Loading...
HomeMy WebLinkAboutRC 20050805001685 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: 11 1111 City Clerk's Office City of Renton 20050805001685 1055 South Grady Way CITY OF RENTON COV 68.00 Renton, WA 98055 PAGE001 OF 03708/08/2005 13:54 KING COUNTY, WA Legal Description (abbreviated): A portion of the Northwest Quarter and Southwest Quarter of Section 30, Township 23 North, Range 5E, W.M., City of Renton, County of King, State of Washington. Complete Description is on Exhibit A of this document. Assessor's Tax Parcel No.: 1253810130 and 1253810140 DECLARATION OF COVENANTS, CONDITIONS,RESTRICTIONS, EASEMENTS AND RESERVATIONS THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS, EASEMENTS AND RESERVATIONS (this "Declaration") is made this Z&=� day of July, 2005 by OAKESDALE COMMERCE CENTER, LLC, a Delaware Limited Liability Company("Declarant"), with respect to the following: RECITALS: A. Declarant i s the fee owner o f certain real property 1 ocated in the City o f Renton, County of King, State of Washington as more particularly described in Exhibit A attached hereto and made a part hereof("Covered Property"). Declarant hereby imposes all of the terms and conditions of this Declaration upon the Covered Property. B. Declarant deems it desirable to establish certain covenants, conditions, restrictions, r eservations and easements upon the C overed Property regarding reciprocal access and shared use of storm drainage facilities, utilities, roadways and wetlands, all for the purpose of maintaining, enhancing and protecting the value, desirability and 005 —0I(3 3938/010/168862.4 -1- 1 attractiveness of the Covered Property as well as enhancing the quality of improvements within the Covered Property. C. Declarant will hereafter hold and convey title to all of the Covered Property subject to certain protective covenants, conditions, restrictions, and easements set forth below. NOW, THEREFORE, Declarant hereby covenants and declares that all of its interests, as such interests may from time to time appear in and to the Covered Property, shall be held and conveyed, if at all, subject to and in compliance with the following covenants, conditions, restrictions, reservations and easements which are hereby declared to be for the benefit of the Covered Property, the Owners thereof, and their successors and assigns. These covenants, conditions, restrictions and easements shall run with the land and shall bind all parties having or acquiring any right to or title in all or any part of the Covered Property, and shall inure to the benefit of any and all such parties as a servitude in favor of the dominant tenement(s). ARTICLE 1 DEFINITIONS For the purposes of the Declaration, the Articles and Bylaws of the Association, the following terms shall have the following meanings: Section 1.01 "Articles" shall mean the Articles of Incorporation of the Oakesdale Commerce Park East Owners Association, as filed with the Washington Secretary of State, as amended from time to time. Section 1.02 "Association" shall mean and refer to Oakesdale Commerce Park East Owners Association, a Washington nonprofit corporation, its successors and assigns. Section 1.03 "Base Assessments" shall mean all assessments levied on all Lots hereunder to fund Common Expenses for the general benefit of all Lots, as more particularly described in Section 8.02. Section 1.04 "Board" shall mean and refer to the Board of Directors of the Association, as provided for in Article 4. For purposes of exercising the powers and duties assigned in this Declaration to the Board, this term shall also mean the "Temporary Board" of"Declarant" as provided in Section 5.03, unless the language or context clearly indicates otherwise. Section 1.05 "Bylaws" shall mean the Bylaws of the Association, as they may be amended from time to time. 3938/010/168862.4 -2- Section 1.15 "Lot" shall mean a portion of the Covered Property shown on the Plat, as Lot El, E2, E3, E4 or E5, provided that if any of such Lots is, in the future, subdivided or re-subdivided, whether by plat or deed, in compliance with this Declaration and applicable law, each lot or parcel created by such subdivision shall be considered a Lot hereunder, and the votes and liability for assessments shall be recomputed for each lot or parcel created by subdivision in accordance with Section 3.03. Section 1.16 "Mortgage" shall mean any first mortgage, deed of trust, sale and leaseback use for financing purposes, or other security instrument, and any replacements, renewals, amendments, modifications, extensions or refinancings thereof Section 1.17 "Mortgagee" shall mean the beneficial owner of any encumbrance created by a Mortgage and, in the case of a sale and leaseback, the leaseback lessor. Section 1.18 "Mortgagor" s hall mean the p arty executing a Mortgage,which shall include the trustor under the deed of trust and, in the case of a sale and leaseback, the leaseback lessee. Section 1.19 "Owner" shall mean one or more persons or entities who alone or collectively are the record owner(s) of fee simple title to a Lot, including Declarant, the vendee under an installment land sales contract, but excluding those having any such interests merely as security for the performance of an obligation. If the ownership interest of any building or improvement on any portion of the Covered Property is severed from the Lot, whether by lease or by deed, the Owner(s) of the interest in the Lot and not the building or improvement shall be deemed an Owner hereunder. Section 1.20 "Permittee" shall mean any and all of the Owner's tenants, occupants, licensees, invitees and employees. Section 1.21 "Person" shall mean a natural person, a corporation, a partnership, a trustee, a limited liability company, or any other legal entity. Section 1.22 "Plat" shall mean and refer to the Binding Site Plan LUA- 03-0739 -BSP, recorded in the Records of King, County, Washington, under Recording No. Section 1.23 "Special Assessment" shall mean assessments levied in accordance with Section 8.04 of this Declaration. Section 1.24 "Specific Assessment" shall mean assessments levied in accordance with Section 8.05 of this Declaration. 3938/010/168862.4 -4- Section 1.25 "Tract" shall mean a portion of the Covered Property shown on the Plat as Tract C, Tract D or Tract F. Section 1.26 "Transition Date" shall mean and refer to that date defined in Section 5.01 of this Declaration. ARTICLE 2 EASEMENTS Section 2.01 Easement for Ingress, Egress and Traffic Circulation. (a) Grant of Easements. Declarant hereby reserves to itself and subsequent Owners of Lots and their respective Permittees, non-exclusive easements (the "Access Easements") over and across the roadway portions, as they exist from time to time, of the Common Area (the "Access Easement Area") for the purposes of vehicular and pedestrian ingress and egress and traffic circulation from Southwest 34th Street to each Lot. Declarant also reserves to Declarant and the Association non-exclusive easement in, on and over the Common Area for ingress, egress, maintenance, repair, installation, replacement and reconstruction of necessary improvements, access, use and enjoyment and for such other purposes as Declarant and the Association reasonably determines appropriate under the terms and conditions of this Declaration. The foregoing reservation also includes the right to grant additional easements over the Common Area to those Persons and for those purposes as Declarant or, after the Transition Date, the Association reasonably deems appropriate. Nothing in this Section 2.01 shall prohibit any Owner from further improving, using or granting easements over, under, and across the Owner's own Lot for any lawful purposes, including without limitation, construction of permanent structures and the creation of utility easements and installations, provided such improvements, uses or easements do not materially restrict the rights of ingress, egress and/or traffic circulation established herein. (b) Restrictions on Parking. No delivery or service trucks servicing the business operations located on any of the Lots shall be permitted to park in any parking lot located on any portion of the Covered Property other than the Lot being served by such delivery or service truck. The Access Easement Area may be used only for ingress and egress to each Owner's Lot, and: (i) in no event shall there be any right to shared parking among the Lots unless agreed to by the Owners of the affected Lots, (ii) an Owner shall not alter, change, and/or modify the location of the parking stalls, curbs, or any other parking facility of the Owner's Lot to encroach materially upon the Access Easement without the prior written consent of Declarant(or if Declarant no longer owns an interest in the Covered Property, the Association), (iii) such parking shall not interfere with the use of the Access Easement for pedestrian and vehicular ingress, egress, passage and/or delivery 3938/010/168862.4 -5- . - to the Lots, and (iv) no portion of the Access Easement Area shall be used for repair, storage, maintenance, improvement or overnight parking of any vehicles whatsoever. -No trailers, recreational vehicles or other heavy duty or oversized vehicles shall be permitted to stage, load, unload, or park in the Access Easement Area at any time. If any vehicle utilizing the Access Easement violates any of the foregoing restriction(s), an Owner shall have the right, but not the obligation, to remedy such violation(s) pursuant to all applicable laws, regulations, and ordinances and shall have the right to cause such vehicle to be removed from the Access Easement Area at no cost to said Owner. Section 2.02 Easements for Storm Water Drainage and Utilities (a) Easements for Storm Water Drainage Systems. Declarant hereby reserves to itself and subsequent Owners of each and every Lot, a non-exclusive easement for storm water flow through the storm water drainage facilities constructed on the Covered Property and depicted on the storm drainage plan map attached hereto as Exhibit B ("Common Storm Water Facilities") to utilize such Common Storm Water Facilities for drainage of storm water from each Lot to the Detention Pond System. Declarant's reservation of the easements pursuant to this Section 2.02(a) is without representation or warranty as to the capacity of the Common Storm Water facilities. (b) Easements for Utilities. Declarant hereby reserves to itself and subsequent Owners of each and every Lot, to the Association, and to the designees of Declarant or the Association (which may include, without limitation, any governmental or quasi-governmental entity, and any utility company): (i) non-exclusive easement upon, across, over, and under all of the Covered Property (but not through or under a building or other structure), for ingress, egress, installation, monitoring, replacing, repairing, and maintaining devices for: sending or receiving data or other electronic signals; security and similar systems; street lights; all utilities, including, but not limited to, water, sewer, telephone, gas, and electric lines and meters; and otherwise as may be necessary, in the sole discretion of Declarant or, after the Transition Date, the Association, for the performance of the Association's maintenance responsibilities under this Declaration; and (ii) the non-exclusive right and power to grant such specific easements over the Covered Property (but not through or under a structure) as may be necessary, in the sole discretion of Declarant, in connection with the orderly development of any portion of the Covered Property. The Owner of any property to be burdened by any specific easement granted pursuant to this Section 2.02(b) shall be given written notice in advance of the grant. The grant of any easement pursuant to this Section 2.02(b) outside any area which may have been reserved for such purpose on a recorded plat or binding site plan shall be subject to the written approval of the Owner of the property burdened by that easement. Upon the exercise of any easement pursuant to this Section 2.02(b), the party exercising the easement shall: (a) cause all work associated with the exercise of the easement to be performed with the least possible interference practicable to the use and enjoyment of the 3938/010/168862.4 -6- property burdened by that easement; and (b) upon completion of all work associated with that easement, cause the property burdened by that easement to be restored, to the extent reasonably possible, to its condition prior to the commencement of the work. No above- ground sewers, electrical lines, water lines or other utilities may be installed or relocated on the Covered Property. The easements provided for in this Section 2.02(b) shall in no way adversely affect any other recorded easement on the Covered Property, nor shall they be exercised in any manner which materially restricts or interferes with the use and development of a Lot. Section 2.03 Signage Easements. Declarant hereby reserves for itself and the Association non-exclusive easements to enter upon the Lots to construct and operate a monument sign ("Signage Easements") in the locations depicted on Exhibit C together with the right to enter the Lots upon which the Signage Easements are located in order to inspect, maintain and repair the same, including without limitation any electric utilities serving the same. All signage on or within the C overed Property shall comply with the codes and standards of the City and utilize electricity separately metered from each Lot. No improvements shall be located within the Signage Easements without the approval of the Board. Section 2.04 Open Yard Area. Because both the King County and the City of Renton by way of enforcement of the Uniform Building Code require that there be a sixty foot (60') no build restriction around all buildings ("Open Yard Area"), the Lots shall be held, conveyed and developed subject to an Open Yard Area, which restriction is hereby declared to be for the benefit of the Declarant and/or the Owner of each Lot. No building shall be constructed within the Open Yard Area on any Lot. Notwithstanding, construction of other improvements such as but without limitation driveways, curbs, g utters, parking areas, landscaping, surface level roadways, fences and walls, utilities, retention walls, exit stairs, trash enclosures, truck ramps and similar uses are permitted. Nothing set forth herein shall prohibit unrestricted access and use of the Open Yard Area by its Owner, nor prohibit the repair or maintenance of any improvements within the Open Yard Area. Upon completion of construction of each building, an Open Yard Agreement, which Declarant shall reasonably administer within its sole discretion, may be recorded against each Lot for the purpose of satisfying the Uniform Building Code requirement. Section 2.05 Dominant and Servient Estates. Each easement granted or reserved pursuant to the provisions hereof is expressly for the benefit of each Lot and the Lot so benefited shall be the dominant tenement and the Lot upon which each such easement is located shall be the servient tenement and each such easement shall run with the land and shall inure to the benefit of and shall bind the successors and assigns of the Declarant. 3938/010/168862.4 -7- • Section 2.06 Right of Entry. The Association and Declarant shall have the right, but not the obligation, to enter upon any Lot for emergency, security, and safety reasons, and to inspect for the purpose of investigating compliance with the Governing Documents. This right may be exercised by any member of the Board; by any officer, manager, agent or employee of the Association acting with the permission of the Board; by Declarant, any officer, agent, or employee of Declarant acting with Declarant's permission; and by all police, fire and similar emergency personnel in the performance of their duties. This right of entry shall include the right of the Association or Declarant to enter upon a Lot to perform maintenance or cure any condition which may increase the possibility of a fire or other hazard, in the event that the Owner fails or refuses to perform such maintenance or cure such condition within a reasonable time after request by the Board or Declarant. Except in an emergency situation to avoid an imminent threat of personal injury or property damage, entry into any portion of a Lot not part of the Common Area shall only be authorized during reasonable hours and after receipt of the Owner's or occupant's consent or after reasonable prior notice to Owner or occupant. ARTICLE 3 ASSOCIATION MEMBERSHIP AND VOTING Section 3.01 Function of Association. The Association shall be the entity responsible for management and m aintenance o f t he C ommon Area within the C overed Property. The Association shall be the primary entity responsible for enforcement of this Declaration. The Association shall perform its functions in accordance with the Governing Documents and Washington laws. The Association may also establish and operate such programs as may be determined to advance the common interests of the Members such as joint marketing efforts, community events,recycling programs or similar activities. Section 3.02 Membership. Every Owner shall be a Member of the Association. There shall be only one membership per Lot. If a Lot is owned by more than one Person, all co-Owners shall share the privileges of such membership, subject to Board regulation and the restrictions on voting set forth in Section 3.03 and in the Bylaws, and all co-Owners shall be jointly and severally obligated to perform the responsibilities of Owners. The membership rights and privileges may be exercised by the Owner, if a natural person or, in the case of an Owner which is a corporation, partnership, limited liability company or other legal entity, by any officer, director,partner,member, or trustee, or by any other individual designated by the Owner from time to time in a written instrument provided to the Secretary of the Association. Section 3.03 Voting. Each Member shall be entitled to the number of votes assigned to its Lot in accordance with the following provisions: 3938/010/168862.4 -8- (a) Determination of Equivalent Units. Assessment obligations and voting rights under the Declaration shall be based upon the number of"Equivalent Units" assigned to a particular Lot relative to all other Lots subject to a particular assessment or entitled to vote on a particular matter. The number of Equivalent Units assigned to each Lot shall be determined as follows: Each Lot is assigned one Equivalent Unit for each 1,000 square feet of land within the Lot. A percentage of an Equivalent Unit, rounded to one-tenth, shall be assigned for any such area less than 1,000 square feet. (b) Calculation of Assessment. The percentage of a particular assessment to be levied on each Lot (unless otherwise provided in the Declaration) shall be computed by multiplying the total amount to be assessed by a percentage (rounded to one- tenth) calculated by dividing the Equivalent Units assigned to such Lot as provided above by the sum of the total Equivalent Units assigned to all Lots subject to the particular assessment. (c) Calculation of Voting Rights. The percentage of the total voting power allocated to each Lot (rounded to one-tenth) shall be computed by dividing the Equivalent Units assigned to such Lot by the total Equivalent Units assigned to all Lots eligible to vote. (d) Computation by Board. The number of Equivalent Units and resulting percentages for allocation of assessments and voting rights shall be computed annually by the Board of Directors as of a date which is not less than 60 days prior to the beginning of each fiscal year. Notice of the percentages for each Lot shall be sent to each Owner together with the annual notice of assessments. (e) Multiple Owners. If there is more than one Owner of any Lot, the votes for such Lot shall be exercised as such co-Owners determine among themselves and advise the Secretary of the Association in writing prior to the vote being taken. In the absence of such advice, the vote for such Lot shall be suspended if more than one co-Owner seeks to exercise it. Any Owner may assign the right to cast the votes allocated to its Lot to the lessee of such Lot by written proxy filed with the Secretary of the Association in accordance with the Bylaws. ARTICLE 4 RIGHTS AND OBLIGATIONS OF THE ASSOCIATION Section 4.01 Common Area. The Association, subject to the rights of the Owners set forth in this Declaration, shall maintain the Common Area and all improvements thereon (including, without limitation, landscaping, furnishings, equipment and other personal property of the Association—but not the individual personal property of Owners—used in connection with the Common Area). Following construction of IIS 3938/010/168862.4 -9- improvements to each Lot by the Owners thereof, the Association shall keep the Common Area in good, clean, attractive, and sanitary condition, order, and repair, consistent with this Declaration the applicable zoning requirements. The Board is specifically authorized, but not obligated, to retain or employ professional management to assist in carrying out the Association's responsibilities under this Declaration and the Bylaws, the cost of which shall be a Common Expense. Following the initial construction of Common Area improvements, the Association shall have the right to reconstruct or replace any such improvements as and when determined by the Board. Section 4.02 Enforcement. The Association may enforce, and may impose sanctions for violations of, the Governing Documents in accordance with procedures set forth herein and in the Bylaws, including monetary fines and suspension of the right to vote. In addition, in accordance with the Bylaws, the Association may exercise self-help to cure violations and may suspend any services it provides to the Lot of any Owner who is more than 30 days delinquent in paying any assessment or other charge due to the Association. All remedies set forth in this Declaration and the Bylaws shall be cumulative of any remedies available at law or in equity. In any action to enforce the provisions of this Declaration or Association rules, the prevailing party shall be entitled to recover all costs, including, without limitation, attorneys' fees, reasonably incurred in such action. So long as Declarant owns any portion of the Covered Property, Declarant may enforce the Governing Documents. The Association shall not be obligated to take action to enforce any covenant, restriction or rule which the Board reasonably determines is, or is likely to be construed as, inconsistent with applicable law, or in any case in which the Board reasonably determines that the Association's position is not strong enough to justify taking enforcement action. Any such determination shall not be construed as a waiver of the right to enforce such provision under other circumstances or estop the Association from enforcing any other covenant, restriction or rule. Section 4.03 Board of Authority. The Association may exercise any right or privilege given to it expressly by this Declaration or the Bylaws, and any right which is necessary to effectuate any express right or privilege. Except as otherwise specifically provided in the Governing Documents or by law, all rights and powers of the Association may be exercised by the Board without a vote of the membership. Section 4.04 Indemnification. The Association shall indemnify every officer, director and c ommittee member, against all damages and expenses, including attorneys' fees, reasonably incurred in connection with any action, suit, or other proceeding (including settlement of any suit or proceeding, if approved by the then Board) to which such person may be a party by reason of being or having been an officer, director, or committee member, except that such obligation to indemnify shall be limited to those actions as to which liability is limited under this Section and Washington law. The officers, directors, and committee members shall not be liable for any mistake of judgment, 3938/010/168862.4 -10- negligence or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith. The officers, directors, and committee members shall have no personal liability with respect to any contract or other commitment made or action taken, in good faith, on behalf of the Association; provided, however, that the foregoing shall not relieve a Member from any contractual liability to the Association merely as a result of such Member's status as an officer, director or committee member of the Association. The Association s hall i ndemnify and forever h old each such o fficer, director and c ommittee member harmless from any and all liability to others on account of any such contract, commitment or action. This right to indemnification shall not be exclusive of any other rights to which any present or former officer, director, or committee member may be entitled. The Association shall, as a Common Expense, maintain adequate general liability and officers' and directors' liability insurance to fund this obligation, if such insurance is reasonably available. ARTICLE 5 DEVELOPMENT PERIOD; MANAGEMENT RIGHTS OF DECLARANT DURING DEVELOPMENT Section 5.01 Management by Declarant. "Development Period"shall mean that period from the date this Declaration is recorded in the Records of King County, Washington, until the earlier of(the "Transition Date"): (a) a date five (5) years from the date of such recording; and (b)the date Declarant no longer owns any interest in or to the Covered Property; and (c)the date on which Declarant elects to permanently relinquish all of Declarant's authority under this Article 5 by written notice to all Owners. Until termination of the Development Period, either upon the sale of the required number of Lots, the expiration of five years, or at the election of the Declarant, the Covered Property shall be managed and the Association organized at the sole discretion of the Declarant. Section 5.02 Notice to Owners. Not less than 10 nor more than 30 days prior to the termination of the Development Period, the Declarant shall send written notice of the termination of the Development Period to the Owner of each Lot. Said notice shall specify the date when the Development Period will terminate and shall further notify the Owners of the date, place and time when a meeting of the Association will be held. The notice shall specify that the purpose of the Association meeting is to elect new officers and directors of the Association, and to approve or establish Articles or Bylaws. Notwithstanding any provision of the Articles or Bylaws of the Association to the contrary, for the purpose of this meeting, the presence, either in person or by proxy, of the Owners of three (3) Lots shall constitute a quorum. The Board and the officers of the Association may be elected by a majority vote of said quorum. If a quorum shall not be present, the Development Period shall nevertheless terminate on that date specified in said notice and it 3938/010/168862.4 -11- shall thereafter be the responsibility of the Lot Owners to provide for the operation of the Association. Section 5.03 Temporary Board. Declarant may, in its sole discretion, and at such times as the Declarant deems appropriate, appoint three persons who may be Lot Owners, or are representatives of corporate entities or other entities which are Lot Owners, as a Temporary Board. This Temporary Board shall have full authority and all rights, responsibilities, privileges and duties to manage the Covered Properties under this Declaration and shall be subject to all provisions of this Declaration, the Articles and the Bylaws, provided that after selecting a Temporary Board, the Declarant, in the exercise of his sole discretion, may at any time terminate the Temporary Board and reassume its management authority under this Article or select a new Temporary Board under this Section 5.03. Section 5.04 Management of Plat During Development Period. So long as no Temporary Board is managing the Covered Properties or until such time as the first permanent Board is elected, should Declarant choose not to appoint a Temporary Board, Declarant or a managing agent selected by the Declarant shall have the power and authority to exercise all the rights, duties and functions of the Board and the Association and generally exercise all powers necessary to carry out the provisions of this Declaration, including but not limited to enacting reasonable administrative rules, contracting for required services, obtaining property and liability insurance, and collecting and expending all assessments and Association funds. Any such managing agent or the Declarant shall have the exclusive right to contract for all goods and services, payment for which is to be made from any monies collected from assessments. Section 5.05 Purpose of Development Period. These requirements and covenants are made to ensure that the Covered Properties will be adequately administered in the initial stages of development and to ensure an orderly transition to Association operations upon the Transition Date. Acceptance of an interest in a Lot evidences acceptance of this management authority in Declarant. Section 5.06 Expenditures During Development Period. During the Development Period, Declarant or any successor of Declarant, shall have the sole discretion to use and consume all or so much of the dues paid in as in Declarant's judgment is necessary or expedient in maintaining the Common Areas and carrying out the other functions of the Association. Maintenance of Common Areas include, but are not limited to, (1) replacement of all dead or missing flowers, annual color change, shrubs, trees or grass; (2) irrigation costs and repairs; and (3) costs of any vandalism. Other functions include any legal fees associated with Declarant, or any successor of Declarant, carrying out any duties arising from the management of the Common Area during the Development Period, including all costs associated with turning management over to the 3938/010/168862.4 -12- Association after the expiration of the Development Period. Upon termination of the Development Period, Declarant shall deliver any funds remaining to the Association. However, if, during the Development Period, the expenses have exceeded the receipts, Declarant shall have no claim against the Association. Declarant, or any successor of Declarant, shall not be liable to the Association for monetary damages for conduct as the Declarant and shall be held harmless from any and all legal actions brought by the Association for the administration of the Association prior to expiration of the Development Period except for acts of dishonesty; acts that were not make in good faith, acts that were unlawful, or for any failure to exercise the degree of care and loyalty required under R.C.W 24.03 et seq. ARTICLE 6 DESIGN APPROVAL AND CONSTRUCTION Section 6.01 Approvals Required. So long as Declarant retains an interest in or to the Covered Property: (i) no erection or construction of buildings or structures, or installation of landscaping, or grading or other improvements that has not first received the written approval of Declarant or which does not comply with plans and specifications approved by Declarant shall be made or constructed in, about or on the Covered Property; (ii) all buildings, structures, landscaping and improvements on the Covered Property shall be designed, constructed and installed in compliance with a site plan approved by Declarant. Declarant shall not unreasonably withhold its approval of any such plans and specifications so long as the site plan, plans and specifications and items described therein are in harmony and conformity with other existing or proposed improvements on the Covered Property and with Declarant's circulation, general aesthetic, architectural plans, and criteria for the Covered Property. No language in this Declaration or in this Section 6.01 shall relieve Declarant, Owners, and their successors, and assigns from the duty to comply with all applicable State, Federal, and local laws and regulations including, without limitation, the City's municipal code, all land use ordinances, restrictions and resolutions. Section 6.02 Time for Approvals. Declarant shall approve or disapprove any plans and specifications delivered to Declarant pursuant to this Section 6.02 within thirty (30) calendar days after receipt of two (2) copies thereof. If approved by Declarant, such approval shall be endorsed on such plans and specifications and one set of such documents bearing Declarant's approval shall be returned to Owner within such thirty (30) calendar day period. If Declarant does not approve such plans and specifications, Declarant shall, within said thirty (30) calendar day period, notify the Owner in writing of its reasons for not approving such plans and specifications and such Owner shall, within thirty (30) calendar days after receiving written notice of Declarant's disapproval, submit new plans and specifications for Declarant's approval. Failure of Declarant to approve or disapprove any plans and specifications within said thirty (30) day period and Declarant's continued 3938/010/168862.4 -13- failure to approve or disapprove for ten (10) calendar days after Owner's written notice to Declarant that Declarant has failed to approve or disapprove as required herein (which notice shall also state that failure to respond within ten (10) calendar days of this notice shall be deemed approval of the items submitted) shall be deemed approval thereof. The approval by Declarant of any plans and/or specifications pursuant to this Section shall be approval only as to their conformity with Declarant's design requirements and general aesthetic and architectural plan(s) for the area. Such approval shall not be deemed approval for architectural or engineering design nor a representation or warranty by Declarant as to the adequacy or sufficiency of such plans and specifications or the grading, landscaping, improvements or construction contemplated thereby for any use or purpose. By approving such plans and specifications, Declarant assumes no liability or responsibility therefor or for any defect in any grading, landscaping, improvements or construction made pursuant thereto. Section 6.03 As Built Plans. So long as Declarant retains an interest in or to the Covered Property, upon completion of the grading, landscaping and/or construction of improvements, an Owner shall submit to Declarant two "as built" sepias and a certificate of compliance executed by such Owner's Washington state-licensed engineer, architect and/or landscape architect. The certificate of compliance shall warrant that the completed grading, landscaping and/or construction conforms to the plans and specifications therefor approved by Declarant. Section 6.04 Construction. Use and enjoyment by the Owner of any Lot of the easement rights herein granted shall be subject to the following terms, covenants and restrictions. (a) The Owner of each Lot on which construction takes place (each, a "Constructing Owner") shall pay all reasonable costs and expenses incurred by any other Lot Owner due to damage to the Covered Property arising from or related to such Constructing Owner's construction operations at such Constructing Owner's Lot. No Constructing Owner shall materially obstruct the free flow of pedestrian or vehicular traffic upon and across the Covered Property during any period of construction on its Lot or at any time thereafter. During such period of construction, such Constructing Owner may use the access and perimeter driveways of the Covered Property for construction vehicle access to, from and between such Constructing Owner's Lot and South 34th Street. During such period of construction, Constructing Owner shall cause the interior driveways of the Covered Property to be maintained free of all materials and supplies arising out of or resulting from such Constructing Owner's construction and otherwise in a neat and orderly condition undisturbed from Constructing Owner's construction operations. Any vehicle or equipment used in such construction or any materials used in such construction shall be parked or stored only in an area consistent with Section 2.01(b) above and approved in writing by Declarant or, after the Transition Date, the Association. Each Constructing 3938/010/168862.4 -14- Owner agrees to defend, indemnify and hold harmless Declarant, the Association, and each other Lot Owner and its Permittees from and against any and all loss, cost, damage, liability, claim or expense (including, without limitation, reasonable attorneys' fees) arising from or relating to such Constructing Owner's construction operations. All construction operations at a Constructing Owner's Lot shall be performed in a lien-free and good and workmanlike manner, in accordance with all applicable laws, rules, regulations and requirements. No Constructing Owner shall permit or suffer any mechanic's liens claims to be filed o r o therwise a sserted against the C overed Property o utside its Lot i n connection with such C onstructing Owner's construction operations, and s hall promptly discharge the same in case of the filing of any claims for liens or proceedings for the enforcement thereof; but in the event the Constructing Owner in good faith desires to contest the validity or amount of any mechanic's lien, it shall have the right to contest the validity or amount of any such mechanic's lien, provided that: (i) such Constructing Owner deposits with the Owner of the Lot affected by s uch mechanic's lien cash or a letter of credit or other security reasonably acceptable to such affected Lot Owner in an amount equal to one hundred fifty percent (150%) of the amount of said lien to insure payment and prevent any sale or forfeiture of any part of the affected Lot by reason of nonpayment; (ii) neither the affected Lot nor any part thereof or interest therein would be in any substantial danger of being sold, forfeited or lost, (iii) such affected Lot Owner would not be in any substantial danger of any civil or criminal liability for failure to comply therewith; and (iv) such Constructing Owner promptly notifies such affected Lot Owner, in writing, of such contest. A ny such contest s hall b e p rosecuted with due diligence and the C onstructing Owner shall promptly after the final determination thereof pay the amount of any such lien, together with all interest, penalties and other costs payable in connection therewith. Any letter of credit deposited hereunder shall be issued by a national bank reasonably acceptable to the affected Lot Owner. Each Constructing Owner and its tenants and their respective contractors and subcontractors shall be solely responsible for the transportation, safekeeping and storage of materials and equipment used in connection with such Constructing Owner's construction operations, and for the removal of waste and debris resulting therefrom. In the event any Constructing Owner's construction operations detrimentallyaffect the condition of anyportion of the Covered Property, such Constructing Owner s hall restore the C overed Property, o r p art t hereof, to its c ondition existing prior to commencement of such Constructing Owner's construction operations, including without limitation, any filling and compacting of all excavations, repaving of paved areas and replacement of landscaping. No such construction operations shall result in a labor dispute or encourage labor disharmony. Prior to commencement of construction operations, a Constructing Owner shall, at its sole cost and expense, obtain and maintain, or cause its general contractor to obtain and maintain, during the performance of the Constructing Owner's construction operations, workers' compensation insurance covering all persons directly employed by the Constructing Owner or its general contractor in connection with its construction operations and with respect to which death or injury claims could be asserted against Declarant, the Association, such Constructing Owner, the 3938/010/168862.4 -15- Covered Property or any interest therein, as required by applicable laws and regulations, together with commercial general liability insurance for the mutual benefit of Declarant and such Constructing Owner with limits not less than the amounts set forth in Section 7.03(b) hereof, and all risk builder's risk insurance for full insurable value covering any improvements constructed. All such insurance shall be written by solvent insurance companies licensed in the State of Washington and all such policies of insurance or binders of insurance shall be delivered to the Association prior to commencement of such Constructing Owner's construction operations. Section 6.05 Damage and Destruction. In the event of any damage or destruction to a building constructed on a Lot, the Lot Owner shall promptly remove all rubble and debris resulting from such damage or destruction and shall commence restoration within six (6) months of such damage or destruction and shall complete restoration of such damage or destruction within twelve (12) months after the date thereof, or shall forthwith remove all rubble and debris resulting from such damage or destruction and restore the site to a safe, orderly and clean condition as soon as possible and maintain landscaping as required by the City, provided that the time periods described herein shall be deferred for a period, not to exceed an aggregate of three hundred sixty-five (365) days, equal to any delay caused by reason of strikes, lockouts, labor disputes, inability to obtain labor, materials or reasonable substitutes therefor, acts of God, governmental restrictions, regulations or controls, enemy or hostile governmental action, civil commotion, insurrection, revolution, sabotage, fire or other casualty, acts or governmental agencies, or other causes (other than lack of funds) beyond the reasonable control of any such Lot Owner. ARTICLE 7 MAINTENANCE OBLIGATIONS; INSURANCE AND INDEMNITY Section 7.01 Owner's Responsibility for Improvements and Wall Maintenance. Declarant hereby covenants and agrees for itself, each Owner and their respective Permittees and successors and assigns, that each Owner of a Lot shall, at its sole cost and expense, maintain any buildings, structures, trash enclosures or designated areas, or improvements located on a Lot and that portion of any perimeter concrete block wall located on each Lot in a manner consistent with a first class commercial industrial park and in accordance with all applicable State, Federal, and local laws including, without limitation, the City's municipal code, all land use ordinances, restrictions, and resolutions. Except for Common Areas maintained by the Association, each Owner shall keep all buildings, structures, and improvements located on that Owner's Lot, free and clear of all weeds, debris and rubbish, painted in a color complementary to the color originally approved by Declarant or complimentary to the buildings located on the remainder of the Covered Property and free and clear of graffiti. Any dumpster serving any Lot shall be 3938/010/168862.4 -16- • (9) Maintain, repair and replace, as necessary, the drainage system and the Common Storm Water Facilities, located on or in the Common Area, in a first-class condition and in compliance with the City's Municipal Code, so as to provide uninterrupted and/or uninhibited Storm Water drainage for each of the Lots including without limitation keeping the area free and clear of any and all weeds, rubbish, and/or debris or other obstructions which would impede the natural flow of water to the public drainage system; (10) Except to the extent maintained by the City, maintain the Tracts and the Detention Pond System at all times in good, safe, neat and orderly condition, and in compliance with all applicable laws and regulations, including maintenance, repair and replacement of such system in any fence on the Tracts; and (11) Maintain all Project Signage and Owner Signage in good condition and repair, including replacement as necessary. The Association may maintain other property which it does not own, including, without limitation, publicly owned property and other property dedicated to public use, if the Board determines that such maintenance is necessary or desirable and constitutes a Common Expense. Except as otherwise specifically provided herein, all costs associated with maintenance, repair, reconstruction and replacement of the Common Area shall be a Common Expense to be allocated among all Lots as part of the Base Assessment, without prejudice to the right of the Association to seek reimbursement from the Owner(s) of, or other Persons responsible for sharing in the costs of, certain portions of the Common Area pursuant to this Declaration, other recorded covenants, or agreements with the Owner(s) thereof. Section 7.03 Insurance. (a) Association Insurance. The Association, acting through the Board or its duly authorized agent, shall obtain and continue in effect: (i) if reasonably available and to the extent the Board deems reasonably necessary, blanket property insurance on real or personal property within the Common Area for which the Association has maintenance and repair responsibilities; (ii) commercial general liability insurance on the Common Area and any portion of the Covered Property owned by the Association; (iii) directors and officers liability coverage; (iv) fidelity insurance; and (v) such additional insurance as the Board, in its business judgment, determines advisable or is required by law. The Board shall review annually and shall have an experienced insurance professional review the types and amounts of insurance coverage and shall establish the 3938/010/168862.4 -18- requirements for such coverages. Insurance premiums shall be a Common Expense. In the event of an insured loss, the deductible, in such amount as established by the Board, shall be treated as a Common Expense. However, if the Board reasonably determines, after notice and an opportunity to be heard in accordance with the Bylaws, that the loss is the result of the negligence or willful misconduct of one or more Owners and/or their Permittees, then the Board may specifically assess the full amount of such deductible against such Owner(s) and their Lots as a Specific Assessment. Association insurance shall not be brought into contribution with insurance purchased by Owners, occupants, or their Mortgagees individually. In addition, the Board shall use reasonable efforts to secure insurance policies which list the Owners as additional insureds and provide waivers, endorsements, and other provisions to the extent the Board deems reasonably necessary. In the event of a loss covered by Association insurance, the Board or its duly authorized agent shall file and adjust all insurance claims. Decisions regarding the repair or reconstruction of any insured damage shall be made by the Board in its reasonable discretion. If insurance proceeds are insufficient to cover the costs of repair or reconstruction, the Board of Directors may, without a vote of the Members, levy Special Assessments or Specific Assessments to cover the shortfall against those Owners responsible for the premiums. (b) Owner Insurance. Declarant hereby covenants and agrees upon behalf of itself, each Owner, and their successors and assigns to maintain, at their sole cost and expense, a policy (the "Policy") of commercial general liability insurance insuring the other Owners against liability for bodily injury, death, property damage, and personal injury arising out of the maintenance, repair, and/or use of the easements granted herein or the exercise of the rights granted herein. Each Policy shall: (i) name the other Owners as additional insureds; (ii) be in an initial amount of One Million Dollars ($1,000,000.00)per occurrence, Two Million Dollars ($2,000,000.00) in aggregate and Five Million Dollars ($5,000,000.00) in excess liability; (iii) be subject to periodic increase, as determined by the Board, based upon inflation, increased liability awards and reasonable requests by the other Owners; (iv) be in a form reasonably satisfactory to the Association and be carried with a company that has a general policyholder's rating of not less than "A" and a financial rating of not less than Class "VIII" in the most current edition of Best's Insurance Reports; (v) provide that the Policy shall not be modified, altered, changed or cancelled except after at least thirty (30) calendar days' prior written notice to the Association, and (vi) be primary, and any insurance carried by the other Owners or the Association and shall be non-contributing. A duly executed certified insurance c ertificate for the P olicy shall be delivered to the Association, and to other Owners upon request for the same and immediately after any renewal of the Policy. If any Owner fails to procure and maintain the Policy, the Association may, but shall not be required to, order the Policy at the defaulting Owner's sole cost and expense. All sums reasonably disbursed, deposited or incurred in connection therewith including, but not limited to, all costs and expenses and 3938/010/168862.4 -19- attorneys' fees, shall be immediatelydue and payable upon demand to the defaulting PY p Owner. Section 7.04 Compliance. Every Owner and occupant of any Lot shall comply with the Governing Documents and other covenants applicable to its Lot. Failure to comply shall be grounds for an action by the Association or, in a proper case, by any aggrieved Lot Owner(s), to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, in addition to those enforcement powers granted to the Association in this Declaration and/or in the Bylaws. The Covered Property is subject to the Governing Documents. No structure or thing shall be placed, erected, or installed on the Covered Property, and no improvements or other work (including platting, staking, site planning, clearing, excavating, grading and other site work, exterior alterations of existing improvements, or planting or removal of landscaping) ("Work") shall take place within the Covered Property, and no use shall be made of any portion of the Covered Property, except in compliance with the Governing Documents. All provisions of the Governing Documents shall apply to all Owners, occupants, tenants, guests and invitees of any Lot. Any lease on any Lot shall provide or shall be deemed to provide that the lessee and all occupants of the leased Lot shall be bound by the terms of the Governing Documents. Section 7.05 Indemnification. The Owner of each Lot agrees to defend, indemnify and hold harmless the Association and the other Lot Owners from and against any and all claims, actions, damages, fines, liabilities and expenses of every kind, nature and sort whatsoever (including reasonable attorney's fees, court costs and expenses) which may be imposed upon, incurred by or asserted against the indemnified party or its property in connection with loss of life, personal injury and/or property damage arising from or relating to any occurrence in, upon or at the Lot owned by the indemnifying party, or any part thereof, or from exercise of the easement rights granted herein, except to the extent caused by the willful or negligent acts or omissions of the indemnified party or to the extent covered by insurance. With respect to any indemnification provided for hereunder, the indemnifying Owner shall immediately respond and take over the expense, defense and investigation of all such claims arising under this indemnity. Each Lot Owner ("Releasing Owner") shall release and waive for itself, and each person claiming by, through or under it, the Association and each other Lot Owner ("Released Owner") from any liability for any loss (including any deductible loss) or damage to any property of such Releasing Owner located upon any portion of the Covered Property and for any business conducted upon any portion of the Covered Property, without regard to any negligence on the part of the Released Owner which may have 3938/010/168862.4 -20- contributed to or caused such loss, or of the amount of such insurance required to be carried or actually carried; provided, however, the foregoing release shall not apply to any loss or damage attributable to an environmental condition caused by the Released Owner. Each Lot Owner agrees to use all reasonable efforts to obtain, if needed, appropriate endorsements to its policies of insurance with respect to the foregoing release; provided, however, that failure to obtain such endorsements shall not affect the release hereinabove given. Notwithstanding the foregoing, in the event of the concurrent negligence of an indemnifying Lot Owner, its agents or employees on the one hand and the concurrent negligence of the Association and an indemnified Lot Owner, or their respective agents or employees on the other hand, which concurrent negligence results in injury or damage to persons or property of any nature and howsoever caused, and relates to the construction, alteration, repair, addition to, subtraction from, improvement to or maintenance of the Common Area or any improvements on a Lot such that RCW 4.24.115 is applicable, then an indemnifying Lot Owner's obligation to indemnify the Association or other Lot Owner, as the case may be, as set forth in this Section, shall be limited to the extent of the negligence of the indemnifying Lot Owner, its agents or employees, including its proportional share of costs, reasonable attorneys' fees and expenses incurred in connection with any claim, action or proceeding brought with respect to such injury or damage. Each Lot Owner shall be deemed automatically to have specifically negotiated and to have specifically waived, with respect to each other Lot Owner, but no other person, including any injured employee of a Lot Owner, any provisions of any industrial insurance act, including Title 51 of the Revised Code of Washington, or any other employee benefit act which might otherwise operate to release or immunize an indemnifying Lot Owner from its obligations under this paragraph. ARTICLE 8 ASSESSMENTS Section 8.01 Creation of Assessments. The Association is hereby authorized to levy assessments against each Lot for Association expenses as the Board may specifically authorize from time to time. There shall be three types of assessments: (a) Base Assessments to fund Common Expenses for the general benefit of all Lots, allocated to the Lots in accordance with their respective Equivalent Units; (b) Special Assessments as described in Section 8.04, allocated to the Lots in accordance their respective Equivalent Units; and (c) Specific Assessments as described in Section 8.05. Each Owner, by accepting a deed or entering into a recorded contract of sale for any portion of the Covered Property, is deemed to covenant and agree to pay these assessments. 3938/010/168862.4 -21- All assessments as to any Lot, together with interest from the due date of such assessment at a rate determined by the Board (not to exceed the highest rate allowed by Washington law), reasonable late charges (in such amount as the Board may establish by resolution from time to time), costs, and reasonable attorneys' fees, shall be a charge and continuing lien upon the Lot against which each assessment is levied until paid, as more particularly provided in Section 8.06. Each such assessment, together with interest, late charges, costs, and reasonable attorneys' fees, shall also be the personal obligation of the Person who was the Owner of such Lot at the time the assessment arose. Upon transfer of title to a Lot, the grantee shall be jointly and severally liable for any assessments and other charges due at the time of conveyance. The Association shall release the Lot's grantor from liability for assessments after the date of the Lot transfer,but the grantor shall continue to be liable for all assessments occurring prior to the date of the transfer. No first Mortgagee who obtains title to a Lot by exercising the remedies provided in its Mortgage shall be liable for unpaid assessments which accrued prior to such acquisition of title. Assessments shall be paid in such manner and on such dates as the Board may establish. If the Board so elects, assessments may be paid in two or more installments. If any Owner is delinquent in paying any assessments or other charges levied on its Lot, the Board may require any unpaid installments of all outstanding assessments to be paid in full immediately. The Association shall, upon request, furnish to any Owner liable for any type of assessment an estoppel certificate in writing signed by an Association officer setting forth whether such assessment has been paid. Such certificate shall be conclusive evidence of payment. The Association may require the advance payment of a processing fee adopted by the Board for the issuance of such certificate. No Owner may exempt itself from liability for assessments by non-use of Common Area, abandonment of its Lot, or any other means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner. No diminution or abatement of assessments or setoff shall be claimed or allowed for any alleged failure of the Association or Board to take some action or perform some function required of it, or for inconvenience arising from the making of repairs or improvements, or from any other action it takes. Section 8.02 Computation of Base Assessment. At least 60 days before the beginning of each calendar year, the Board shall prepare a budget covering the estimated Common Expenses for the coming year, which may include a capital contribution to a reserve fund in accordance with a budget separately prepared as provided in Section 8.03. In determining the total funds to be generated through Base Assessments, the Board, in its 3938/010/168862.4 -22- discretion, may consider other sources of funds available to the Association, including any surplus from prior years. The total budget shall be allocated among all Lots subject to assessment in accordance with their respective Equivalent Units. The Board shall send a copy of the budget and notice of the amount of the Base Assessment for the following year to each Owner at least 45 days prior to the effective date of such budget. Such budget and assessment shall become effective unless disapproved at a meeting by a vote of Owners representing at least a majority of the total votes in the Association. There shall be no obligation to call a meeting for the purpose of considering a budget except on petition of the Owners as provided for special meetings in the Bylaws, which petition must be presented to the Board within 10 days after delivery of the budget and notice of assessments. The Board may revise the budget and any assessment from time to time during the year, subject to the notice requirements and the right of the Members to disapprove the revised budget as set forth above. If any proposed budget is disapproved or the Board fails for any reason to determine the budget for any year, then until such time as a budget is determined, the budget most recently in effect for the immediately preceding year shall continue for the current year. Section 8.03 Reserve Budget and Capital Contribution. The Board annually may prepare reserve budgets for general purposes. The Board may set the required capital contribution in an amount sufficient to permit meeting the projected capital needs of the Association, as shown on the reserve budget, with respect both to amount and timing, by annual Base Assessments, over the budget period. Section 8.04 Special Assessments. In addition to other authorized assessments, the Association may levy Special Assessments from time to time to cover unbudgeted, extraordinary or other expenses which the Board determines to be more appropriately handled outside of the annual operating budget. Any such Special Assessment shall be levied against all Lots, in accordance with their respective Equivalent Units, if such Special Assessment is for general Common Expenses. Special Assessments shall be payable in such manner and at such times as determined by the Board, and may be payable in installments extending beyond the year in which the Special Assessment is approved. Any Special Assessment adopted by the Board shall become effective 30 days after notice of such Special Assessment is sent to the Owners unless disapproved at a meeting by Owners representing at least a majority of the total votes in the Association and Owners of at least 60% of the Lots; provided, there shall be no obligation to call a meeting for the purpose of considering the Special Assessment except on petition of Owners representing at least 60% of the total votes in the Association, which petition must be submitted to the 3938/010/168862.4 -23- • Board within 10 days after the date of such notice. In the event of any such petition, the Special Assessment shall not become effective unless and until the meeting is held and the requisite vote to disapprove is not obtained. Section 8.05 Specific Assessments. The Board shall have the power to levy Specific Assessments against a particular Lot or Lots constituting less than all Lots within the Covered Property as follows: (a) to cover the costs, including overhead and administrative costs, of providing benefits, items, or services to such Lot or occupants thereof upon request of such Lot's Owner pursuant to a menu of special services which the Board may from time to time authorize to be offered to Owners, which assessments may be levied in advance of the provision of the requested benefit, item or service as a deposit against charges to be incurred by or on behalf of the Owner; (b) to cover the costs of providing garbage disposal or other similar services to some, but not all, of the Lots, the costs of which shall be allocated among the benefited Lots in accordance with this usage as reasonably determined by the Board; (c) to cover the costs the Association incurs, for the benefit of an Owner or occupant of a Lot, but not for the benefit of the Owners or occupants of all Lots, which costs the Association shall allocate among all benefited Lots in accordance with their respective Equivalent Units; and (d) to cover costs incurred in bringing the Lot into compliance with the terms of the Governing Documents or costs incurred as a consequence of the conduct of the Owner o r o ccupants oft he Lot, t heir 1 icensees, i nvitees, o r guests;provided, the Board shall give the Lot Owner prior written notice and an opportunity for a hearing, in accordance with the Bylaws,before levying a Specific Assessment under this Section 8.05. Section 8.06 Date of Commencement of Assessments. The obligation to pay assessments shall commence as to each Lot on the first day of the calendar month following (a) the month in which such Lot is conveyed by Declarant to a third-party Owner, or (b)the month in which the Board first determines and levies assessments pursuant to this Article, whichever is later. The first annual Base Assessment levied on each Lot shall be adjusted according to the number of months remaining in the year at the time assessments commence on the Lot. Section 8.07 Lien for Assessments. All assessments authorized in this Article shall constitute a lien in favor of the Association against the Lot upon which they are levied until paid. The lien shall also secure payment of interest, late charges, and costs of collection (including attorneys' fees). The Association shall have the right to record a notice of lien in the public records giving notice of delinquent assessments of any Owner. 3938/010/168862.4 -24- Such lien shall be superior to all other liens, except: (a) the liens of all taxes, bonds, assessments, and other levies which by law would be superior, and(b) the lien or charge of any first Mortgage of record (meaning any recorded Mortgage with first priority over other Mortgages) made in good faith and for value. Such lien, when delinquent, may be enforced by suit, judgment, and foreclosure in the same manner as mortgages on real property are foreclosed under Washington law. The Association may bid for the Lot at the foreclosure sale and may use as a credit toward its bid the amount of the delinquent assessment and other charges authorized hereunder and acquire, hold, lease, mortgage, and convey the Lot. While a Lot is owned by the Association following foreclosure: (a)no right to vote shall be exercised on its behalf; (b)no assessment shall be levied on it; and (c) each other Lot shall be charged, in addition to its usual assessment, its pro rata share of the assessment that would have been charged such Lot had it not been acquired by the Association. The Association may sue for unpaid assessments and costs without foreclosing or waiving the lien securing the same. The sale or transfer of any Lot shall not affect the assessment lien or relieve such Lot from the lien for any subsequent assessments. However,the sale or transfer of any Lot pursuant to foreclosure of any first Mortgage shall extinguish the lien as to any installments of such assessments due prior to such sale or transfer. A Mortgagee or other purchaser of a Lot who obtains title pursuant to foreclosure of any Mortgage shall not be personally liable for assessments on such Lot due prior to such acquisition of title. Unless and until paid by the prior Owner, such unpaid assessments shall be deemed to be Common Expenses collectable from Owners of all Lots subject to assessment, including such acquirer, its successors and assigns. Section 8.08 Failure to Assess. Failure of the Board to fix the amount of any assessment or to deliver or mail to each Owner an assessment notice shall not be deemed a waiver, modification, or a release of any Owner from the obligation to pay assessments. In such event, each Owner shall continue to pay annual Base Assessments on the same basis as due for the last year for which an assessment was determined, if any, until a new assessment is made, at which time the Association may retroactively assess any shortfalls. ARTICLE 9 REMEDIES Section 9.01 Self Help. (a) Failure to Perform. If any Owner shall default in the performance of its obligations or payment of any cost required to be paid by an Owner hereunder ("Defaulting Party"), then the Association or any other Owners (individually or 3938/010/168862.4 -25- collectively "Affected Party") shall, in addition to all other remedies it may have at law or in equity, after fifteen (15) calendar days prior written notice (or in the event of an emergency after such notice as is practical under the circumstances), have the right to perform such obligation on behalf of such Defaulting Party. In such event, the Defaulting Party shall be responsible and obligated to reimburse the Affected Party promptly for the cost thereof, together with interest thereon from the date of any such certain outlay at a rate of two percent (2%) in excess of the reference rate publicly announced from time to time by Bank of America, its successors and assigns, including, by merger, for commercial loans (or the maximum lawful amount, whichever is less), plus reasonable collection fees. Any performance of an obligation of a Defaulting Party by an Affected Party pursuant to this Article 9 shall be accomplished in such manner as to minimize interference with the operation of any business enterprise operated on any Lot that is affected. (b) Lien Rights. Any such claim for reimbursement, together with interest thereon as aforesaid, shall be secured by a lien which shall attach to the Lot and the improvements thereon owned by the Defaulting Party, which lien may be recorded, enforced and foreclosed in the same manner as set forth in Section 8.07 for the Association's liens. (c) Injunction and Other Remedies. In the event of a breach or reasonably credible threatened breach of any material obligation under this Declaration, the Affected Party shall be entitled forthwith to obtain an injunction to specifically enforce the performance of such obligation; due to inadequacy of legal remedies and the irreparable harm which would be caused by any such breach, and/or to relief by other available legal and equitable remedies from the consequences of such breach. Any action taken or document executed in violation of this Declaration shall be void and may be set aside upon the petition of any other Owner to a court of competent jurisdiction. All costs and expenses of any such proceeding, including attorneys', shall be paid by the Defaulting Party and shall constitute a lien against the land and improvements thereon, or the interests therein,until paid in the manner provided in Section 9.01(a). (d) Non-Waiver. No delay or omission of the Association or any Owner in the exercise of any right accruing upon any default of any other Owner shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. A waiver by the Association or any Owner of a breach of, or a default in, any of the terms and conditions of this Declaration by any other Owner shall not be construed to be a waiver of any subsequent breach of or default in the same or any other provision of this Declaration. Except as otherwise specifically provided in this Declaration, no remedy provided in this Declaration shall be exclusive but each shall be cumulative with all other remedies provided in this Declaration and all remedies at law or in equity shall be available. 3938/010/168862.4 -26- ARTICLE 10 MISCELLANEOUS Section 10.01 Amendment. (a) By Declarant. In addition to specific rights granted elsewhere in this Declaration, so long as Declarant owns a Lot in the Covered Property, Declarant may, but shall not be required to, unilaterally amend this Declaration for any purpose, except that the amendment shall not have a material adverse effect upon the rights of any Owner. Thereafter, Declarant may unilaterally amend this Declaration at any time and from time to time if such amendment is necessary: (i)to bring any provision hereof into compliance with any applicable governmental statute, rule or regulation or judicial determination which is in conflict therewith; (ii) to enable any title insurance company to issue title insurance coverage with respect to any portion of the Covered Property; or (iii)to satisfy the requirements of any governmental agency. However, any such amendment shall not adversely affect the title t o any Lot unless the Owner o f t he affected Lot s hall c onsent thereto in writing. (b) By Owners. Except as provided above and as otherwise specifically provided elsewhere in this Declaration, this Declaration may be amended only by the affirmative vote or written consent, or any combination thereof, of Owners representing at least 51% of the total votes in the Association and the consent of Declarant, in its sole discretion, as long as Declarant owns any property in the Covered Property. However, the percentage of votes necessary to amend a specific clause shall not be less than the prescribed percentage of affirmative votes required for action to be taken under that clause. (c) Validity and Effective Date of Amendments. Amendments to this Declaration shall become effective upon recording unless a later effective date is specified therein. Any procedural challenge to an amendment must be made within six months of its recordation or such amendment shall be presumed to have been validly adopted. If an Owner consents to any amendment to this Declaration or the Bylaws, it will be conclusively presumed that such Owner has the authority so to consent, and no contrary provision in any Mortgage or contract between the Owner and a third party will affect the validity of such amendment. No amendment may directly or indirectly remove, revoke, or modify any right or privilege of, nor impose any obligation upon, Declarant without the written consent of Declarant. Section 10.02 Covenants to Run With the Land. Except for the easements created pursuant hereto which are hereby declared to be perpetual, the covenants, conditions, easements, reservations and restrictions in this Declaration shall run with and 3938/010/168862.4 -27- • bind the Covered Property and shall inure to the benefit of and be enforceable for a term commencing upon the date hereof and terminating fifty (50) years from the date hereof; provided, however, unless one (1) year prior to the expiration of said fifty (50) year term there shall be recorded an instrument executed by all of the Owners directing the termination of the covenants, conditions, easements, reservations and restrictions herein contained, said covenants, conditions, easements, reservations and restrictions in effect immediately prior to the expiration date of said fifty (50) year term shall be continued automatically without any further written notice for an additional period of five (5) years and thereafter for successive terms of five (5) years unless within one (1) year prior to the expiration of any such five (5) year period the covenants, conditions, easements, reservations and restrictions herein contained are terminated pursuant to this Section. All easements, restrictions, conditions, covenants and agreements contained herein are made for the direct, mutual and reciprocal benefit of each and every part and parcel of the Covered Property; shall create reciprocal rights and obligations between the respective Owners of all Lots and privities of contract and estate between all Owners of said Lots, their heirs, successors and assigns; and shall, as to the Owner of each Lot, its heirs, successors and assigns, operate as covenants running with the land for the benefit of all other Lots. Section 10.03 Governing Law. This Declaration shall be governed in accordance with the internal laws of the State of Washington. Section 10.04 Transfer of Title. Any Owner desiring to sell or otherwise transfer title to its Lot shall give the Board prior written notice of the name and address of the purchaser or transferee, the date of such transfer of title, and such other information as the Board may reasonably require. The transferor shall continue to be jointly and severally responsible with the transferee for all obligations of the Owner of the Lot, including assessment obligations, until the date upon which such notice is received by the Board, notwithstanding the transfer of title. Section 10.05 Estoppel. Upon a sale or financing of any Lot and otherwise no more than twice a year, Declarant hereby covenants and agrees on behalf of itself and each Owner, that, upon reasonable request by another Owner, an Owner and the Association shall deliver to the requesting Owner a statement specifying, to the knowledge of the certifying party, that: (i) this Declaration is in full force and effect and a binding obligation of the Owners, (ii) this Declaration has not been amended or modified, either orally or in writing, and if so amended, identifying the amendments, and (iii) there is no default by any Owner under the Declaration or, if any Owner is in default, then specifying the nature and amount (if applicable) of any and all defaults. The Association and each requested Owner shall execute and return such certificate within twenty (20) calendar days following its receipt of any such request. 3938/010/168862.4 -28- Section 10.06 Declarant's Rights Under Other Recorded Documents. Nothing herein contained shall prejudice or diminish in any way Declarant's rights under any other documents of record from time to time affecting all or any portion of the Covered Property. Section 10.07 Invalidity of Provision. If any provision of this Declaration as applied to Declarant or any Owner or to any circumstance shall be adjudged by a court of competent jurisdiction to be void or unenforceable for any reason, the same shall in no way affect (to the maximum extent permissible by law) any other provision of this instrument, the application of any such provision under circumstances different from those adjudicated by the court, or the validity or enforceability of the instrument as a whole. Section 10.08 Attorneys' Fees. In the event of the bringing of any action or suit by the Declarant or Association or any Owner(s) against any other Owner(s) arising out of this Declaration, the prevailing party or parties shall be entitled to recover from the non- prevailing party or parties all costs and expenses of the action, including reasonable attorneys' fees. As used in this Declaration, the term "attorneys' fees" shall mean the fees, costs and expenses of counsel to an Owner or the Association, as the case may be, which may include printing, photostating, duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals and other persons not admitted to the bar but performing services under the supervision of an attorney, and the costs and fees incurred in connection with the enforcement or collection of any judgment obtained in any such proceeding, and shall include, specifically, all fees, costs and expenses of expert witnesses and all court costs. Section 10.09 Assignment Rights. Declarant has the absolute right to assign its rights and obligations under this Declaration either to (a) an entity in which Declarant holds a direct or indirect interest, or (b) any other Owner (either being hereafter referred to as a "Permitted Transferee"). If the rights and obligations of Declarant hereunder shall be assigned by Declarant to a Permitted Transferee, (i) Declarant shall be released from any obligation or liability hereunder, (ii) such Permitted Transferee shall be substituted as "Declarant" hereunder and shall be entitled to the benefit of and may enforce Declarant's rights hereunder as if such Permitted Transferee were the original "Declarant" hereunder, and (iii) such Permitted Transferee shall assume all obligations and liabilities of Declarant hereunder, subject to any limitations of such liabilities and obligations hereunder or provided by law. Section 10.10 Cumulative Effect: Conflict. The covenants, restrictions, and provisions of this Declaration shall be cumulative with any additional declaration or other covenants and restrictions applicable to any Lot, and the Association may, but shall not be required to, enforce the latter. Nothing in this Section shall preclude any amendment to this Declaration or other covenants applicable to any portion of the Covered Property from 3938/010/168862.4 -29- containing additional restrictions or provisions which are more restrictive than the provisions of this Declaration, and the Association shall have the standing and authority to enforce the same. Section 10.11 Notices. Except as may otherwise be provided in this Declaration, all notices, demands, bills, statements, or other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or if sent by United States mail, first class,postage prepaid: (a) if to an Owner, at the address which the Owner has designated in writing and filed with the Secretary of the Association or, if no such address has been designated, at the address of the Lot of such Owner; or (b) if to the Association, the Board, or the managing agent, at the principal office of the Association or the managing agent or at such other address as shall be designated by notice in writing to the Owners pursuant to this Section; or (c) if to Declarant, at the address of Declarant's principal place of business in Washington or at such other address as shall be designated by notice in writing to the Owners pursuant to this Section. All notices sent in compliance with the above shall be deemed received on the third day after the date postmarked. Nothing in this Section shall invalidate notice given by personal delivery (which shall include overnight delivery service or courier service) or by any other means, if actually received by the addressee. Section 10.12 Construction. Titles or captions of Sections contained in this Declaration are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Declaration or the intent of any provision hereof. W ords and p hrases u sed i n the singular i n t his D eclaration s hall b e deemed t o include the plural and vice versa, and pronouns used in any particular gender shall be deemed to include any other gender. The word "including" shall mean, "including,but not limited to." Section 10.13 Approval Rights. Unless otherwise herein provided, whenever approval is required, such approval shall not be unreasonably withheld, delayed, or conditioned. Unless provision is made for a specific time period, approval shall be given or withheld within thirty (30) days of the receipt of the request for approval. If a written disapproval is not given within the required time period, the requested Owner, or the Association, as the case may be, shall be deemed to have given its approval. If an Owner, or the Association, as the case may be, shall disapprove, the reasons therefor shall be stated. Except with respect to an approval given by lapse of time, all approvals and disapprovals shall be in writing. 3938/010/168862.4 -30- f Section 10.14 Exhibits. The following exhibits attached hereto are, by this reference, incorporated into this Declaration, as if fully set forth: Exhibit A - Legal Description of Covered Property Exhibit B - Common Storm Water Facilities Exhibit C - Location of Signage Easements SIGNATURE ON NEXT PAGE 3938/010/168862.4 -31- IN WITNESS WHEREOF, Declarant has executed this Declaration on the date first herein above written. "Declarant" OAKESDALE COMMERCE CENTER LLC a Delaware limited liability company, By: CalSmart LLC, Series B a Delaware limited liability company its Member and Manager By: RREEF America L.L.C. a Delaware limi -• liability co :,.ny its Auth. 'zed Agent By Ross Berry,Director • 3938/010/168862.4 -32- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 4 n 4 State of California ; (e ss. >> 4 County of San Francisco Ce ;i On July 20, 2005 before me, Vilma Marania, Notary Public, %� C` Date Name and Title of Officer(e.g.,"Jane Doe,Notary Public") �� 4 personally appeared Ross T. Berry Name(s)of Signer(s) 4 4Kersonally known to me ; ❑ proved to me on the basis of satisfactory ; 4 evidence % to be the person(s) whose name(s) is/are ; 4 subscribed to the within instrument and ;� 4acknowledged to me that he/she/they executed 4 the same in ' her/their authorized ;) 4 . capacity(ies), nd that by his/her/their �"J (i; signature(s) o the instrument the person(s), or P ' VILMA fMARANIA the entityu n behalf of which the person(s) .40;‘,,,,,- P P O Pi k Commission#1449964 acted, e e tee a instruven % 4 ; S iNti Notary Public-California t 4 San FranciscoJ� - r, � .Expires County W NE': and ant offi ' :e. . " Cc• MY Comm.f xpires Nov 8,2007 - ' ; AUVROula 4 Signature of Notary Public iCQ , 4 ;i 4 OPTIONAL ; 4 Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent 4 fraudulent removal and reattachment of this form to another document. Pi i Description of Attached Document 4Title or Type of Document: Declaration of Covenants, Conditions, Rest s,ctions, 4 Easements and Reservations i << Document Date: 7/2 0/0 5 Number of Pages: 4Signer(s)Other Than Named Above: none ;� Ce ;i 4Capacity(ies) Claimed by Signer Signer's Name: Ross T. Berry ; (' RIGHT THUMBPRINT .�� OF SIGNER r. 4 ❑ Individual Top of thumb here ; 4ki Corporate Officer—Title(s): Director ; ❑ Partner—❑ Limited ❑General ; 4 LI Attorney-in-Fact • ; Ce ❑ Trustee �� 4 Guardian or Conservator �� (r; ❑ Other: �� 4 0- - • _1- C. - - C- - LLC j� 4 Signer Is Representing: Cal Smart LLC, Series B jj RREEF America L.L.C. j� 01999 National Notary Association•9350 De Soto Ave.,P.O.Box 2402•Chatsworth,CA 91313-2402•www.NationalNotary.org Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827 EXHIBIT A LEGAL DESCRIPTION OF COVERED PROPERTY LOTS 5 AND 6 IN BLOCK 6 OF BURLINGTON NORTHERN INDUSTRIAL PARK RENTON II, AS PER PLAT RECORDED IN VOLUME 111 OF PLATS, PAGE 42 THROUGH 44, RECORDS OF KING COUNTY; TOGETHER WITH THE WEST V2 OF THE FORMER 20 FOOT RAILROAD RIGHT- OF-WAY ADJOINING SAID LOTS ON THE EAST, AS DELINEATED ON THE FACE OF SAID PLAT AND AS ABANDONED UNDER RECORDING NO. 8909110687; AND TOGETHER WITH THAT PORTION OF THE 40 FOOT STRIP ADJOINING ON THE WEST WHICH IS DELINEATED ON THE FACE OF SAID PLAT AS "SPRINGBROOK CREEK GREENBELT AND PEDESTRIAN EASEMENT," WHICH LIES BETWEEN THE WESTERLY EXTENSION OF: THE NORTH LINE OF SAID LOT 6 AND THE SOUTH LINE OF SAID LOT 5; SITUATE IN THE CITY OF RENTON, COUNTY OF KING, STATE OF WASHINGTON. EXHIBIT A 3938/010/168862.4 -1- EXHIBIT B COMMON STORM WATER FACILITIES SEE ATTACHED EXHIBIT B 3938/010/168862.4 -1- COMMON STORM WATER FACILITIES(EXHIBIT B) i 4 PORTION OP SEC.25 AND 30,TOWN0HP 23 NORM, CiE RAN6 EAST,WAL f NOgg9itr'E 40' N86'2Y'2B=W • N8823'40' 498.87' s 46.39' ___� R=75.00 y - L=168.21 V. 383.16 t+l -N88'23'40'W 15.11' � �' 14'46'42' • r w.a ._ • :=75.00' R=55(q 1 CT I•l� "'z.� 1� L=168.21' L=86.88 t 43'46'42" H.....,,,i. E r" i ammo E5 ' � 90'30'22' a. 1 w �. ea. NEW SD )I moo' I I vii; a.. II���I c� NEW CB EX. CB �'I111111111I1 NEW SD � �� ::----�111111111111j § PO $ i g ,� - PA � I a 1 NOTA PART ~ � :-1. NEW rI o SDMH li W Iluu til 1, 1 ii a x EX.SD �... fI11MAN1 711. I �j EX.CB I Z ..: : . I w or€ LEGENCxwsD !: NEW MHNEW BLDG. t�Q , SCB 1 2 1 NEW-,.--,--1..... 117..!.---...—....- -"T" NEW SD i i,�' NEW STORM �..! 11111UV LF:6.43 or1f11�111111�rt(1`. 90'0213' NEW CB iii .e. ___.�ea_t.�: _- _;...s; .=' •1. NEWSDMH II SW 34th M STREET ,?,yh:±}.j:�i, ,GRANNEEWCH CONC. i! R J_,41,5/.4.. t 18215 72ND AVENUE SOUTH Job Number Sheet N 8 KENT, WA 98032 {�/�� oo NEWCURCONC. oo *„ pa.• (425) 251-6222 CML ENGINEERING, LAND PLANNING. 11010 �r'nareo eb (425) 251-8782 FAX SURVEYING. ENVIRONMENTAL SERVICES of NEW POND O O 00 M O\ M I • • l EXHIBIT C LOCATION OF SIGNAGE EASEMENTS SEE ATTACHED EXHIBIT C 3938/010/168862.4 -1- • SIGN EASEMENT EXHIBIT (EXHIBIT C) PORTIONND N OF SEC.25 A30,TOWNBE*'23 NORTH,RANGE 5 EAST,Witd 46.39' R=75.00' N00'49'10'E 401 N8627'26'W 289.90' N8623'40'W 398.87' rn m rRrmfl - L=168.21' 383.76' 143'46'42' 88Z3'40'W 15.11' /� :■ =75.00' R=55.04/ 1 I 1.1 _� =168 21' L=86.88 x 1 1 f � 01 BUI DNO ES I = 143'46'42' 90'30'22' I I : jJ!•1., _ T1100' 1ff ;io .,, I.. =_ ,,.....41 .. .-:-. g. r-itTeri14, 1 i 1 . . 0 y i a NOT A PART 2 u N f31.1 C n , Iirl r-- w 11111111111l�1�� i II IIIfiufII R. 1 I I o c I 1 m re = 1 1 ._, BULDINQ VA a. I -r 1 1LL^�1LUW r i e■ m:; .. ; L=86 a3 1 I L•_•..._'I IImm 90'0213' s �.rrar�ny: . ',:' 3X10 SIGN— • — - HEASEMENT SW 34th STREET • ,114AN, LEQEND: MUM ‘o ,csi :r18215 72ND AVENUE SOUTH _ Job Number Sheet NEW BLDG. -1 KENT, WA 98032 ^ - co NEW CONC. 00 s06 +.• (425) 251-6222 CML ENGINEERING, LAND PUNNING, 11010 CURB ;° 4).40 ENO°. (425) 251-8782 FAX SURVEYING, ENVIRONMENTAL SERVICES - of 1 NEW POND 2 0 00 M m