
anything to the contrary herein and to the fullest extent permitted by applicable law, Declarant,
the Association and each Lot Owner agree that it is in the best interest of the Parties that the
dispute resolution procedures set forth in this Section 12 be utilized as the exclusive dispute
resolution procedure, independently of any other actions (including actions brought pursuant to
alternative dispute resolution procedures) involving a Dispute with any other party or parties.
12.5.1 Association. To the greatest extent permitted by law, the Association knowingly waives
any right to participate in any form of "class", "joint," “mass,” “collective,” or
"representative" litigation (including in any "private attorney general capacity") or
dispute resolution procedures against the Declarant Parties. Declarant and the
Association agree to this Section 12.5 on the grounds that they wish to assure, in advance,
that any Disputes by or between the Association and any of the Declarant Parties will not
be combined with any Disputes by or between any Declarant Parties and any Lot Owner.
Declarant and the Association include this provision on the additional grounds that: (i) the
Common Elements are unique from other properties in the Community, and any potential
problems it may suffer will not necessarily be common to other properties; (ii) it may
provide the Association increased ability to control any Dispute involving the Common
Elements; (iii) the Association's interests will not be subordinated to the interests of other
parties who might otherwise become involved in these dispute resolution procedures; (iv)
this approach is likely to foster faster resolution of most Disputes that may arise; (v) it will
help to avoid conflicts of interest among Declarant's and the Association's
representatives; and (vi) it is intended to foster better communication between the
Association and Declarant focused on resolving the actual issues that may arise in any
Dispute between them. Notwithstanding the foregoing, the restrictions of this Section
12.5 shall not apply to actions (including actions brought pursuant to alternative dispute
29
resolution procedures) for damages in the amount of one thousand dollars ($1,000.00) or
less per action (including actions brought pursuant to alternative dispute resolution
procedures); provided however, that the Association shall be required to meet any legal
requirements for any "class", "joint," “mass,” “collective,” or "representative" litigation
or dispute resolution procedures with respect to such actions.
12.5.2 Lot Owners. To the greatest extent permitted by law, each Lot Owner, by acceptance of
fee title to a Lot, knowingly waives any right to participate in any form of "class", "joint,"
“mass,” “collective,” or "representative" litigation (including in any "private attorney
general capacity") or dispute resolution procedures against the Declarant Parties.
Declarant and each Lot Owner agree to this Section 12.5 on the grounds that they wish
to assure, in advance, that any Disputes by or between a Lot Owner and any of the
Declarant Parties will not be combined with any Disputes by or between any Declarant
Parties and any other Lot Owner. Declarant and each Lot Owner agree to include this
provision on the additional grounds that: (i) each Lot is unique from other properties in
the Community, and any potential problems it may suffer will not necessarily be common
to other properties; (ii) it may provide each Lot Owner increased ability to control any
Dispute involving the Lot; (iii) each Lot Owner's interests will not be subordinated to the
interests of other parties who might otherwise become involved in these dispute
resolution procedures; (iv) this approach is likely to foster faster resolution of most
Disputes that may arise; (v) it will help to avoid conflicts of interest among Declarant and
each Lot Owner's representatives; and (vi) it is intended to foster better communication
between each Lot Owner and Declarant and focused on resolving the actual issues that
may arise in any Dispute between them. Notwithstanding the foregoing, the restrictions
of this Section 12.5 shall not apply to actions (including actions brought pursuant to
alternative dispute resolution procedures) for damages in the amount of one thousand
dollars ($1,000.00) or less per action (including actions brought pursuant to alternative
dispute resolution procedures); provided however, that each Lot Owner shall be required
to meet any legal requirements for any "class", "joint," “mass,” “collective,” or
"representative" litigation or dispute resolution procedures with respect to such actions.
12.6 Proceedings Brought in Court. If any Owner, the Association, or any of the Declarant Parties files
a proceeding in any court to resolve any Dispute, such action will not constitute a waiver of the
right of such party or affect the right of any other party to seek arbitration of that or any other
Dispute, and the Court will, upon motion of any party to the proceeding, direct that such Dispute
be arbitrated in accordance with this Declaration, and will award reasonable costs and attorney’s
fees to a party that successfully moves to have the Dispute resolved by arbitration.
12.7 Resolution by Mediation or Negotiation. In accordance with RCW 64.90.685(2), any Parties to a
Dispute may agree at any time to resolve the Dispute by any form of binding or non-binding
alternative dispute resolution. If the Parties resolve any Dispute through negotiation or
mediation, and any such Party thereafter does not abide by the terms of the agreement, or if any
Party does not comply with an arbitration decision or award, then any other Party may file suit or
initiate administrative proceedings to enforce such agreement or decision or award without need
to comply with the provisions of this Section 12. In that event, the party taking action to enforce
the agreement or decision or award will be entitled to recover from the non-complying party (or
if more than one non-complying party, from all those parties pro rata) all costs incurred in
enforcing the agreement or decision or award, including attorney’s fees and costs.
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12.8 Waiver of Jury Trial. THE LOT OWNERS, ASSOCIATION, AND DECLARANT WAIVE ANY RIGHTS TO
JURY TRIAL FOR DISPUTES EVEN IF THE ABOVE-DESCRIBED ALTERNATIVE DISPUTE RESOLUTION
PROCEDURES AND PROVISIONS ARE OTHERWISE FOUND UNENFORCEABLE. BY DELIVERY AND
ACCEPTANCE OF A DEED TO A LOT, EACH LOT OWNER AND DECLARANT MAKE THIS WAIVER
KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY, AND ACKNOWLEDGE THAT NO ONE HAS
MADE ANY REPRESENTATION OF FACT TO INDUCE THEM TO MAKE THIS WAIVER OR IN ANY
MANNER OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT AND SUCH PARTIES FURTHER
ACKNOWLEDGE THAT THEY HAVE HAD THE OPPORTUNITY TO BE ADVISED BY INDEPENDENT
LEGAL COUNSEL IN CONNECTION WITH THIS DECLARATION AND IN MAKING THIS WAIVER.
EACH LOT OWNER, ASSOCIATION, AND THE DECLARANT ACKNOWLEDGE HAVING READ AND
UNDERSTOOD THE MEANING AND RAMIFICATIONS OF THIS JURY WAIVER, AND INTEND THIS
JURY WAIVER BE READ AS BROADLY AS POSSIBLE AND EXTEND TO ALL DISPUTES.
12.9 Involvement of Association in Individual Home Disputes. Notwithstanding anything to the
contrary in this Declaration, the Association may not sue any Person or arbitrate claims on behalf
of one or more Lot Owners with respect to any claims or issues on individual Lots or homes,
including construction and warranty claims.
12.10 Declarant Consent Required. Notwithstanding anything to the contrary in this Section 12 or
elsewhere in this Declaration, from the date hereof and during the period that is ten (10) years
following the date that Declarant no longer owns Property in the Community, this Section 12 may
not be amended, modified, or repealed without the prior written consent of the Declarant.
12.11 Unobserved Construction Defects. The Declarant, the Association and all Lot Owners agree that
if the Association or any Lot Owner alleges that any Common Element, Lot, or Lots or any
improvements thereon are subject to or alleged to be subject to a construction defect, then in
any arbitration, mediation, or other proceeding regarding such matters, there shall be no
presumption that an alleged construction defect is prevalent or consistently present in other Lots
or other portions of the Common Elements where such alleged construction defect has not been
observed.
12.12 Required Vote to Make Claim. Prior to filing a claim pursuant to the provisions in this Section 12,
the Association must obtain the vote or written consent of Owners who represent not less than
75% of the Association's voting power (excluding the voting power of the Declarant). The
foregoing is subject to any inconsistent provision of applicable law, including without limitation
any lower maximum percentage.
13. Mortgagee Protection
13.1 Information Regarding Mortgagees. Each Lot Owner shall, within 20 days of encumbering such
Member's Lot with a Security Interest in favor of a Mortgagee, and at other times upon request
of the Association, provide the Association with the name and address of the Mortgagee, a copy
of the instrument creating the Security Interest, including the loan number or other identifying
number of the Security Interest and the address of the Mortgagee for notice purposes under this
Declaration. Within 20 days after any change in the name or address of the Mortgagee, and at
other times upon request of the Association, the Lot Owner will give notice to the Association of
the changed information. The Lot Owner or Mortgagee may give notice to the Association of
change in the information provided to the Association at any time, and provide a concurrent copy
of the notice to the Mortgagee or Lot Owner, as the case may be. The address of the Mortgagee
provided to the Association under this Section 13.1 will be the Mortgagee’s address for notice
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purposes under this Declaration. To the extent of any inconsistency between the Mortgagee’s
address provided by the Mortgagee and the Mortgagee’s address provided by the Lot Owner, the
address provided by the Mortgagee will prevail.
13.2 Notices. The Association will provide to any First Mortgagee that has requested the same or the
address of whom has been provided to the Association as provided in Section 13.1, written notice
of (i) casualty or condemnation affecting any Common Elements or the Lot on which the
Mortgagee holds a security interest, (ii) the Lot Owner’s failure for more than 30 days to meet any
obligation under the Governing Documents, (iii) lapse of insurance, and (iv) any proposed action
by the Association or Board that requires the consent of a specified percentage of mortgagees.
Any First Mortgagee that has requested the same will be entitled to receive notice of all meetings
of the Association on the same basis as notice to Lot Owners, and be permitted to designate a
representative to attend all such meetings.
13.3 Effect of Declaration Amendments. No amendment to this Declaration shall have any effect on
any rights expressly conferred on First Mortgagees in this Declaration with respect to any First
Mortgage unless the amendment has been consented to in writing by the First Mortgagee. Any
provisions of this Declaration conferring rights upon First Mortgagees that are inconsistent with
any other provisions of this Declaration shall control over such inconsistent provisions, but only
to the extent those provisions are consistent with the Act, including without limitation RCW
64.90.295(1).
13.4 Records. Mortgagees will have the right to examine and copy records required to be maintained
by the Association to the extent provided in RCW 64.90.495. First Mortgagees will have the same
right to examine and copy records of the Association and to receive financial statements of the
Association as are conferred upon Lot Owners by RCW 64.90.495 and this Declaration or the
Governing Documents.
13.5 Lien Priority. The lien of the deed of trust, mortgage, or other security interest in a Lot held by a
Mortgagee shall enjoy priority over the statutory lien on the Lot for unpaid Assessments under
RCW 64.90.485, to the extent provided and subject to the limitations in RCW 64.90.485. A First
Mortgagee that obtains title to a Lot by judicial or non-judicial foreclosure or by deed in lieu of
foreclosure will take title to the Lot free and clear of any claims for unpaid Assessments against
the Lot that accrued prior to date of acquisition of title by the First Mortgagee. The Association
may elect to treat any such unpaid Assessments as a common expense of the Association and
assessed against all Lots (including the subject Lot) by Allocated Interest. In the event of such a
reallocation, the Association may continue to treat the unpaid Assessments as a personal
obligation of the owner of the subject Lot who was indebted to the First Mortgagee.
13.6 HUD or VA Approval. During the period of Declarant Control, the following actions shall require
the prior approval of HUD or VA if, at the time any such action is taken, HUD has insurance or VA
has any guarantees on any First Mortgages, and HUD or VA require such approval: (a) amendment
of this Declaration, except (i) amendments for the purpose of complying with the requirements,
standards, or guidelines of GNMA, FNMA, FHLMC, HUD, or VA, or similar governmental or non-
governmental agency or entity, (ii) corrective amendments or supplements under RCW
64.90.285(10), or (iii) amendments in connection with the exercise of any Development Right or
Special Declarant Right; (b) termination of the Community; or (c) merger or consolidation of the
Association, except as provided in Section 10.1.6.
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13.7 Rights under Act. The provisions of this Section 13 are in addition to any rights or benefits
conferred on Mortgagees by the Act.
14. General
14.1 Notices. Notices to Lot Owners, the Association, the Board, Board members, or Declarant under
this Declaration will be governed by RCW 64.90.515. The Association will designate in the
Governing Documents an address, location, or system to which notices may be electronically
transmitted.
14.2 Amendments. This Declaration may be amended or supplemented in the manner provided in
RCW 64.90.285, and as provided in Section 9.1, subject to Section 15 below.
14.3 Certain Terms. In this Declaration, (i) “include” “including” and related terms will be interpreted
to include “without limitation;” and (ii) “will” has the same meaning as “shall.”
14.4 Headings; Sections; Recitals and Exhibits. Section and subsection headings in this Declaration are
for convenience of reference only and do not define or limit the scope or intent of this Declaration
or any of its provisions. References to “Sections” without reference to another document or
instrument means Sections of this Declaration.
14.5 Act Amended or Repealed. In the event that the Act is amended, all RCW Section references in
this Declaration shall refer to such Section as amended or, if such Section is moved or replaced,
then each reference shall refer to such different or replaced Section. In the event the Act is
repealed and replaced with a new act governing plat communities, then Section references in this
Declaration shall refer to the Act in its form immediately prior to its repeal.
Any Recitals in this Declaration and any Exhibits attached to this Declaration are incorporated into
and made a part of this Declaration.
15. TPG and Declarant
In the event of any conflict between this Section 15 and any other provision of this Declaration,
the terms of this Section 15 shall control.
15.1 Assignments of Declarant Rights. Following the original Assignment of Declarant’s Rights in
accordance with Section 1.7, The Declarant’s rights shall only be assigned by written, recorded
instrument expressly assigning those rights. So long as TPG owns any Lot, any assignment of the
Declarant’s rights under this Declaration shall require the prior written consent of TPG. Any
purported assignment without such consent shall be void and of no force and effect.
Notwithstanding the foregoing, if the Option Agreement (as defined in Section 1.6) terminates
prior to the purchase by TNHC from TPG of all of the Lots, as evidenced by the recording of a
Notice of Termination of Option, then, at any time thereafter, TPG shall, upon recordation of a
Notice of Acquisition of Declarant Rights, automatically become a Declarant under this
Declaration, in which event all references to “Declarant” shall thereafter mean TPG as to the Lots
then owned by TPG and TNHC shall no longer be Declarant as to the Lots then owned by TPG. TPG
shall not be liable to any Lot Owner or any other person for any act or omission of Declarant,
including without limitation Declarant’s failure to pay any amounts owing or to be paid or
reserved for under this Declaration or as may otherwise be required by applicable law, or to
perform any act or obligation required to be performed by Declarant hereunder or as may
otherwise be required by statute or at law, arising prior to the date TPG succeeds to Declarant’s
rights under this Declaration, and TPG shall assume the obligations under this Declaration only for
33
obligations arising or to be performed with respect to the Lots owned by TPG from and after the
date TPG succeeds to Declarant’s rights. TPG is hereby released and discharged from any and all
obligations under this Declaration accruing prior to the date TPG succeeds to Declarant’s rights or
with respect to obligations relating to any Lots purchased from TPG.
15.2 Co-Declarants. If TPG becomes a Declarant as provided for in Section 15.1 at a time when TNHC
owns Lots, then TPG and TNHC (and their respective assignees) shall be co-Declarants until such
time as either (a) TNHC (or any party to whom TNHC may assign its Declarant rights) no longer
owns any Lots, after which, if TPG (or any party to whom TPG may assign its Declarant rights)
owns any Lots, then TPG (or its successor) shall be the sole Declarant, or (b) TPG (or any party to
whom TPG may assign its Declarant rights) no longer owns any Lot, after which, if TNHC (or any
party to whom TNHC may assign its Declarant rights) owns any Lots, TNHC (or its successor) shall
be the sole Declarant. Notwithstanding anything to the contrary contained in this Declaration, for
so long as TPG and TNHC (and/or their respective assigns) are co-Declarants, then the following
provisions shall apply:
15.2.1 The annexation of any additional property under this Declaration and/or the removal of
any of the Property from the effect of the Declaration shall require the written consent
of both co-Declarants;
15.2.2 Any adoption, repeal, or amendment of the rules and regulations of the Association shall
require the written consent of both co-Declarants;
15.2.3 The right to appoint or remove members of the Board and the Improvement Committee
shall be exercised by the co-Declarant owning a majority of the Lots then owned by all co-
Declarants (e.g., if at the time of determination TNHC owns more than 50% of all of the
Lots then owned by the co-Declarants, then TNHC shall have the right to appoint and
remove members of the Board and Improvement Committee, but if and when TPG owns
more than 50% of all of the Lots then owned by the co-Declarants, then TPG shall have
the right to appoint and remove members of the Board and the Improvement
Committee). If each co-Declarant owns the same number of Lots, then, any such right
shall be exercised with mutual consent of both co-Declarants. At any time in which both
TPG and TNHC are co-Declarants, the co-Declarant owning the lesser number of Lots shall
be entitled to appoint one representative to the Board and Improvement Committee;
15.2.4 Any exercise of any rights of Declarant to amend the Declaration unilaterally shall require
the written consent of both co-Declarants, which consent shall not be unreasonably
withheld or delayed by either Declarant, unless such amendment affects only Lots then
owned by such Declarant;
15.2.5 Except as otherwise provided above, each Declarant shall be entitled to exercise any
Declarant’s rights applicable to and affecting only one or more specific Lots owned by
such Declarant; and
15.2.6 Any exercise of Declarant’s rights to approve the Association’s dedication, transfer, or
encumbrance of any Common Elements shall require the written consent of both co-
Declarants.
15.3 TPG’s Consent Required While Option is in Effect. Notwithstanding anything contained in the
Declaration, and as long as the Option Agreement is in full force and effect, the following shall
apply in addition to the limitation and restrictions contained in the Option Agreement:
34
15.3.1 Any document approved by Developer that will be recorded against any portion of the
Property that includes Lots owned by TPG (including, without limitation, any plat or replat
and the addition of any property to the provisions of the Declaration) shall require the
prior written consent of TPG. Any such document recorded without TPG's prior consent
shall be deemed void and of no force and effect unless subsequently approved by a
written consent signed by TPG and recorded.
15.3.2 No Assessments shall be levied against Lots or any other Property owned by TPG which
remain subject to the Option Agreement.
15.3.3 TNHC shall obtain TPG’s written consent prior to appointing any person other than an
employee of TNHC to the Board, or to removing any member of the Board and replacing
such member with any person other than an employee of TNHC.
15.3.4 So long as TPG owns any Lot or other portion of the Property, any amendment to the
Declaration, articles of incorporation, or bylaws, including but not limited to an
amendment to subject property to the provisions of the Declaration, shall require the
prior written approval of TPG, which approval shall not be unreasonably withheld of
delayed. Any purported amendment without such approval shall be deemed void and of
no force and effect unless subsequently approved by a written consent signed by TPG
and, if the Declaration, such consent must also be recorded.
15.3.5 Neither TNHC nor its successors or assigns shall, without the prior written consent of TPG,
have the right to exercise any of the “Declarant” rights under this Declaration in any
manner which will have a material or adverse impact on TPG or the Lots or other portion
of the Property owned by TPG.
15.4 Enforcement. So long as TPG owns any Lot or other portion of the Property, TPG shall have the
right to enforce any of the provisions of this Declaration, articles of incorporation, or bylaws that
are intended to be for the benefit of TPG. None of the provisions of this Declaration shall obligate
or be construed to obligate Declarant, or TPG, or their respective agents, representatives or
employees, to undertake any affirmative action to enforce the provisions of this Declaration, or
to undertake any remedial or corrective action with respect to any actual or asserted violation
hereof.
15.5 Failure to Obtain TPG Approval. Notwithstanding any other provision, any document which
requires TPG's consent hereunder, recorded without TPG’s consent shall be deemed void and of
no force and effect unless subsequently approved by a written consent signed by TPG and
recorded.
[continued next page]
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EXECUTED as of the date first written on Page 1 of this Declaration.
DECLARANT: TNHC WASHINGTON LLC
By
Name
Title
TPG: TPG AG EHC III (NWHM) MULTI STATE 3, LLC
By
Name
Title
36
STATE OF WASHINGTON )
) ss.
COUNTY OF __________ )
I certify that I know or have satisfactory evidence that _______________________________ is
the person who appeared before me, and said person acknowledged that said person signed this
instrument, on oath stated that said person was authorized to execute the instrument and acknowledged
it as the ___________________ of TNHC WASHINGTON LLC, a Delaware limited liability company, to be
the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated this _____ day of __________, 20__.
(print or type name)
NOTARY PUBLIC in and for the State of Washington,
residing at
My Commission expires:
STATE OF __________ )
) ss.
COUNTY OF __________ )
I certify that I know or have satisfactory evidence that _______________________________ is
the person who appeared before me, and said person acknowledged that said person signed this
instrument, on oath stated that said person was authorized to execute the instrument and acknowledged
it as the ___________________ of TPG AG EHC III (NWHM) MULTI STATE 3, LLC, a Delaware limited liability
company, to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated this _____ day of __________, 20__.
(print or type name)
NOTARY PUBLIC in and for the State of Washington,
residing at
My Commission expires:
Schedule 1, Page 1
SCHEDULE 1
Community-Specific Information for Sunset Highlands Townhomes
LEGAL DESCRIPTION OF PROPERTY:
LOT 2, CITY OF RENTON LOT LINE ADJUSTMENT NO. LUA22-000265, RECORDED AUGUST 25, 2022 UNDER
RECORDING NO. 20220825900001, IN KING COUNTY, WASHINGTON.
LOT 1 OF CITY OF RENTON LOT LINE REVISION NO. LLA 003-82, RECORDED APRIL 21, 1982 UNDER
RECORDING NO. 8204219003, IN KING COUNTY, WASHINGTON.
LOT 2, CITY OF RENTON LOT LINE ADJUSTMENT NO. LUA22-000265, RECORDED AUGUST 25, 2022 UNDER
RECORDING NO. 20220825900001, IN KING COUNTY WASHINGTON.
NUMBER OF UNITS IN COMMUNITY 90
MAXIMUM NUMBER OF ADDITIONAL UNITS
THAT MAY BE ADDED TO COMMUNITY
None.
ALLOCATED INTEREST OF EACH UNIT Each Lot holds 1/90 of the total interest in the
Community, and one vote is assigned to each Lot.
RESTRICTIONS ON ALIENATION OF UNITS
IMPOSED BY THIS DECLARATION
TRACTS AND LIMITED COMMON ELEMENTS:
None.
Description Ownership & Maintenance Obligations
Tract A – Open Space Tract
Each Lot Owner holds an equal and
undivided interest in this Tract. The
Association is responsible for
maintenance, but with the Owners of
Lots 1-90 equally responsible for the
maintenance of these Tracts if the
Association fails to do so.
Tracts B, C and D – Open Space and Private
Storm Drainage Tracts
Each Lot Owner holds an equal and
undivided interest in these Tracts. The
Association is responsible for
maintenance, but with the Owners of
Lots 1-90 equally responsible for the
maintenance of these Tracts if the
Association fails to do so.
Tracts E, G, H, J, K, N, P, R, S and T – Open
Space Tracts
Each Lot Owner holds an equal and
undivided interest in these Tracts. The
UPDATE PER SOLERA PLAT RECORDED
UNDER 202512240000495
Schedule 1, Page 2
Association is responsible for
maintenance, but with the Owners of
Lots 1-90 equally responsible for the
maintenance of these Tracts if the
Association fails to do so.
Tracts F, L and Q – Private Storm Drainage
Tracts
Each Lot Owner holds an equal and
undivided interest in these Tracts. The
Association is responsible for
maintenance, but with the Owners of
Lots 1-90 equally responsible for the
maintenance of these Tracts if the
Association fails to do so.
Tract M – Open Space and Private Storm
Drainage Tract
Each Lot Owner holds an equal and
undivided interest in this Tract. The
Association is responsible for
maintenance, but with the Owners of
Lots 1-90 equally responsible for the
maintenance of this Tract if the
Association fails to do so.
Tracts V and W – Private Shared Access
Tracts
Each Lot Owner holds an equal and
undivided interest in these Tracts. The
Association is responsible for
maintenance, but with the Owners of
Lots 1-90 equally responsible for the
maintenance of these Tracts if the
Association fails to do so.
Alley A, B, D, E, F, G, H Association, but with the Owners of Lots
1-90 equally responsible for the
maintenance of these Tracts if the
Association fails to do so
There are no Limited Common Elements in the Community.
CRITICAL OR SENSITIVE AREAS:
None.
add tract "u"
Schedule 1, Page 3
CERTAIN EASEMENTS AND MAINTENANCE RESPONSIBILITIES:
The Plat describes various easements affecting certain Lots and Tracts. Certain easements allocate access
rights and maintenance responsibilities among the Lot Owners, the Association, and others. The full
details of such easements are set forth on the Plat, but are summarized below.
Purpose Affected Lots/Tracts
Public Utility Easement granted to the City of Renton for
constructing, reconstructing, installing, repairing, replacing,
enlarging, operating and maintaining utilities and utility
pipelines.
Tracts A, B, C, D, E, G, H, J, K, N, P, R, S, T,
F, L, Q, M, V and W
Easements granted to the City of Renton, Puget Sound
Energy, Inc., CenturyLink Telephone Company, Qwest
Communications International, Inc., Comcast Cable
Communications, Inc., and other utility providers and their
respective successors and assigns, under and upon the
exterior ten (10) feet of all lots and tracts lying parallel
with and adjoining the proposed and existing street
frontages in which to install, lay, construct, operate,
maintain, repair, replace, enlarge underground pipes,
conduits, cables and wires with all necessary or convenient
underground or ground-mounted appurtenances thereto,
for the purposes of serving this subdivision and other
properties with electric, gas, telephone, television, water,
sanitary sewer, public and private storm drainage and
other utility service.
Tracts A, E, G, H, J, K, N, P, R, S, T, F, L, Q,
M, V and W
Easement granted to Renton Regional Fire Authority, over
and across Tracts A through Q for the purposes of
emergency access.
Tracts A, B, C, D, E, G, H, J, K, N, P, R, S, T,
F, L, Q, M, V and W
Easement granted to City of Renton, over, under, and
across Tracts A through Q for the purposes of utility and
emergency access.
Tracts A, B, C, D, E, G, H, J, K, N, P, R, S,
T, F, L, Q, M, V and W
Public access easement over Tracts V and W Tracts A, B, C, D, E, G, H, J, K, N, P, R, S,
T, M, V and W
Private utility easement over Tracts V and W Tracts A, B, C, D, E, G, H, J, K, N, P, R, S,
T, F, L, Q, M, V and W
OTHER:
Each Lot Owner of Lots 34-66 and 72-90, and Tracts "A", "E", "F", "G", "H", "J", "K", "L", "M", "N", "O", "P",
"Q", "R", "S" AND "T" shall be responsible for keeping the sidewalk abutting the subject property clean
and litter free. Each Lot Owner shall be responsible for the maintenance of vegetation with the abutting
landscape strip, excluding the street trees and storm drainage facilities (such as bioretention planters)
which are owned by the City of Renton.
update per redlines on plat
Schedule 2, Page 1
SCHEDULE 2
Defined Terms
In this Declaration, the terms below have the indicated meanings. Capitalized terms that are not defined
in this Schedule 2 or elsewhere in this Declaration have the meanings assigned in the Act.
“Allocated Interests” means (a) the fraction or percentage of the common expenses of the
Association allocated to each Lot, as provided in Section 8.1 and Schedule 1, and (b) one vote per
Lot on all matters submitted by the Association, or subject under this Declaration to a vote of the
Lot Owners; provided, however, that no votes will be allocated to Lots owned by the Association.
“Association” means Sunset Highlands Townhomes Association, a Washington nonprofit
corporation. The Association is the Association for the Community under RCW 64.90.010(4).
“Association Maintenance Items” means the improvements on or within Lots for which the
Association is responsible for the maintenance, repair and replacement, as set forth in this
Declaration or by the Declarant or the Board.
“Community-Wide Standard” means the standard of conduct, maintenance or other activity
generally prevailing in the Community. The Community-Wide Standard will have objective and
subjective elements. The Community-Wide Standard will be established initially by Declarant. It
will evolve as development of the Community progresses and as the needs of the Community
change.
“Critical Areas” means parcels in the Community designated in the Plat as “critical” or sensitive”
areas, or similar designations. Critical Areas include any areas designated as Critical Areas on
Schedule 1.
“Declarant” means TNHC WASHINGTON LLC, a Delaware limited liability company, its successors
and assigns, or any person or entity to whom all of Declarant’s rights reserved hereunder are
assigned in accordance with the provisions hereof. The Declarant’s rights shall only be assigned in
accordance with Section 15.1 of this Declaration.
“Declarant Control” means the Declarant’s rights to appoint and remove officers and members
of the Board of the Association, and to veto or approve proposed action of the Board or
Association, as provided in Section 6.10, Section 15 and RCW 64.90.415(1)(a).
“Design Guidelines” or “Guidelines” means the architectural, design, and construction standards
and guidelines for the design and construction of improvements on Lots and modifications of
those improvements, and accompanying review procedures, all as amended from time to time.
“Development Rights” means those rights reserved to the Declarant under Section 9 of this
Declaration, which rights are set forth in RCW 64.90.010(20)(a)-(e).
“First Mortgagee” means a Mortgagee holding a first-lien security interest on a Lot.
“Limited Common Elements” means any portions of the Common Elements allocated for the
exclusive use of one or more (but not all) of the Lot Owners, as set forth on Schedule 1, as they
may be created, amended or supplemented from time to time.
Schedule 2, Page 2
“Authority” means any governmental authority having jurisdiction over the Community for
matters addressed by this Declaration or the Act. An Authority may include the state of
Washington, a county, a city, or a local utility district.
“TPG” is defined in Section 1.6.
“Mortgagee” means the holder of a Security Interest, as defined in the Act, on a Lot.
“Party Wall” means any of the walls built on the boundary lines separating any of the Lots. When
used in reference to particular Lots, it refers to the Party Wall on the boundary line separating
these Lots. A Party Wall includes all components of and within that wall including framing, joists,
insulation, soundproofing, pipes, lines, wires, conduits, other utility infrastructure, and other
components as originally constructed; all components below that wall including the footings and
other components as originally constructed and the supporting ground; all components above the
wall including the rafters, the roof, the parapet cap and other components as originally
constructed; and all components on the sides or exteriors of that wall including siding, trim, and
other components as originally constructed.
“Party Wall Adjoining Lots” means each set of Lots that share a Party Wall. When used in
reference to a particular Lot Owner, it refers to the Party Wall Adjoining Lot owned by that Lot
Owner. If a Lot has two or more Party Walls, the term refers to the two Lots that share a particular
Party Wall.
“Permits and Approvals” means the Permits and Approvals, approvals, entitlements, preliminary
plat approval conditions, and conditions on the face of the Plat, related to the subdivision of the
Property, creation, ownership, and operation of the Community, and development and
construction of improvements in the Community.
“Improvement Committee” means the Improvement Committee established in accordance with
and described in this Declaration.
“Private Road” means a shared access facility, alley, or ingress/egress easement for vehicular
access shown on the Plat and dedicated to the use by the owners of some or all Lots for vehicular
access to such Lots, but excluding any roads or easements granted to an Authority, the public or
to any property not within the Plat.
“Private Yard” means an outdoor portion of a Lot located in the rear of a Lot that is designated
for the exclusive use of the Lot Owner of such Lot and has a fence that delineates and separates
the Private Yard area from adjacent areas, together with all irrigation located within the Private
Yard. Some Buildings in the Community may contain Lots with Private Yards and some Buildings
may contain Lots without Private Yards.
“Property” is defined in Section 1.1.
“Protected Landscaping” means the trees, shrubs and landscaping, if any, that are required by
the Permits and Approvals to be planted or preserved and maintained in the Community, and
other trees that have been planted by the Declarant on any Lot or Common Element. Protected
Landscaping includes the landscape buffers planted by Declarant on certain Lots as required by
the Authorities.
Schedule 2, Page 3
“Restrictions on Use” means the Restrictions on Use in Section 3 governing the use of real and
personal property and the conduct of Lot Owners and other Persons in the Community, as they
may be amended, supplemented, or repealed from time to time. Restrictions on Use are Rules
within the meaning of the Act.
“Review Authority” is defined in Section 4.4.
“Lot” or “Lots” means “Lot” or “Lots” as defined in the Act. “Lot” includes the Lot Owner’s interest
in any private access or utilities tract, sole or joint ownership of which is conveyed to the Lot
Owner.
“Lot Owner” means “Lot Owner” as defined in the Act.
Schedule 3, Page 1
SCHEDULE 3
Insurance Matters
1. Insurance. The Association shall maintain in its own name the insurance required under the Act,
including RCW 64.90.470, to the extent reasonably available and subject to reasonable
deductibles. The premiums for insurance maintained by the Association shall be included in the
common expenses of the Association. To the extent required by the Act, and subject to Section 2
below, such insurance shall include:
1.1 Property insurance on the Common Elements and property insurance on the exterior and
structural portions of the Lots, including the roof, structural components, exterior bearing walls,
patios, exterior fixtures and exterior equipment, which insurance is sometimes referred to as
walls-out coverage. The property insurance, after application of any deductibles, must be not less
than 100% of the actual cash value of the insured property at the time the insurance is purchased
and at each renewal date, exclusive of land, excavations, foundations, and other items normally
excluded from property policies. Such property insurance shall not include coverage for any
interior improvements, including interior surfaces and flooring, interior fixtures, interior
equipment, cabinets, appliances, plumbing fixtures, electrical fixtures, furniture, art, and other
personal property of the Lot Owners.
1.2 Commercial general liability insurance, including medical payments insurance, in an amount
determined by the Board, but not less than $1,000,000, covering all occurrences commonly
insured against for bodily injury and property damage arising out of or in connection with the use,
ownership, or maintenance of the Common Elements and the portions of Lots for which the
Association has maintenance responsibilities.
1.3 Fidelity insurance, with coverage to protect against dishonest acts on the part of officers,
directors, employees or the Association and workers’ compensation insurance, in each case as
the Board deems advisable and/or as required by applicable law.
1.4 Casualty, flood and liability insurance as required for plat communities under GNMA, FNMA,
FHLMC, HUD, or VA, or similar governmental or non-governmental agencies, except to the extent
such coverage is not reasonably available or has been waived in writing by such agency.
1.5 Such other insurance as the Board deems advisable.
2. Insurance Not Available; Determination of Coverage. If the insurance described in Section 1 is
not reasonably available, or is modified, canceled or not renewed, the Board must promptly cause
notice of that fact to be given to all Lot Owners. The Association may carry any other insurance it
considers appropriate to protect the Association or the Lot Owners. In addition, the Board may
determine that certain insurance coverage listed in Section 1, including property insurance for
the Lots, is not required by the Act and in such case may elect not to obtain such coverage on
behalf of Lot Owners.
3. Required Provisions. Insurance policies carried pursuant to this Schedule 3 shall, to the extent
reasonably available (i) provide that each Lot Owner is an insured person under the policy with
respect to liability arising out of the Lot Owner’s interest in the Common Elements, its Lot or
membership in the Association; (ii) provide that the insurer waives its right to subrogation under
the policy against the Association, any Lot Owner, any Lot Owner’s tenant, guest, invitee,
Schedule 3, Page 2
occupant, employee or any agent of the foregoing; (iii) provide that any act or omission by a Lot
Owner, unless acting within the Lot Owner's scope of authority on behalf of the Association, does
not void the policy and is not a condition to recovery under the policy; (iv) provide that if, at the
time of a loss under the policy, there is other insurance in the name of a Lot Owner covering the
same risk covered by the policy, the Association's policy provides primary insurance; (v) provide
a standard mortgagee clause or equivalent endorsement; (vi) provide that the policy cannot be
cancelled or substantially modified without 10 days’ prior written notice to the Association; and
(vii) contain, if available, inflation guard endorsements.
4. Authority. The Association, on behalf of the Lot Owners, shall have the authority to purchase and
maintain the insurance required to be obtained by the Association under this Schedule 3, and to
negotiate, collect and otherwise handle all insurance claims and disposition of insurance
proceeds.
5. Insurance Proceeds. Any loss covered by the property insurance policy under this Schedule 3
must be adjusted with the Association, but the insurance proceeds for that loss are payable to
any insurance trustee designated for that purpose, or otherwise to the Association, and not to
any Mortgagee. The insurance trustee or the Association must hold any insurance proceeds in
trust for the Association, Lot Owners, and lienholders as their interests may appear, and insurance
proceeds shall be segregated from other funds of the Association. The proceeds must be
disbursed first for the repair or replacement of the damaged property, and the Association, Lot
Owners, and lienholders are not entitled to receive payment of any portion of the proceeds unless
there is a surplus of proceeds after the property has been completely repaired or replaced, or the
Community is terminated.
6. Certificates. An insurer that has issued an insurance policy under this Schedule 3 must issue
certificates or memoranda of insurance to the Association and, upon written request, to any Lot
Owner or a Mortgagee. The insurer issuing the policy may not modify the amount or the extent
of the coverage of the policy or cancel or refuse to renew the policy unless the insurer has
complied with all applicable provisions of RCW 48.18 pertaining to the cancellation or nonrenewal
of contracts of insurance. The insurer may not modify the amount or the extent of the coverage
of the policy or cancel or refuse to renew the policy without complying with RCW 64.90.470.
7. Sale of a Lot. Promptly upon conveyance of a Lot, the new Lot Owner shall notify the Association
of the date of the conveyance and the Lot Owner’s name and address. The Association shall notify
each insurance company that has issued an insurance policy to the Association for the benefit of
the Lot Owners and request that the new Lot Owner be made a named insured under such policy.
8. Lot Owner’s Additional Insurance. Each Lot Owner, at its expense, shall obtain additional
property insurance for the interior portions of its Lot, which insurance is generally known as an
HO6 policy, liability insurance and any additional coverage as is typically maintained by owners of
similar homes. However, no Lot Owner shall maintain insurance coverage in any manner that
would decrease the amount which the Board, or any trustee for the Board, will realize under any
insurance which the Board may have in force with respect to the Common Elements or Lots at
any time. If requested by the Board, each Lot Owner shall provide a Certificate of Insurance to
the Board evidencing the coverage required by this Section within 30 days after purchasing such
insurance. At any time, the Association may elect to assume responsibility for obtaining certain
insurance coverage for Lot Owners, including property insurance for both the exterior and interior
Schedule 3, Page 3
portions of the Lots, in which case the premiums for any such Association insurance will be
included in the common expenses of the Association. In addition, at any time, the Board may
establish requirements for such individual Lot Owner policies, including minimum amounts and
types of coverage.
9. Damage or Destruction.
9.1 Board Determination. In the event of damage or destruction to the Common Elements or to
portions of Lots that are insured by the Association, the Board shall promptly make the following
determinations: (i) the nature and extent of the damage and an inventory of the improvements
and property directly affected by the damage; (ii) an estimate of the cost to repair the damage,
which if reasonably practicable, will be based upon one or more bids from responsible
contractors; (iii) the anticipated insurance proceeds, if any, to be available from insurance
covering the loss; (iv) whether any deductible is applicable; and (iv) the amount, if any, that the
estimated costs of repair exceeds the anticipated insurance proceeds and the amount of the
assessment to applicable Lot Owners if such excess is paid as a common expense or a special
assessment, as further described in Section 11 below.
9.2 Notice of Damage. The Board shall promptly provide each Lot Owner with an interest in the
damaged Lot(s) with a written notice summarizing the initial Board determinations made under
Section 9.1.
10. Restoration.
10.1 Duty to Restore. Any portion of the Community for which insurance is required under RCW
64.90.470 or this Declaration that is damaged or destroyed must be repaired or replaced promptly
by the Association unless expressly exempted under RCW 64.90.470(8) or otherwise under the
Act. The Association shall use the available insurance proceeds to pay for the actual cost of repair
and restoration. Any excess cost shall be a common expense or a specially allocated assessment
as determined by the Board. Any restoration or repair shall be substantially in accordance with
this Declaration, the Community-Wide Standard, the Permits and applicable law.
10.2 Authority of the Board. The Board shall have the authority to employ architects, contractors,
attorneys and other professionals as reasonably necessary to repair and restore the damaged
improvements.
11. Allocation of Costs for Uninsured Damage or Destruction. Liability for any deductible and
uninsured costs shall be as follows:
11.1 Where damage results from the negligence or misconduct of a Lot Owner, that Lot Owner’s
tenant, guest, invitee, occupant, employee, agent or household pet (including any damage from
the failure to maintain, repair or replace any item for which the Lot Owner has the maintenance
obligation), the Lot Owner is responsible for such costs, subject to the notice requirements
described in RCW 64.90.480.
11.2 Where the damage is limited solely to a Lot Owner’s Lot, that Lot Owner is responsible for such
costs, unless another Lot Owner is responsible for such costs in accordance with Section 11.1.
11.3 Unless another Lot Owner or Lot Owners is responsible under Section 11.1 or Section 11.2, where
the damage is to more than one Lot, or to at least one Lot and the Common Elements,
responsibility for such costs shall be pro-rated among the Lot Owners, or between the Association
Schedule 3, Page 4
and any involved Lot Owner, in proportion to the relative cost to repair the damage to the
Common Elements and the affected Lots. Determination as to the relative cost to repair the
damage may be made by the Board based on a reasonable estimate for such repairs obtained by
the Board concerning the damage suffered by the affected parties.
11.4 Costs for which a Lot Owner is responsible under this Section 11 shall be specially charged and
assessed against the Lot or Lots involved and shall be collectable as assessments may be collected
under this Declaration or at law.
12. Emergency Work. The Board has the authority to perform any work to the Lots or the Comment
Elements that the Board deems reasonably necessary to avoid further damage, destruction or
substantial diminution in value to the improvements and to reasonably protect the Lot Owners
from liability arising out of the condition of the property.
Schedule 4, Page 1
SCHEDULE 4
Maintenance and Financial Responsibility Matrix
As described in this Declaration, the responsibility for managing the cleaning, maintenance, repair and
replacement of the Lots and improvements thereon is intended to be allocated among Lot Owners and
the Association, which allocation may be adjusted in accordance with Section 5.1.1, in order to achieve
efficiencies, in recognition of the shared nature of certain improvements and to ensure the improvements
within the Community are maintained in working order and consistent with the Community-Wide
Standard and applicable law.
As described in this Declaration, expenses associated with the maintenance, repair and replacement of
Lots shall be paid by Lot Owners directly, or paid by the Association and assessed to Lot Owners as
common expenses or specially allocated expenses, as applicable.
Improvement Responsibility for cleaning
and maintaining
appearance in a neat and
orderly manner and
managing the maintenance,
repair and replacement, as
applicable
(1) Interior improvements of a residence, (i.e., all betterments,
fixtures, equipment, appliances, and appurtenances therein including,
without limitation, all plumbing fixtures (including pipes, hoses, drains,
toilets, showers, tubs, dishwashers, faucets and garbage disposals),
water heaters, hot water tanks, exhaust fans and vents, electrical
fixtures, lighting fixtures and bulbs, and appliances, gas fixtures and
appliances (except gas lines which are the Association’s obligation to
maintain), interior paint, interior components of doors and all other
interior components of a residence), (2) the window screens but not
the windows or exterior window frames, and (3) heating and cooling
equipment including the mini-split head(s) located within the
residence and the condenser located outside the residence, but not
the refrigerant lines to the condenser (which are maintained by the
Association). If any of the foregoing constitutes Party Wall Work or is
within exterior walls or attic space, the prior approval of the
Association under Section 4 shall be required.
Lot Owner
The following exterior elements of a residence: Roofs, siding, trim, or
other exterior coverings, windows, caulking and exterior paint or stain,
gutters and downspouts, flashing, heat tape and other components of
the building enclosure/envelope
Association
Landscaping and irrigation (if any installed by Declarant)
Association
Maintenance and repair of driveways, paths and walks on a Lot and
meters for electricity, gas, and water located on a Lot
Lot Owner
Schedule 4, Page 2
Meters for common area lighting located on a Lot or on a residence on
a Lot
Association
Snow and ice removal in the Common Elements Association
Underground water and sewer utility lines serving the residence on a
Lot from the public right of way or private alley to the residence, or
gas and power lines from the meter to the residence on a Lot
Lot Owner
All private underground storm conveyance lines and inlets whether on
a Lot or within the Common Elements
Association
Trash and recycling enclosures
Lot Owner
Cluster Box Units Association
Other improvements located within the Common Elements
Association