HomeMy WebLinkAboutL_Condo_Declaration_180629_v1.pdfTHOMAS M. HANSEN
OSERAN HAHN PS
10900 NE 4TH ST STE 1430
BELLEVUE WA 98004
DOCUMENT TITLE: DECLARATION FOR
EARLINGTON VILLAGE, A CONDOMINIUM
GRANTOR: Polygon WLH, LLC
a Washington limited liability company
GRANTEE: Polygon WLH, LLC, LLC
a Washington limited liability company
LEGAL DESCRIPTION: A PTN OF LOTS 5 AND 6, BLOCK 10, EARLINGTON
ACRE TRACTS, ACCORDING TO THE PLAT THEREOF,
VOL15, PG 84, RENTON, KING COUNTY WASHINGTON
Additional legal description is on Page 66 & 67 of document.
TAX PARCEL NO(S): 214480028502, 214480029500, 214480048708
THE SURVEY MAP AND PLANS OF THE CONDOMINIUM REFERRED TO HEREIN
WAS FILED WITH THE RECORDER OF KING COUNTY, WASHINGTON
SIMULTANEOUSLY WITH THE RECORDING OF THIS DECLARATION UNDER FILE
NO. ______________________________.
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TABLE OF CONTENTS
ARTICLE 1 - INTERPRETATION .................................................................................... 1
1.1 Liberal Construction .................................................................................... 1
1.2 Consistent With Act .................................................................................... 1
1.3 Covenant Running With Land ..................................................................... 1
1.4 Percentage of Owners and Mortgagees ..................................................... 2
1.5 Declarant Is Original Owner ........................................................................ 2
1.6 Captions and Exhibits ................................................................................. 2
1.7 Inflationary Increase in Dollar Limits ........................................................... 2
1.8 Definitions. .................................................................................................. 2
1.9 Construction and Validity. ........................................................................... 8
ARTICLE 2 - DESCRIPTION OF LAND; DEVELOPMENT IN PHASES ......................... 8
2.1 Description of Land .................................................................................... 8
2.2 Development in Phases ............................................................................. 9
2.3 Improvements in Subsequent Phases ....................................................... 9
2.4 Liens .......................................................................................................... 9
2.5 Election to Withdraw Land ......................................................................... 9
2.6 Expiration of Development Rights ............................................................ 10
ARTICLE 3 - DESCRIPTION OF UNITS ....................................................................... 10
3.1 Number of Units ........................................................................................ 10
3.2 Unit Number ............................................................................................. 10
3.3 Unit Description ........................................................................................ 10
3.4 Access to Common Ways and Public Streets ........................................... 10
ARTICLE 4 - UNIT BOUNDARIES ................................................................................ 10
ARTICLE 5 - DESCRIPTION OF OTHER IMPROVEMENTS ....................................... 11
ARTICLE 6 - DESCRIPTION OF COMMON ELEMENTS AND FACILITIES
CERTAIN ITEMS MAY BE MADE OWNER'S RESPONSIBILITY ................ 11
ARTICLE 7 - DESCRIPTION OF LIMITED COMMON ELEMENTS.............................. 11
7.1 Description ................................................................................................ 11
7.2 Reservation of Use ................................................................................... 12
7.3 Parking Spaces......................................................................................... 12
7.4 Conversion of Common Element to Limited Common Element ................ 12
7.5 Conversion of Limited Common Element to Common Element ................ 12
7.6 Incorporation of Limited Common Element Into Unit ................................ 13
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ARTICLE 8 - ALLOCATED INTERESTS ....................................................................... 13
ARTICLE 9 - OWNERS ASSOCIATION ....................................................................... 13
9.1 Form of Association. ................................................................................. 13
9.2 Membership. ............................................................................................. 13
9.3 Adoption of Bylaws of Association ............................................................ 13
9.4 Voting ....................................................................................................... 14
ARTICLE 10 - MANAGEMENT OF CONDOMINIUM .................................................... 14
10.1 Administration of the Condominium. ......................................................... 14
10.2 Management By Board. ............................................................................ 14
10.3 Authority of the Association. ..................................................................... 14
10.4 Borrowing by Association ......................................................................... 17
10.5 Association Records and Funds. .............................................................. 18
10.6 Association as Trustee ............................................................................. 18
10.7 Common Elements, Conveyance and Encumbrance. .............................. 19
10.8 Termination of Contracts and Leases ....................................................... 19
10.9 Association Dispute Resolution. ............................................................... 20
10.10 Association Inspections ............................................................................ 23
10.11 Building Enclosure Inspection ................................................................... 24
ARTICLE 11 - USE; REGULATION OF USES; ARCHITECTURAL UNIFORMITY ...... 24
11.1 Residential Units ....................................................................................... 24
11.2 Vehicle Parking Restrictions ..................................................................... 25
11.3 Common Drives and Walks ...................................................................... 25
11.4 Maintenance of Common Elements and Units. ......................................... 25
11.5 Alteration of Units ..................................................................................... 26
11.6 Maintenance of Limited Common Elements ............................................. 26
11.7 Exterior Appearance ................................................................................. 27
11.8 Effect on Insurance ................................................................................... 28
11.9 Signs ......................................................................................................... 28
11.10 Pets .......................................................................................................... 28
11.11 Offensive Activity ...................................................................................... 28
11.12 Common Element Alterations ................................................................... 28
11.13 Regulations of Use - Association Rules. ................................................... 29
11.14 Tenant Evictions ....................................................................................... 30
11.15 Rental Units .............................................................................................. 29
11.16 Front Yard Area Maintenance ................................................................... 31
11.17 Satellite Dishes. ........................................................................................ 31
11.18 Special Unit Owner and Association Maintenance Obligations ................ 31
11.19 Restricted Activities .................................................................................. 31
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ARTICLE 12 - COMMON EXPENSES AND ASSESSMENTS ...................................... 31
12.1 Estimated Expenses ................................................................................. 31
12.2 Payment by Owners ................................................................................. 32
12.3 Commencement of Assessments ............................................................. 32
12.4 Allocated Liability ...................................................................................... 32
12.5 Limited Common Element ........................................................................ 32
12.6 Only Some Units Benefited ....................................................................... 33
12.7 Insurance Costs ........................................................................................ 33
12.8 Utility Costs ............................................................................................... 33
12.9 Assessments for Judgment ...................................................................... 33
12.10 Owner Misconduct .................................................................................... 33
12.11 Reallocation .............................................................................................. 33
12.12 Lien for Assessments. .............................................................................. 33
12.13 Acceleration of Assessments .................................................................... 36
12.14 Delinquent Assessment Deposit; Working Capital. ................................... 36
12.15 Special Charges for Services Provided to Unit Owners ............................ 37
12.16 Assessments and Reserves ..................................................................... 38
12.17 Costs Relating to Portion of Condominium Subject to Development
Rights ........................................................................................................ 39
ARTICLE 13 - INSURANCE .......................................................................................... 38
13.1 General Requirements .............................................................................. 38
13.2 Property Insurance ................................................................................... 39
13.3 Commercial General Liability Insurance ................................................... 39
13.4 Fidelity Insurance...................................................................................... 40
13.5 Insurance Trustee; Power of Attorney ...................................................... 40
13.6 Additional Policy Provisions ...................................................................... 40
13.7 Owner’s Individual Insurance .................................................................... 41
13.8 Insurance Proceeds. ................................................................................. 42
ARTICLE 14 - DAMAGE OR DESTRUCTION; RECONSTRUCTION ........................... 42
14.1 Definitions; Significant Damage; Repair; Emergency Work. ..................... 42
14.2 Initial Board Determinations ...................................................................... 43
14.3 Notice of Damage or Destruction. ............................................................. 44
14.4 General Provisions. .................................................................................. 44
14.5 Restoration By Board ................................................................................ 44
14.6 Decision to Terminate ............................................................................... 45
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ARTICLE 15 - CONDEMNATION.................................................................................. 45
15.1 In General ................................................................................................. 45
15.2 Partial Unit Condemnation ........................................................................ 45
15.3 Common Element Condemnation ............................................................. 45
15.4 Recording of Judgment ............................................................................. 46
15.5 Association to Represent Owners............................................................. 46
ARTICLE 16 - COMPLIANCE WITH DECLARATION ................................................... 46
16.1 Enforcement ............................................................................................. 46
16.2 No Waiver of Strict Performance .............................................................. 46
ARTICLE 17 - LIMITATION OF LIABILITY .................................................................... 47
17.1 Liability for Utility Failure, Etc .................................................................... 47
17.2 No Personal Liability ................................................................................. 47
17.3 Indemnification of Board Members ........................................................... 47
ARTICLE 18 - MORTGAGEE PROTECTION ............................................................... 48
18.1 Change in Manager .................................................................................. 48
18.2 Abandonment of Condominium Status ..................................................... 48
18.3 Partitions and Subdivision ........................................................................ 48
18.4 Change in Percentages ............................................................................ 49
18.5 Copies of Notices...................................................................................... 49
18.6 Effect of Declaration Amendments ........................................................... 49
18.7 Insurance. ................................................................................................. 49
18.8 Inspection of Books .................................................................................. 50
18.9 Response to Notice .................................................................................. 51
18.10 Approval by Veterans Administration ........................................................ 51
ARTICLE 19 - EASEMENTS ......................................................................................... 51
19.1 General ..................................................................................................... 51
19.2 Utility, Road and Other Easements........................................................... 52
19.3 Association Functions. .............................................................................. 52
19.4 Encroachments ......................................................................................... 53
19.5 Easements Reserved by the Declarant .................................................... 53
ARTICLE 20 - PROCEDURES FOR SUBDIVIDING OR COMBINING ......................... 54
20.1 Owner Proposal ........................................................................................ 54
20.2 Owner/Mortgagee Approval ...................................................................... 54
20.3 Survey Map and Plans .............................................................................. 54
20.4 Allocated Interests .................................................................................... 54
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ARTICLE 21 - AMENDMENT OF DECLARATION, SURVEY MAP AND PLANS,
OR BYLAWS ................................................................................................ 54
21.1 In General ................................................................................................. 54
21.2 Procedure for Proposing and Adopting Amendments ............................... 55
21.3 Percentage Approval Required for Amendments ..................................... 55
21.4 Challenge to Validity ................................................................................. 56
21.5 Execution and Recording .......................................................................... 56
21.6 Special Declarant/Development Rights .................................................... 56
21.7 Survey Map and Plans Amendment ......................................................... 56
21.8 Lender Requirements ............................................................................... 57
ARTICLE 22 - MISCELLANEOUS ................................................................................ 57
22.1 Service of Process .................................................................................... 57
22.2 Notices for All Purposes. .......................................................................... 57
22.3 Mortgagee's Acceptance. ......................................................................... 58
22.4 Severability. .............................................................................................. 58
22.5 Conveyance; Notices Required. ............................................................... 59
22.6 Transfer of Declarant's Powers. ................................................................ 60
22.7 Effective Date. .......................................................................................... 60
22.8 Reference to Survey Map and Plans ........................................................ 60
ARTICLE 23 - SPECIAL DECLARANT RIGHTS; DEVELOPMENT RIGHTS ............... 59
23.1 Special Declarant Rights .......................................................................... 59
23.2 Development Rights. ................................................................................ 60
23.3 Liability for Damage .................................................................................. 62
23.4 Declarant's Easements ............................................................................. 62
EXHIBIT A ..................................................................................................................... 65
EXHIBIT B ..................................................................................................................... 67
EXHIBIT C ..................................................................................................................... 70
EXHIBIT D ..................................................................................................................... 71
EXHIBIT E ..................................................................................................................... 72
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DECLARATION
AND
COVENANTS, CONDITIONS, RESTRICTIONS AND RESERVATIONS
FOR
EARLINGTON VILLAGE, A CONDOMINIUM
Pursuant to the Act defined in Section 1.8.1 and for the purpos e of submitting the
Property hereinafter described (including the Land described in Exhibit A) to the
provisions of said Act, the undersigned, being sole owner(s) of said Property, make the
following Declaration. By acceptance of a conveyance, contract fo r sale, lease, rental
agreement, or any form of security agreement or instrument, or any privileges of uses or
enjoyment, respecting the Property or any Unit created by this Declaration, it is agreed
that this Declaration, together with the Survey Map and Plans referred to herein, states
covenants, conditions, restrictions and reservations effecting a common plan for the
Condominium development mutually beneficial to all of the described Units; and the
covenants, conditions, restrictions, reservations and plan are binding upon the entire
Property and upon each such Unit as a parcel of realty, and upon its owners or
possessors, and their heirs, personal representatives, successors and assigns, through
all successive transfers of all or part of the Property or any security interests therein,
without requirement of further specific reference or inclusion in deeds, contracts or
security instruments and regardless of any subsequent forfeitures, foreclosures, or sales
of Units under security instruments.
ARTICLE 1 -
INTERPRETATION
1.1 Liberal Construction. The provisions of this Declaration shall be liberally
construed to effectuate its purpose of creating a uniform plan for the development and
operation of this Project under the provisions of Washington law. It is intended and
covenanted also that, insofar as it affects this Declaration and Condominium, the
provisions of the Act under which this Declaration is operative shall be liberally construed
to effectuate the intent of this Declaration insofar as reasonably pos sible.
1.2 Consistent With Act. The terms used herein are intended to have the
same meaning given in the Act unless the context clearly requires otherwise or to so
define the terms would produce an illegal or improper result.
1.3 Covenant Running With Land. It is intended that this Declaration shall be
operative as a set of covenants running with the land, or equitable servitudes, binding on
Declarant, its successors and assigns, all subsequent Owners of the Property, together
with their grantees, successors, heirs, executors, administrators, devisees or assigns,
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supplementing and interpreting the Act, and operating independently of the Act should
the Act be inapplicable in any respect.
1.4 Percentage of Owners and Mortgagees. For purposes of determining the
percentage of Owners or Mortgagees, or percentage of voting power for, approving a
proposed decision or course of action in cases where an Owner owns, or a Mortgagee
holds Mortgages on, more than one Unit, such Owner shall be deemed a separate Owner
for each such Unit so owned, and such Mortgagee shall be deemed a separate Mortgagee
for each such first Mortgage so held.
1.5 Declarant Is Original Owner. Declarant is the original Owner of all Unit`s
and Property and will continue to be deemed the Owner thereof except as conveyances
or documents changing such ownership regarding specifically described Units are
recorded.
1.6 Captions and Exhibits. Captions given to the various Articles and
Sections herein are for convenience only and are not intended to modify or affect the
meaning of any of the substantive provisions hereof. The various exhibits referred to
herein and attached hereto shall be deemed incorporated herein by reference as though
fully set forth where such reference is made.
1.7 Inflationary Increase in Dollar Limits. The dollar amounts specified in this
Declaration in connection with any proposed action or decision of the Board or
Association may, in the discretion of the Board, be increased proportionately by the
increase in the Consumer Price Index for the City of Seattle, Washington For All Urban
Consumers, prepared by the United States Department of Labor for the base period,
January 1, of the calendar year following the year in which the Declaration was recorded,
to adjust for any deflation in the value of the dollar.
1.8 Definitions.
1.8.1 "The Act" means the Washington Condominium Act, Laws of
1990, RCW 64.34, as amended.
1.8.2 "Allocated Interests" means those undivided interests in the
Common Elements, and the Common Element Expense Liability allocated to each Unit
more particularly provided for in Article 8 and as shown on Exhibit C.
1.8.3 "Assessment" means all sums chargeable by the Association
against a Unit, including without limitation: (a) regular and special Assessments for
Common Expenses, charges and fines imposed by t he Association; (b) interest and late
charges on any delinquent account; and (c) costs of collection, including reasonable
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attorneys' fees, incurred by the Association in connection with the collection of a
delinquent Owner's account.
1.8.4 "Association" means EARLINGTON VILLAGE CONDOMINIUM
ASSOCIATION, comprising all of the Unit Owners acting as a group in accordance with
the Bylaws and with this Declaration as it is duly recorded and as they may be lawfully
amended, which Association is more particularly provided for in Article 9.
1.8.5 "Board" means the Board of Directors of the Association
provided for in Section 10.1.
1.8.6 "Books and Records of the Association" shall be given the
broadest possible meaning and shall include, without limitation, exception or qualification,
the following:
(a) Declaration, Survey Map and Plans, Articles of
Incorporation, Bylaws and other rules and regulations governing the Condominium
(or any part thereof), and all Amendments thereto;
(b) Minute books, including all minutes of all Owner, Board,
officer, committee or other meetings relating to the Condominium (or any part
thereof), including all reports, documents, communications or written instruments
attached thereto or referenced therein;
(c) All financial records, including, without limitation, canceled
checks, bank statements and financial statements of the Association, and source
documents from the time of incorporation of the Association through the current
date;
(d) All reports, documents, communications or written
instruments pertaining to the personal property of the Association or the
Condominium (or any part thereof);
(e) All reports, documents, communications, written
instruments, plans and specifications pertaining to the construction, remodeling,
maintenance, repair, replacement or condition of the Condominium (or any part
thereof);
(f) All insurance policies or copies thereof for the
Condominium (or any part thereof) and Association;
(g) Copies of any Certificates of Occupancy that may have
been issued for the Condominium (or any part thereof);
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(h) Any other permits or notices issued by governmental
bodies applicable to the Condominium (or any part thereof) in force or issued;
(i) All written warranties that are still in effect for the
Condominium (or any part thereof), or any o ther areas or facilities which the
Association has the responsibility to maintain and repair, from the Declarant,
contractor, subcontractors, suppliers and manufacturers, together with all owners'
manuals or instructions furnished with respect to installed equipment or building
systems;
(j) A roster of Owners, officers and Board members and
eligible Mortgagees, and their addresses and telephone numbers, if known;
(k) Any leases of the Common Elements or Areas and other
leases to which the Association is a party; any employment, service, consultation,
professional or other contracts in which the Association, Board or an officer is one
of the contracting parties, or in which the Association or the Owners have an
obligation or a responsibility, directly or indirectly, to pay some or all of the fee or
charge, or which in any way relate to the Condominium (or any part thereof);
(l) All reports, documents, communications or written
instruments pertaining to any litigation or other legal or mediation/arbitration
proceeding (whether pending, threatened or under consideration) to which the
Association (or Board, officer or Owner) is or may be a party, or which may relate
to or affect the Condominium (or any part thereof); and
(m) All other reports, documents, communications or written
instruments in any way relating to or affecting the Association, Board, officers,
Owners or the Condominium (or any part thereof).
1.8.7 "Bylaws" shall mean the Bylaws of the Association provided for
in Section 9.3.
1.8.8 "Common Elements" means all portions of the Condominium
other than the Units.
1.8.9 "Common Expenses" shall include all sums lawfully assessed
against Owners by the Association and expenses of administration, maintenance, repair
or replacement of the Common Elements declared to be Common Expenses by the Act,
this Declaration or the Bylaws (as they may be lawfully amended), and agreed upon as
Common Expenses by the Association.
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1.8.10 "Common Expense Liability" means the liability for Common
Expenses allocated to each Unit pursuant to Article 8.
1.8.11 "Condominium" means the Condominium created by this
Declaration and related Survey Map and Plans pursuant to the Act.
1.8.12 "Declarant" means any person who (a) executed this
Declaration as Declarant, or (b) reserves or succeeds to any Special Declarant Right
under the Declaration.
1.8.13 "Declarant Control" means the right, if expressly reserved by
either this Declaration or the Bylaws, of the Declarant or persons designated by the
Declarant to appoint and remove Association officers and Board members, or to vote or
approve a proposed action of the Board or Association; provided, in no event shall
exercising the voting rights allocated to a Unit or Units owned by the Declarant be deemed
"Declarant Control."
1.8.14 "Declaration" means this Declaration and any Amendments
thereto.
1.8.15 "Development Rights" means rights reserved for the benefit of
Declarant as specified in Section 23.2 below.
1.8.16 "Dispose" or "Disposition" means a voluntary transfer or
conveyance to a purchaser or lessee of any legal or equitable interest in a Unit, bu t does
not include the transfer or release of the security interest.
1.8.17 "Eligible Mortgagee" means a Mortgagee of a Unit or the
Mortgagee of the Condominium that has filed with the Secretary of the Association a
written request that it be given copies of notices of any action by the Association that
requires the consent of Mortgagees.
1.8.18 "Extraordinary Actions" means any of the following:
(a) Merging or consolidating the Association;
(b) Determining not to require professional management if
that management has been required by the Association documents, a majority of
Eligible Mortgagees or a majority of the Members;
(c) Abandoning, partitioning, encumbering, mortgaging,
conveying, selling or otherwise transferring or relocating the boundaries of
Common Elements (except for (i) granting easements which are not inconsistent
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with or which do not interfere with the intended use of the Common Elements,
(ii) dedicating Common Elements as required by a public authority, (iii) limited
boundary line adjustments made in accordance with the provisions of the
Declaration, or (iv) transferring Common Elements pursuant to a merger or
consolidation with a non-profit entity formed for purposes similar to the subject
Association);
(d) Using insurance proceeds for purposes other than
construction or repair of the insured improvements; or
(e) Making capital expenditures (other than for repair or
replacement of existing improvements) during any period of twelve (12)
consecutive months costing more than twenty percent (20%) of the Association’s
annual operating budget.
1.8.19 "Foreclosure" means a forfeiture or judicial or non-judicial
foreclosure of a Mortgage or a deed in lieu thereof.
1.8.20 "Identifying Number" means a symbol or address that identifies
only one Unit in the Condominium.
1.8.21 "Limited Common Element" means a portion of the Common
Elements allocated by this Declaration (or by subsequent Amendments thereto) or by
operation of law for the exclusive use of one or more but fewer than all of the Units as
provided in Article 7.
1.8.22 "Manager" means the person retained by the Board, if any, to
perform such management and administrative functions and duties with respect to the
Condominium as are delegated to such person and as are provided in a written
agreement between such person and the Association.
1.8.23 "Mortgage" means a mortgage or deed of trust that creates a
lien against a Unit, and also means a real estate contract for the sale of a Unit.
1.8.24 "Mortgagee" means the beneficial owner, or the designee of a
beneficial owner, of an encumbrance on a Unit created by mortgage or deed of trust, and
also means the vendor, or the designee of a vendor, of a real estate contract for the sale
of a Unit. A Mortgagee of the Condominium and a Mortgagee of a Unit are included within
the definition of Mortgagee.
1.8.25 "Non-Residential Purposes" means any use other than
Residential Purposes.
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1.8.26 "Notice and Opportunity to be Heard" means the procedure set
forth in the Bylaws.
1.8.27 "Person" means natural persons, partnerships, corporations,
associations, personal representatives, trustees or other legal entities.
1.8.28 "Phase 1" means the first Phase of the Condominium,
consisting of all of the land described in Exhibit A and the four (4) Units in Building 3, all
as shown on the Survey Map and Plans, and the Limited Common Elements assigned
thereto under this Declaration.
1.8.29 "Renting or Leasing" a Unit means the granting of a right to use
or occupy a Unit, for a specified term or indefinite term (with rent reserved on a periodic
basis), in exchange for the payment of rent (that is, money, property or other goods o r
services of value); but shall not mean and include joint ownership of a Unit by means of
joint tenancy, tenancy-in-common or other forms of co-ownership.
1.8.30 "Residential Purposes" means use for dwelling or recreational
purposes, or both.
1.8.31 "Special Declarant Rights" means any rights reserved for the
benefit of Declarant as specified in Section 23.1 below.
1.8.32 "Subsequent Phase" means the creation by the Declarant of
additional Units and associated Limited Common Elements on all or a portion of the
Subsequent Phase Property pursuant to Article 2.
1.8.33 "Subsequent Phase Amendment" means an Amendment to this
Declaration recorded by the Declarant creating Units and Limited Common Elements on
the Subsequent Phase Property pursuant to Article 2.
1.8.34 "Subsequent Phase Property" means that portion of the real
property initially included in the Condominium upon which the Declarant has the right to
create Units and assign Limited Common Elements or to withdraw, as described in
Exhibit A and shown on the Survey Map and Plans, as it may be amended upon the
creation of Units in a Subsequent Phase.
1.8.35 "Survey Map and Plans" means the Survey Map and the Plans
recorded simultaneously with this Declaration and any Amendments, corrections and
addenda thereto subsequently recorded.
1.8.36 "Unit" means a portion of the Condominium designated for
separate ownership, the boundaries of which are described pursuant to Article 4.
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1.8.37 "Unit Owner" or "Owner" means a Declarant or other person
who owns a Unit, but does not include a person who has an interest i n a Unit solely as
security for an obligation, or is merely "renting" or "leasing" a Unit as defined in
Section 1.8.28. "Unit Owner" means the vendee, not the vendor, of a Unit under a real
estate contract.
1.8.38 "Use" or "Purpose," when used in conjunction with phrases
such as (a) "residential or non-residential use or purpose," (b) "restricted to residential or
non-residential use or purpose," (c) "use to which a Unit is restricted," (d) "Units shall be
used for" or (e) "use or purpose authorized by this Declaration," shall have the meaning
commonly used in zoning codes that establish, classify, regulate, restrict or segregate the
uses or types of uses permitted on land, water, buildings or other improvements thereto.
1.9 Construction and Validity.
1.9.1 In the event of a conflict between the provisions of the
Declaration and the Bylaws, the Declaration prevails, except to the extent the Declaration
is inconsistent with the Act. The creation of this Condominium shall not be impaired and
title to the Units and Common Elements shall not be rendered unmarketable or otherwise
affected by reason of an insignificant failure of the Declaration or Survey Map and Plans
or any Amendment thereto to comply with the Act.
1.9.2 If the Declaration or Bylaws now or hereafter provide that any
officers or directors of the Association must be Unit Owners, then notwithstanding the
definition contained in Section 1.8.37, the term "Unit Owner" in such context shall, unless
the Declaration or Bylaws otherwise provide, be deemed to include any director , officer,
partner in or trustee of any person who is, either alone or in conjunction with another
person or person, a Unit Owner. Any officer or director of the Association who would not
be eligible to serve as such if they were not a director, officer, partner in or trustee of such
a person shall be disqualified from continuing in office if they cease to have any such
affiliation with that person, or if that person would have been disqualified from continuing
in such office as a natural person.
ARTICLE 2 -
DESCRIPTION OF LAND; DEVELOPMENT IN PHASES
2.1 Description of Land. The real property initially included in the
Condominium is described in Exhibit A, Section 1. The Declarant reserves the right to
withdraw from the Condominium all or a portion of the Sub sequent Phase Property. In
that connection, the Declarant reserves the right to execute, on behalf of the Unit Owners
and the Association, any applications to governmental agencies or other documents or
instruments necessary to establish the Subsequent Ph ase Property, or portion thereof
that the Declarant desires to withdraw as a legal lot.
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2.2 Development in Phases. The Declarant intends to develop the
Condominium in Phases on the land described in Exhibit A. Phase 1 consists of the four
(4) Units located in Building 3, all as listed in Exhibit C and as shown on the Survey Map
and Plans. The Declarant may create up to an additional fifty-six (56) Units in one or
more Subsequent Phases by (a) recording an Amendment to Exhibit A to remove that
portion of the real property upon which the Units being created are located from the
Subsequent Phase Property; (b) recording an Amendment to Exhibit B listing all of the
Units in the Condominium, including those being created, together with all of the
information called for by that schedule; (c) recording an Amendment to Exhibit C
reallocating the Allocated Interests among all of the Units in accordance with Article 8 and
Exhibit C; and (d) filing an Amendment to the Survey Map and Plans showing the Units
created by that Phase and the Limited Common Elements assigned thereto and any
remaining Subsequent Phase Property.
2.3 Improvements in Subsequent Phases. The improvements added to the
property in a Subsequent Phase shall be consistent with the improvements in Phase 1 in
terms of structure type and quality of construction. All Units in each Phase shall be
substantially completed before they are added to the Condominium. The Declarant shall
be the beneficial Owner of all improvements on the Subsequent Phase Property until
Units have been created thereon, and the Declarant shall be the Owner of the Units
thereby created until they are conveyed by the Declarant.
2.4 Liens. Any liens that arise in connection with the Declarant's ownership
of or construction of improvements on the Subsequent Phase Property shall attach only
to the Declarant's interest in any Units owned by the Declarant or against the Declarant's
Development Rights and Special Declarant Rights and shall not adversely affect the rights
of other Unit Owners or the priority of Mortgages on the Units. All taxes and costs relating
to improvements on the Subsequent Phase Property before the Units therein have been
created shall be paid by or allocated to the Declarant.
2.5 Election to Withdraw Land. The Declarant may at any time or times elect
to withdraw from the Condominium all or a portion of the Subsequent Phase Property, as
it may be described in Exhibit A at that time, by (a) recording a notice of withdrawal signed
only by the Declarant which describes the land being withdrawn; (b) recording an
Amendment to Exhibit A describing the land remaining in the Condominium; (c) recording
an Amendment to Exhibit A describing any remaining land subject to Development
Rights; and (d) filing an Amendment to the Survey Map and Plans showing the land
remaining in the Condominium. At the time Declarant elects to withdraw land from the
Condominium, Declarant may reserve for the benefit of such land the right to use the
Common Elements of the Condominium by recording an Amendment to the Declaration
providing the terms of such use and any special costs or fees which will be charged for
such use.
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2.6 Expiration of Development Rights. The Development Rights specified
herein shall terminate on the earlier of (a) the seventh (7th) anniversary of the recording
of this Declaration, or (b) the recording of a notice signed by the Declarant that it no longer
wishes to exercise any of the Development Rights.
ARTICLE 3 -
DESCRIPTION OF UNITS
Either Exhibits B or C, or both, attached hereto set forth the following:
3.1 Number of Units. The number of Units which Declarant has created and
reserves the right to create.
3.2 Unit Number. The Identifying Number of each Unit created by this
Declaration.
3.3 Unit Description. With respect to each existing Unit:
3.1.1 The approximate square footage;
3.1.2 The number of bathrooms, whole or partial, in any Unit;
3.1.3 The number of rooms designated primarily as bedrooms in any
Unit;
3.1.4 The number of built-in fireplaces in any Unit; and
3.1.5 The level or levels on which each Unit is located.
3.4 Access to Common Ways and Public Streets. Each Unit has access to
South 132nd Street pursuant to a perpetual easement for ingress and egress over the
drive aisle situated on the property directly to the west of the Condominium.
ARTICLE 4 -
UNIT BOUNDARIES
The boundaries of a Unit are the unfinished interior surfaces of its perimeter walls,
floors, ceilings, windows and doors, and the Unit includes both the portions of the Building
so described and the air space so encompassed. The perimeter boundaries of all Un its
are as located and depicted on the Survey Map and Plans. The vertical boundaries of
each Unit are also as located and depicted on the Survey Map and Plans. The term
"interior surfaces" shall not include paint, wallpaper, paneling, carpeting, tiles or other
such decorative surface coverings or finishes. Said decorative finishes and coverings,
along with fixtures and other tangible personal property (including furniture, planters,
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mirrors and the like) located in and used in connection with said Unit or Limited Common
Element, shall be deemed a part of said Unit or Limited Common Element.
ARTICLE 5 -
DESCRIPTION OF OTHER IMPROVEMENTS
Exhibit B attached hereto describes the recreational facilities, the number of
covered, uncovered and garage parking spaces, and other improvements included in the
Condominium.
ARTICLE 6 -
DESCRIPTION OF COMMON ELEMENTS AND FACILITIES
CERTAIN ITEMS MAY BE MADE OWNER'S RESPONSIBILITY
The Common Elements consist of all portions of the Condominium except U nits
and the Limited Common Elements, including all portions of the walls, floors or ceilings
that are not a part of or within the boundaries of a Unit. The Common Elements also
include any chute, flue, duct, wire, conduit, bearing wall or column, or any other fixture
which lies partially within and partially outside the designated boundaries of a Unit and
which serves more than one Unit or any portion of the Common Elements.
ARTICLE 7 -
DESCRIPTION OF LIMITED COMMON ELEMENTS
7.1 Description. Each Limited Common Element forms a portion of the
Property legally described herein and shall consist of the following, all of which, to the
extent not otherwise stated, are reserved for the exclusive use of the Unit Owner of the
Unit to which they are the most immediately adjacent or are herein assigned:
7.1.1 All portions of the Property designated as Limited Common
Elements by the Act or this Declaration, including the Limited Common Elements
described in Exhibit B;
7.1.2 If any chute, flue, duct, wire, conduit, bearing wall, bearing
column, or any other fixture lies partially within and partially outside the designated
boundaries of a Unit, any portion thereof serving only that Unit is a Limited Common
Element allocated solely to the Unit, and any portion thereof serving more than one Unit
or any portion of the Common Elements is a part of the Common Elements; and
7.1.3 Any shutters, awnings, window boxes, door-steps, stoops,
porches, balconies, patios, and all exterior doors and windows or other fixtures designed
to serve a single Unit, but which are located outside that Unit’s boundaries.
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7.2 Reservation of Use. Except as otherwise stated herein, the Limited
Common Elements are reserved for the exclusive use of the Units to which they are
assigned in the Act and this Declaration and such Unit Owners’ respective tenants,
invitees and licensees. No portion of any of the Property may be reallocated as Limited
Common Elements, except as provided in this Declaration or the Act.
7.3 Parking Spaces.
7.3.1 Number and Location. The number of parking spaces is
indicated in Exhibit B. The Identifying Numbers and locations of the garage located in the
Condominium are shown on the Survey Map and Plans.
7.3.2 Rights to Use. Subject to this Declaration and applicable Rules,
each Unit Owner has the unqualified and exclusive right to use the garage parking space
assigned to its Unit as a Limited Common Element.
7.4 Conversion of Common Element to Limited Common Element. The
Owners of the Units to which at least sixty-seven percent (67%) of the voting power,
including the Owner of the Unit to which the Limited Common Element will be assigned,
must agree to convert a Common Element to a Limited Common Element. Such
conversion shall be reflected in an amendment to this Declaration and Survey Map and
Plans. This Section shall not apply to any such conversion made as a result of the
exercise of any right reserved by the Declarant in this Declaration to assign and create
Limited Common Elements in garage parking spaces.
7.5 Conversion of Limited Common Element to Common Element. The
Owners of the Units to which at least sixty-seven percent (67%) of the voting power,
including the Owner of the Unit to which the Limited Common Element has been
assigned, must agree to convert a Limited Common Element to a Common Element.
Such conversion shall be reflected in an amendment to this Declaration and Survey Map
and Plans. This Section shall not apply to any such conversion made as a result of the
exercise of any right reserved by the Declarant in this Declaration to a ssign and create
Limited Common Elements in garage parking spaces.
7.6 Incorporation of Limited Common Element Into Unit . The Owners of the
Units to which at least sixty-seven percent (67%) of the voting power, including the Owner
of the Unit to which the Limited Common Element will be incorporated, must agree to
incorporate a Limited Common Element into an existing Unit. Such incorporation shall
be reflected in an amendment to this Declaration and the Survey Map and Plans. This
Section shall not apply to any such reallocation made as a result of the exercise of any
right reserved by the Declarant in this Declaration to assign and create Limited Common
Elements in parking spaces.
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ARTICLE 8 -
ALLOCATED INTERESTS
“Allocated Interests” means the allocation of interest in the Common Elements, the
Common Expense Liability and voting, if applicable, set forth in Exhibit C attached hereto.
The Allocated Interest pertaining to each Unit cannot be changed except as provided in
this Declaration. The Allocated Interest and the title to the respective Units shall not be
separated or separately conveyed, and each Allocated Interest shall be deemed to be
conveyed with its respective Unit even though the description in the instrument of
conveyance or encumbrance may refer only to the title to the Unit.
ARTICLE 9 -
OWNERS ASSOCIATION
9.1 Form of Association. The Association shall be organized as a non-profit
corporation and shall be known as "EARLINGTON VILLAGE CONDOMINIUM
ASSOCIATION." The Association will be organized no la ter than the date the first Unit in
the Condominium is conveyed. The Association will be governed by the Board,
comprised of the number of members specified in the Bylaws. The rights and duties of
the Board and Association shall be governed by the provisions of the Act, the Declaration
and the Bylaws.
9.2 Membership.
9.2.1 Qualification. Each Owner (including Declarant) shall be a
member of the Association and shall be entitled to one (1) membership for each Unit so
owned; provided that, if a Unit has been sold on contract, the contract purchaser shall
exercise the rights of the Unit Owner for purposes of the Association, this Declaration and
the Bylaws, except as hereinafter limited. Ownership of a Unit shall be the sole
qualification for membership in the Association.
9.2.2 Transfer of Membership. The Association membership of each
Owner (including Declarant) shall be appurtenant to the Unit giving rise to such
membership, and shall not be assigned, transferred, pledged, hypothecated, conveyed
or alienated in any way except upon the transfer of title to said Unit, and then only to the
transferee of title to such Unit. Any attempt to make a prohibited transfer shall be void.
Any transfer of title to a Unit shall operate automatically to transfer the membership in the
Association appurtenant thereto to the new Owner thereof.
9.3 Adoption of Bylaws of Association. Bylaws (and Amendments thereto) for
the administration of the Association and the Property, and for other purposes not
inconsistent with the Act or with the intent of this Declaration, shall be adopted by the
Association. Declarant will adopt initial Bylaws.
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9.4 Voting. The total voting power of all Owners when all Phases are
established shall be sixty (60) votes, provided that the total voting power will be adjusted
to match the total number of Units actually included in the Condominium. Until all Phases
are established, the total voting power of all Owners shall be equal to the number of Units
then part of the Condominium. At all times, each Unit Owner shall have one (1) vote for
each Unit owned. The rights and processes for holding and conducting meetings of the
Association, and voting at any such meetings, are all set forth in the Bylaws.
ARTICLE 10 -
MANAGEMENT OF CONDOMINIUM
10.1 Administration of the Condominium. The Unit Owners covenant and
agree that the administration of the Condominium shall be in accordance with the
provisions of this Declaration and the Bylaws of the Association which are made a part
hereof.
10.2 Management By Board.
10.2.1 On Behalf of Association. Except as otherwise provided in this
Declaration, the Bylaws, Section 10.3.2 below or the Act, the Board shall act in all
instances on behalf of the Association. In the performance of their duties, the officers
and members of the Board are required to exercise ordinary and reasonable care.
10.2.2 Limitation of Board Authority. The Board shall not act on behalf
of the Association to amend the Declaration in any manner that requires the vote or
approval of the Unit Owners pursuant to Section 21.1, to terminate the Condominium
pursuant to RCW 64.34.268, or to elect members of the Board or determine the
qualifications, powers and duties, or terms of office of members of the Board pursuant to
this Section 10; but the Board may fill vacancies in its membership for the unexpired
portion of any term.
10.2.3 Budget Approval. Within thirty (30) days after adoption of any
proposed budget for the Condominium, the Board shall provide a summary of the budget
to all Unit Owners and shall set a date for a meeting of the Unit Owners to consider
ratification of the budget not less than fourteen (14) nor more than sixty (60) days after
mailing of the summary. Unless at that meeting the Owners of Units to which a majority
of the votes in the Association are allocated reject the budget, the budget is ratified,
whether or not a quorum is present. In the event the proposed budget is rejected or the
required notice is not given, the periodic budget last ratified by the Unit Owners shall be
continued until such time as the Unit Owners ratify a subsequent budget proposed by the
Board.
10.3 Authority of the Association.
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10.3.1 The Association acting through the Board, or the Manager
appointed by the Board, for the benefit of the Condominium and the Owners, shall enforce
the provisions of this Declaration and of the Bylaws, shall have all powers and authority
permitted to the Board under the Act and this Declaration, including but not limited to the
following:
(a) Adopt Association Rules;
(b) Adopt and amend budgets for revenues, expenditures and
reserves, and impose and collect Assessments for Common Expenses from Unit
Owners;
(c) Hire and discharge or contract with managing agents and
other employees, agents and independent contractors;
(d) Institute, defend or intervene in litigation or administrative
proceedings in its own name on behalf of itself or two (2) or more Unit Owners on
matters specifically involving the Common Elements. The Association shall be
expressly prohibited from instituting, defending or intervening in litigation,
arbitration or administrative proceedings in its own name, or on behalf of two (2)
or more Unit Owners on matters either relating to Units or not directly involving the
Common Elements;
(e) Make contracts and incur liabilities;
(f) Regulate the use, maintenance, repair, replacement and
modification of Common Elements;
(g) Cause additional improvements to be made as a part of
the Common Elements;
(h) Acquire, hold, encumber and convey in its own name any
right, title or interest to real or personal property, but Common Elements m ay be
conveyed or subjected to a security interest only pursuant to Section 10.7;
(i) Grant easements, leases, licenses and concessions
through or over the Common Elements, and for services provided to Unit Owners;
(j) Impose and collect any payments, fees or charges for the
use, rental or operation of the Common Elements, and for services provided to
Unit Owners;
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(k) Impose and collect charges for late payments of
Assessments and, after notice and an opportunity to be heard by the Board or by
such representative designated by the Board and in accordance with such
provisions as provided in the Declaration or Bylaws or rules and regulations
adopted by the Board, levy reasonable fines in accordance with a previously
established schedule thereof adopted by the Board and furnished to the Owners
for violations of the Declaration, Bylaws and rules and regulations of the
Association;
(l) Impose and collect reasonable charges for the preparation
and recording of Amendments to the Declaration, resale certificates requ ired by
RCW 64.34.425 and statements of unpaid Assessments;
(m) Provide for the indemnification of its officers and Board
and maintain liability insurance for the directors and officers;
(n) Assign its right to future income, including the right to
receive Common Expense Assessments, but only to the extent the Declaration
provides;
(o) Exercise any other powers conferred by the Declaration or
Bylaws;
(p) Exercise all other powers that may be exercised in this
State by the same type of corporation as the Association;
(q) Exercise any other powers necessary and proper for the
governance and operation of the Association;
(r) Maintain and repair any Unit, its appurtenances,
appliances, and any Limited Common Elements, if such maintenance or repair is
reasonably necessary in the discretion of the Board to protect the Common
Elements or preserve the appearance and value of the Condominium, and the
Owner of said Unit has failed and refused to perform said maintenance or repair
within a reasonable time after written notice of the necessity of said maintenance
or repair has been delivered by the Board to the Owner; provided that, the Board
shall levy a special charge against the Unit of such Owner for the cost of such
maintenance or repair; and
(s) Pay any amount necessary to discharge any lien or
encumbrance levied against the entire Property or any part thereof which is
claimed to or may, in the opinion of the Board, constitute a lien against the Property
or against the Common Elements, rather than merely against the interest therein
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of particular Owners. Where one or more Owners are responsible for the existence
of such lien, they shall be jointly and severally liable for the cost of discharging it,
and any costs and expenses (including court costs and attorneys' fee s) incurred
by the Board by reason of such lien or liens shall be specially charged against the
Owners and the Units responsible to the extent of their responsibility.
10.3.2 The Board's power hereinabove enumerated shall be limited in
that the Board shall have no authority to acquire and pay for out of the Association funds
a capital addition or improvement (other than for purposes of restoring, repairing or
replacing portions of the Common Elements) having a total cost in excess of Ten
Thousand Dollars ($10,000), without first obtaining the affirmative vote of a majority of
Owners at a meeting called for such purpose, or if no such meeting is held, then the
written consent of a majority of Owners; provided that, any expenditure or contract for
each capital addition or improvement in excess of Twenty-Five Thousand Dollars
($25,000) must be approved by Owners having not less than sixty -seven percent (67%)
of the voting power.
10.3.3 Nothing herein contained shall be construed to give the
Association authority to conduct an active business for profit on behalf of all the Owners
or any of them.
10.3.4 The Board and its agents or employees may enter any Unit or
Limited Common Element when necessary in connection with any maintenance,
landscaping or construction for which the Board is responsible or in the event of
emergencies. Such entry shall be made with as little inconvenience to the Owners as
practicable, and any damage caused thereby shall be repaired by the Board paid for as
a Common Expense if the entry was due to an emergency, or for the purpose of
maintenance or repairs to Common or Limited Common Elements where the repairs were
undertaken by or under the direction or authority of the Board; provided that, if the repairs
or maintenance were necessitated by or for the Unit entered or its Owners, or requested
by its Owners, the costs thereof shall be specially charged to such Unit. In furtherance
of the foregoing, the Board (or its designated agent) shall have the right at all times to
possess such keys and/or lock combinations as are necessary to gain immediate access
to Units and Limited Common Elements.
10.4 Borrowing by Association. In the discharge of its duties and the exercise
of its powers as set forth in Section 10.3.1, but subject to the limitations set forth in this
Declaration, the Board may borrow funds on behalf of the Association and to secure the
repayment of such funds, assess each Unit (and the Owner thereof) for said Unit's
pro rata share of said borrowed funds and the obligation to pay said pro rata share shall
be a lien against said Unit and the undivided interest in the Common Elements
appurtenant to said Unit. Provided that, the Owner of a Unit may remove said Unit and
the percentage of undivided interest in the Common Elements appurtenant to such Unit
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from the lien of such Assessment by payment of the Allocated Interest in the Common
Expense Liability attributable to such Unit. Subsequent to any such payment, discharge
or satisfaction, the Unit and the Allocated Interest in the Common Elements appurtenant
thereto shall thereafter be free and clear of the liens so paid, satisfied or discharged.
Such partial payment, satisfaction or discharge shall not prevent the lienor from
proceeding to enforce their rights against any Unit and the Allocated Interest in the
Common Elements appurtenant thereto not to be paid, satisfied or discharged.
10.5 Association Records and Funds.
10.5.1 Records and Audits. The Association shall keep financial
records sufficiently detailed to enable the Association to comply with RCW 64.34.425 in
providing resale certificates. All Books and Records of the Association (as defined in
Section 1.8.6) shall be made reasonably available (at all reasonable hours of weekdays
or under other reasonable circumstances) for examination and copying by Declarant , and
any Owner, Mortgagee or their agents. At least annually, the Association shall prepare,
or cause to be prepared, a financial statement of the Association in accordance with
generally accepted accounting principles. If this Condominium consists of f ifty (50) or
more Units, the financial statements of the Condominium shall be audited at least
annually by a certified public accountant. If this Condominium consists of fewer than fifty
(50) Units, an annual audit is also required but may be waived annually by Owners (other
than the Declarant) of Units to which sixty percent (60%) of the votes are allocated,
excluding the votes allocated to Units owned by the Declarant.
10.5.2 Fund Commingling. The funds of the Association shall be kept
in accounts in the name of the Association and shall not be commingled with the funds of
any other Association, nor with the funds of any Manager of the Association or any other
person responsible for the custody of such funds. Any reserve funds of the Association
shall be kept in a segregated account, and any transaction affecting such funds, including
the issuance of checks, shall require the signature of at least two (2) persons who are
officers or directors of the Association.
10.6 Association as Trustee. With respect to a third person dealing with the
Association in the Association's capacity as a trustee, the existence of trust powers and
their proper exercise by the Association may be assumed without inquiry. A third person
is not bound to inquire whether the Association has power to act as trustee or is properly
exercising its powers. A third person, without actual knowledge that the Association is
exceeding or improperly exercising its powers, is fully protected in dealing with the
Association as if it possessed and properly exercised the powers it purports to exercise.
A third person is not bound to assure the proper application of trust assets paid or
delivered to the Association in its capacity as trustee.
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10.7 Common Elements, Conveyance and Encumbrance.
10.7.1 In General. Portions of the Common Elements which are not
necessary for the habitability of a Unit may be conveyed or subjected to a security interest
by the Association if the Owners of Units to which at least eighty percent (80%) of the
votes in the Association are allocated, including eighty percent (80%) of the votes
allocated to Units not owned by Declarant or an Affiliate of Declarant, agree to that action;
but all the Owners of Units to which any Limited Common Element is allocated must agree
in order to convey that Limited Common Element or subject it to a security interest.
Proceeds of the sale or financing are an asset of the Association.
10.7.2 Agreement. An agreement to convey Common Elements or
subject them to a security interest must be evidenced by the execution of a n agreement,
or ratification thereof, in the same manner as a deed, by the requisite number of Unit
Owners. The agreement must specify a date after which the agreement will be void
unless recorded before that date. The agreement and all ratification ther eof must be
recorded in every county in which a portion of the Condominium is situated and is only
effective upon recording.
10.7.3 Conditions Precedent. The Association, on behalf of the Unit
Owners, may contract to convey Common Elements or subject them to a security interest,
but the contract is not enforceable against the Association until approved pursuant to
Sections 10.7.1 and 10.7.2. Thereafter, the Association has all powers necessary and
appropriate to effect the conveyance or encumbrance, including the power to execute
deeds or other instruments.
10.7.4 Void Transactions. Any purported conveyance, encumbrance
or other voluntary transfer of Common Elements, unless made pursuant to this Section,
is void.
10.7.5 Support Right. A conveyance or encumbrance of Common
Elements pursuant to this Section shall not deprive any Unit of its rights of access and
support.
10.8 Termination of Contracts and Leases. If entered into before the Board
elected by the Unit Owners pursuant to the Bylaws takes office, (a) any management
contract, employment contract, lease or recreational or parking areas or facilities, (b) any
other contract or lease between the Association and a Declarant or an Affiliate of a
Declarant, or (c) any contract or lease that is not bona fide or was unconscionable to the
Unit Owners at the time entered into under the circumstances then prevailing, may be
terminated without penalty by the Association at any time after the Board elected by the
Unit Owners pursuant to the Bylaws takes office upon not less than nine ty (90) days’
notice to the other party or within such lesser notice period provided for without penalty
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in the contract or lease. This Section does not apply to any lease, the termination of
which would terminate the Condominium or reduce its size, unless the real property
subject to that lease was included in the Condominium for the purpose of avoiding the
right of the Association to terminate a lease under this Section.
10.9 Association Dispute Resolution.
10.9.1 The term "Legal Proceedings" as used herein shall in clude
litigation, administrative, mediation, arbitration or other proceedings in the name of the
Association on behalf of itself or two (2) or more Unit Owners on matters affecting the
Condominium.
10.9.2 The provisions of this Section 10.9 shall not apply to Legal
Proceedings, as a result of which the Association could not be held responsible for costs
of suit (including fees for attorneys, experts, witnesses, investigations and other costs of
suit) in an aggregate amount of more than Ten Thousand Dollars ($10,000) (including,
without limitation, fees contingent on the result) and which involve any of the following:
(a) Collection of delinquent regular or special Assessments,
the enforcement of any Assessment lien, and interest and penalties in connection
therewith;
(b) Collection of monies owed to the Association, or recovery
of damages caused to the Association or Condominium (or any part thereof), when
the principal amount to be recovered involves less than Twenty-five Thousand
Dollars ($25,000);
(c) Enforcement of the provisions of the Declaration, Articles,
Bylaws or rules and regulations of the Association;
(d) Defense of a claim against the Association; or
(e) The filing of a complaint, answer or other pleading for the
limited purpose of satisfying a statu te of limitation deadline, avoiding entry of a
default order or judgment, or preventing personal injury or serious harm to the
Condominium (if such purpose is certified in good faith by the Association's
attorney), but except for this limited purpose, the other conditions of Section 10.9
must be satisfied.
10.9.3 In order for the Association (or the Board acting on behalf of the
Association) to institute or intervene in Legal Proceedings other than those listed in
Section 10.9.2 above, and in which the Association may become obligated in the
aggregate sum in excess of Ten Thousand Dollars ($10,000), to attorneys, professionals,
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consultants or other experts in connection with Legal Proceedings, the following
conditions must first be satisfied:
(a) The Board has received a detailed written summary
("Litigation Summary") concerning the substance of the proceeding, including:
(i) agreements with lawyers, experts and consultants and issues involved; (ii) legal
and factual basis of anticipated allegations on behalf of a nd against the
Association; (iii) remedies to be sought on behalf of and against the Association;
(iv) estimated amount to be sought on behalf of (and that could be sought from)
the Association; (v) Association's estimated costs of suit (including fees for
attorneys, experts, witnesses, investigations and other costs of suits) and any
third-party costs of suit that the Association would pay if the Association does not
prevail; (vi) reports and recommendations by any professionals or consultants
retained by the Association (and by any opposing party, if available); (vii) any
written demands or settlement offers made by an opposing party (the Board shall
request that an opposing party make such demand and settlement offer); and
(viii) any negative consequences that the Association, Condominium or Owners
could suffer during such proceedings, including required disclosures to prospective
purchasers, impediments to Unit refinancing or diminishment of Unit value.
(b) If the proceeding will involve a claim against the Declarant
(or Declarant's contractor, subcontractors, vendors, suppliers or other
professionals) concerning construction defects or other condition of the
Condominium, the Litigation Summary will also include a description of the
construction defects or other condition (which shall also have been transmitted to
the Declarant), and any written response from the Declarant concerning such
defects (including any offer to settle by performing remedial work, payment of cash
or a combination of both).
(c) A copy of the Litigation Summary shall be transmitted to
all Owners, together with a written notice of the Owners’ right of access to the
Books and Records of the Association as provided in Section 10.5.1, and a written
notice of a special meeting of the Owners to be convened as provided in this
Declaration, at which meeting the Declarant (and its representatives) shall be
entitled to attend and participate in on a non-voting basis.
(d) The Owners holding seventy percent (70%) of the total
Association voting power must grant approval for the Association (or the Board
acting on behalf of the Association) to institute or intervene in legal proceedings;
provided that, under no circumstances may legal proceedings be commenced
against Declarant (or Declarant's contractor, subcontractors, vendors, suppliers or
other professionals) with respect to any alleged construction defect or other
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condition which Declarant has agreed in writing to remedy and is proceeding with
reasonable diligence to do so.
10.9.4 Policy–Mediation. The parties to this Declaration (as specified
in Section 10.9.5 below) hope there will be no disputes arising out of their relationship.
To that end, each commits to cooperate in good faith and to deal fairly in performing their
duties under this Declaration in order to accomplish their mutual objectives and avoid
disputes. But if a dispute arises, to the maximum extent allowed by Washington law, the
parties agree to resolve all disputes by the following alternate dispute resolution process:
(a) the parties will seek a fair and prompt negotiated resolution, but if this is not
successful, (b) all disputes shall be resolved by binding arbitration; provided that, during
this process, (c) at the request of either party made not later than forty-five (45) days after
the initial arbitration demand, the parties will attempt to resolve any dispute by non -
binding mediation (but without delaying the arbitration hearing date). The parties confirm
that by agreeing to this alternate dispute resolution process, they intend to give up their
right to have any dispute decided in court by a judge or jury, to the maximum extent
allowed by Washington law.
10.9.5 Binding Arbitration. Except as may be otherwise mandated in
RCW 64.55.010, et. seq., or otherwise by the Act, any claim, except a claim involving an
action for judicial or non-judicial foreclosure of the Association's lien for Assessments,
between or among any party subject to this Declaration (including without limitation, the
Declarant, Association, Board or officers, Unit Owners or their employees or agents)
arising out of or relating to this Declaration, a Unit or Units, the Condominium or the
Association, shall be determined by Arbitration in the county in which the Condominium
is located commenced in accordance with RCW 7.04.060; provided that, the total award
by a single arbitrator (as opposed to a majority of the arbitrators) shall not exceed Fifty
Thousand Dollars ($50,000), including interest, attorneys' fees and costs. If any party
demands a total award greater than Fifty Thousand Dollars ($50,000), there shall be three
(3) neutral arbitrators. If the parties cannot agree on the identity of the arbitrators within
ten (10) days of the arbitration demand, the arbitrators shall be selected by the
administrator of the American Arbitration Association (AAA) office in Seattle from its
Large, Complex Case Panel (or have similar professional credentials). Each arbitrator
shall be an attorney with at least fifteen (15) years experience in commercial or real estate
law, and shall reside in the county in which the Condominium is located. Whether a claim
is covered by the Article shall be determined by the arbitrators. All statutes of limitations
which would otherwise be applicable shall apply to any arbitration proceeding hereunder.
10.9.6 Hearing; Law; Appeal Limited. The arbitrators shall take such
steps as may be necessary to hold a private hearing within ninety (90) days of the initial
demand for arbitration and to conclude the hearing within three (3) days, and the
arbitrators' written decision shall be made not later than fourteen (14) calendar days after
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the hearing. The parties have included these time limits in order to expedite the
proceeding, but they are not jurisdictional, and the arbitrators may for good cause afford
or permit reasonable extensions or delays, which shall not affect the validity of the award.
The written decision shall contain a brief statement of the claim(s) determined and the
award made on each claim. In making the decision and award, the arbitrators shall apply
applicable substantive law. Absent fraud, collusion or willful misconduct by an arbitrator,
the award and decision shall be final, and the judgment may be entered in any court
having jurisdiction thereof. The arbitrators may award injunctive relief or any other
remedy available from a judge, including without limitation joinder of parties or
consolidation of this arbitration with any other involving common issues of law or fact or
which may promote judicial economy; but shall not have the powe r to award punitive or
exemplary damages, or to award attorneys' fees and costs in excess of Ten Thousand
Dollars ($10,000) to the prevailing party. The decision and award of the arbitrators need
not be unanimous; rather, the decision and award of two (2) arbitrators shall be final.
10.9.7 Statutory Dispute Resolution. Sections 10.9.4 through 10.9.6
shall not apply to the extent that they violate any provision of the Act. Further, the
mediation and arbitration process set forth in Sections 10.9.4 through 10.9.6 are
inapplicable to actions for which RCW 64.55.100, et seq., specifies a mediation and
arbitration process.
10.10 Association Inspections. The Association is required to perform
periodic maintenance of the Common Elements and Units as described in Exhibit E and
outlined in the Maintenance Manual provided to the Association by Declarant. At least
annually, the Association shall have the Condominium inspected in order to ascertain the
physical condition of the improvements in the Condominium and to determine whether
maintenance, repairs or replacements of any such improvements are indicated.
Immediately upon completion of the inspection, the inspector shall prepare for the Board
a detailed report for future reference, describing the inspector’s observations, any
improvements that the inspector believes require maintenance, repairs or replacements,
and the corrective action the inspector believes should be taken. If the Board believes
that the Declarant may be responsible to perform any of the maintenance, rep airs or
replacement described in that report, then the Board shall provide a written request to
Declarant of the Board’s determination. The notice shall include both a copy of the
inspector’s report and all supporting data, together with a detailed description of such
improvements, their location and the corrective action requested. Notices and inspection
reports shall be provided to Declarant at the following address:
POLYGON WLH, LLC
11624 SE 5th Street, Suite 100
Bellevue, WA 98005
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or to such other address or by such other means as Declarant may designate by notice
to the Association. Declarant will provide to the Board a detailed response to the Board’s
written notice within sixty (60) days after receipt of such notice. If Declarant has furnish ed
an inspection report to the Association pursuant to Section 23.1.3, the Association may
use that report as the report required by this Section.
10.11 Building Enclosure Inspection. The Association shall have the
Condominium inspected by a qualified engineer or architect (“the Inspector”) in order to
ascertain whether any of the improvements in the Condominium related to the Building
Enclosure (as that term is defined in RCW 64.55) require maintenance, repairs or
replacements. This inspection shall occur prior to the expiration of the four (4) year statute
of limitations described in RCW 64.34.452. Immediately upon completion of the
inspection, the Inspector shall prepare for the Board a detailed report of the Inspector’s
observations. Until December 31 of the calendar year that six (6) years following the
calendar year in which the last Unit was added to the Condominium, the Association shall
(a) provide reasonable advance notice to Declarant of when the inspections are to occur,
(b) permit a representative of Declarant to be present during the inspections, and
(c) provide Declarant with copies of inspection reports promptly upon receipt. Notices
and inspection reports shall be provided to Declarant at the address specified in
Section 10.10 above.
ARTICLE 11 -
USE; REGULATION OF USES; ARCHITECTURAL UNIFORMITY
11.1 Residential Units. The Units shall be used for: (a) Residential Purposes,
including sleeping, eating, food preparation for on -site consumption by occupants and
guests, entertaining by occupants of personal guests and similar activities commonly
conducted within a residential dwelling, without regard to whether the Unit Owner or
occupant resides in the Unit as a primary or secondary personal residence, on an
ownership, rental, lease or invitee basis, for common social, recreational or other
reasonable uses normally incident to such purposes; and (b) for purposes of operating
the Association and managing the Condominium; and (c) for such other reasonable
ancillary purposes commonly associated with resident ial dwellings and otherwise in
compliance with the Declaration and applicable law in residential dwellings (including
without limitation, a home/professional business office). Owners shall use their property
solely and exclusively for private single family residences. Conduct of a private business
shall be permitted on the following conditions: (a) the equivalent of not more than one (1)
full-time nonresident is employed at the business location; (b) the existence or operation
of the business activity is not apparent or detectable by sight, sound or smell from outside
the Unit; (c) the Owner complies with all applicable governmental regulations and codes
applicable to such use and the Condominium; (d) the business activity does not involve
regular visitation of the Unit by clients, customers, suppliers or other business invitees or
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door-to-door solicitation of residents of the Condominium; and (e) the business activity is
consistent with the residential character of the Condominium and does not constitute a
nuisance, a hazardous or offensive use, or threatens the security or safety of other
residents of the Condominium, as may be determined in the sole discretion of the Board.
The providing of on-site health and mental care services to a Unit resident shall not
constitute a private business so long as otherwise in compliance with this Declaration and
applicable law. This Section 11.1 shall not apply to any activity conducted by the
Declarant with respect to the development operation and/or sale of any Unit s owned by
Declarant.
11.2 Vehicle Parking Restrictions. Motor vehicles may only be parked in
garage or uncovered parking spaces. No garage shall be used for a storage, work or
shop area if such use impairs the ability of the owner of such garage to park a mo tor
vehicle therein. No portion of a garage may be converted for use as an apartment or
other integral part of the living area in any Unit.
11.3 Common Drives and Walks. Common drives, walks, corridors, stairways
and other general Common Elements shall be used exclusively for normal transit, and no
obstructions and/or decorations or other items shall be placed thereon or therein except
by express written consent of the Board. The streets located throughout the
Condominium are designated as fire lanes. No parking shall occur within these areas.
11.4 Maintenance of Common Elements and Units.
11.4.1 Association and Owner Responsibilities. Except as provided
below, the Association is responsible for the maintenance, repair and replacement of the
Common Elements and Limited Common Elements, and each Owner is responsible for
the maintenance and repair of the Owner’s Unit. Each Owner shall, at their sole expense,
have the right and the duty to keep the interior of their Unit and its improvements,
equipment, appliances and appurtenances in good order, condition and repair. Each
Owner shall be responsible for the maintenance, repair or replacement of the doors to the
Owner’s Unit, broken or damaged glass in the windows or doors to the Unit, and any
wiring, plumbing, vents, plumbing fixtures, water heaters, fans, heating or other
equipment, electrical fixtures or appliances which serve only that Unit, whether or not
located in the Unit; provided that the Association may elect to perform any such
maintenance, repair or replacement work and charge the Unit Owner for the costs thereof.
However, the Association shall be responsible for the maintenance, repair or replacement
of any wiring, plumbing, vents, plumbing fixtures, water heaters, fans, heating or other
equipment, electrical fixtures or appliances which serve more than one Unit, whether or
not located in the Unit. All expenses incurred by the Association in connection with any
of the foregoing shall be Common Expenses.
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11.4.2 Additional Rights and Duties of Owners. Without limiting the
generality of the foregoing, each Owner shall have the right and the duty, at their sole
cost and expense, to install, maintain, repair, paint, paper, panel, plaster, tile and finish
the windows, window frames, interior doors, frames and trim, interior non-load bearing
partitions, the interior surfaces of the ceilings, floors and the perimeter walls in the Unit
and the surfaces of the bearing and non-bearing walls located within their Unit, and shall
not permit or commit waste of their Unit or the Common Elements. Each Owner shall
have the right to substitute new finished surfaces for the finished surfaces then existing
on said ceilings, floors and walls; provided, that except for hard surface flooring installed
by Declarant or installed as part of the original construction of the Unit, no Owner shall
install hard surface flooring within a Unit except with the prior written consent of the Board.
This Section shall not be construed as permitting any violation of any other provision of
this Declaration or any interference with or damage to the structural integrity of the Unit
or interference with the use and enjoyment of the Common Elements or of the other Units
or any of them, or materially increasing sound transmission between Units , nor shall it be
construed to limit the powers or obligations of the Board or Board hereunder. It is the
responsibility of each Unit Owner to read the homeowners’ maintenance manual provided
by Declarant, and follow the procedures set forth therein to ensure that the Unit functions
in the way it was designed.
11.5 Alteration of Units.
11.5.1 Non-Structural. A Unit Owner may make any improvements or
alterations to the Owner's Unit that do not affect the structural integrity or mechanical or
electrical systems or lessen the support of any other Units or any part of the
Condominium.
11.5.2 Common Element. A Unit Owner may not change the
appearance of the Common Elements or the exterior appearance of a Unit without
permission of the Association.
11.6 Maintenance of Limited Common Elements. Limited Common Elements,
as defined in Article 7, are for the sole and exclusive use of the Units for which they are
reserved or assigned; provided, that the use, condition and appearance thereof may be
regulated under provisions of the Bylaws, Rules and Regulations, or this Declaration,
including the following:
11.6.1 Decisions By Board. Decisions with respect to the standard of
appearance and condition of Limited Common Elements, and with respect to the
necessity for and manner of caring for, mainta ining, repairing, repainting or redecorating
Limited Common Elements ("Maintenance Work" herein), shall be made by the Board.
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11.6.2 Performance of Work. Performance of such Maintenance Work
shall be carried out by the Owner or Owners of Units to which the Limited Common
Element in question is assigned or reserved; provided, that by written notice, the Board
may elect to have the Association perform such Maintenance Work.
11.6.3 Board Approval. Owners may not, however, modify, paint or
otherwise decorate or in any way alter their respective Limited Common Elements without
prior written approval of the Board.
11.6.4 Owner Pays Costs. Unit Owners will be responsible for the cost
of such Maintenance Work for the Limited Common Elements reserved for or assigned
to their Units. With respect to any such Maintenance Work performed by the Association,
the cost thereof (or the appropriate share thereof if the Limited Common Element in
question has been assigned or reserved jointly to more than one Unit) shall be levied as
a special charge against the Unit or Units (and the Owner or Owners thereof) to which
such Limited Common Element is assigned or reserved.
11.6.5 Multiple Owners. With respect to a Limited Common Element
reserved for or assigned to more than one Unit for the mutual and jo int use thereof, the
cost of such Maintenance Work for such Limited Common Element shall be divided in
equal shares among the Units for which such Limited Common Element is reserved.
11.6.6 Cost as Special Charge. With respect to any such Maintenance
Work performed by the Association, the cost thereof (or the appropriate share thereof if
the Limited Common Element in question has been assigned or reserved jointly to more
than one Unit) shall be levied as a special charge against the Unit or Units (and the Owner
or Owners thereof) to which such Limited Common Element is assigned or reserved.
11.7 Exterior Appearance. In order to preserve a uniform exterior appearance
to the Unit and the Common and Limited Common Elements visible to the public, the
Board shall require and provide for the painting and other decorative finish of the Unit, or
patio/yard areas, or other Common or Limited Common Elements, and prescribe the type
and color of such decorative finishes, and may prohibit, require or regulate any
modification or decoration of the Units, or patio/yard areas or other Common or Limited
Common Elements undertaken or proposed by any Owner. This power of the Board
extends to screens, doors, awnings, rails or other visible portions of each Unit. The Board
may also require use of a uniform color and kind of Unit window covering (including
draperies, blinds, shades, etc.) visible from the exterior or from Common Elements.
Notwithstanding the foregoing, Declarant reserves the right to make minor modifications
to the exteriors of Units in unsold Units, including but not limited to the installation of
privacy screens and fences.
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11.8 Effect on Insurance. Nothing shall be done or kept in any Unit or in the
Common or Limited Common Elements which will increase the rate of insuranc e on the
Common Elements or Unit without the prior written consent of the Board. No Owner
and/or purchaser shall permit anything to be done or kept in their Unit or in the Common
or Limited Common Elements which will result in the cancellation of insurance on any
Unit or any part of the Common or Limited Common Elements, or which would be in
violation of any laws.
11.9 Signs. No sign of any kind shall be displayed to the public view on or from
any Unit or Common or Limited Common Elements without the prior con sent of the Board;
provided that, the Board shall, by and subject to appropriate rule, permit temporary
placement of a sign, at a space designated by the Board, indicating that a Unit is for sale
or lease; and provided that, this Section shall not apply to Declarant or Declarant's agents
in exercising any Special Declarant Rights reserved by Declarant under this Declaration.
11.10 Pets. Domestic household pets, such as cats and dogs, may be kept by
Unit Owners, provided that the keeping of pets shall be subject to such reasonable rules
and regulations as the Board may adopt from time to time. The Board may require, after
Notice and Opportunity to be Heard, the removal of any animal which the Board in the
exercise of reasonable discretion finds disturbing other U nit Owners unreasonably, and
may exercise this authority for specific animals even though other animals are permitted
to remain. Pets will not be allowed on any Common Element (or Limited Common
Elements allocated for the use of more than one Unit) unless they are on a leash or being
carried and are being walked to or from the Unit to a public walk or street. At all times the
Common Elements shall be free from pet debris, including food and feces matter. Pet
feces must be properly disposed. No livestock, poultry or other animals whatsoever shall
be allowed or kept in any part of the Condominium, nor may any animal be bred or used
therein for any commercial purpose.
11.11 Offensive Activity. No noxious or offensive activity shall be carried on in
any Unit or Common or Limited Common Element, nor shall anything be done therein
which may be or become an annoyance or nuisance to other Owners. All occupants shall
avoid making noises and using musical instruments, radios and amplifiers in such manner
as may disturb other occupants. Owners shall also control their pets so that they do not
disturb other occupants.
11.12 Common Element Alterations. Nothing shall be altered or constructed in,
or (except for an Owner's personal property) removed from, the Common Elements
except upon the written consent of the Board and after procedures required herein or by
law. This shall include but not be limited to additional telephone or cable jacks, electrical
outlets, air conditioners, satellite dishes, alarm systems and water filters .
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11.13 Regulation of Use - Association Rules. The Declaration (or amendments
thereto) or Association Rules (adopted in accordance with this Declaration) may
reasonably regulate either a use or purpose authorized by this Declaration, or behavior
in Units or Common or Limited Common Elements so as to:
(a) Implement a provision of the Declaration,
(b) Prevent any behavior in or occupancy of a Unit that
violates the Declaration or adversely affect the reasonable use and enjoyment of
other Units or the Common Elements by other occupants,
(c) Prevent the occurrence of noxious or offensive activity
restricted under this Declaration,
(d) Reasonably satisfy underwriting requirements of
institutional lenders that regularly make loans secured by first mortgages on units
in comparable common interest communities or that regularly purchase those
mortgages, or
(e) Protect other legitimate interests of the Association or
the Owners.
The adoption or modification of such reasonable regulations, not prohibiting or
otherwise significantly and materially interfering with such use or purpose, shall not be
deemed a change in the permitted use.
The Board may adopt, amend and revoke from time to time detailed reasonable
regulations (“Association Rules”) that it deems necessary or convenient to reasonably
regulate either a use or purpose authorized by this Declaration, or behavior in Units or
Common or Limited Common Elements, so as to accomplish any of the purposes
described in clauses (a) through (e) above in this Section 11.13. The adoption,
amendment or revocation of any such Association Rules shall be binding on all Unit
Owners, lessees, guests and invitees upon adoption by the Board.
11.14 Tenant Evictions. If any renter or lessee or occupant of a Unit violates or
permits the violation by guests and invitee s of any provisions hereof or of the Bylaws or
of the rules and regulations of the Association, and the Board determines that such
violations have been repeated and a prior notice to cease has been given, the Board may
give notice to the renter or lessee o r occupant of the Unit and the Owner thereof to
forthwith cease such violations. If the violation is thereafter repeated, the Board shall
have the authority, on behalf and at the expense of the Owner, to evict the tenant or
occupant if the Owner fails to do so after Notice and Opportunity to be Heard. The Board
shall have no liability to an Owner or renter or lessee for any eviction made in good faith.
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The Association shall have a lien against the Owner’s Unit for any costs incurred by it in
connection with such eviction, including reasonable attorneys’ fees, which may be
collected and foreclosed by the Association in the same manner as Assessments are
collected and foreclosed under this Declaration.
11.15 Rental Units. The leasing or renting of a Unit by its Owner shall be
governed by the provisions of this Section 11.15:
11.15.1 No Transient Purposes. No Unit Owner, including a Lender in
possession of a Unit following a default or foreclosure of a mortgage, shall be permitted
to Lease their Unit for any hotel or transient purposes, which shall be defined as Renting
for a period of less than thirty (30) days. The Association may by resolution of the Board
of Directors prohibit the Leasing of any Unit for a period of less than six (6) months. Time
sharing of Units is not allowed. Copies of all Leasing or Rental Agreements shall be
delivered to the Association before the tenancy commences.
11.15.2 No Partial Leases. No Unit Owner may lease less than the
entire Unit.
11.15.3 Written Leases. All Leasing or Rental agreements shall be in
writing and be subject to this Declaration, Bylaws, and Association Rules (with a default
by the tenant in complying with this Declaration, Bylaws or Association Rules constituting
a default under the Lease or Rental agreement). Copies of all Leasing and Rental
Agreements shall be delivered to the Association before the tenancy commences.
11.15.4 Rent to Association. If a Unit is rented by its Owner, the Board
may collect, and the tenant or lessee shall pay over to the Board, so much of the rent for
such Unit as is required to pay any amounts due the Association hereunder, plus interest
and costs if the same are in default over thirty (30) days. The renter or lessee shall not
have the right to question payment to the Board, and such payment will discharge the
lessee's or renter's duty of payment to the Owner for rent to the extent such rent is paid
to the Association, but will not discharge the liability of the Owner or purchaser and the
Unit under this Declaration for Assessments and charges, to the extent of such payment.
The Board shall not exercise this power where a receiver has been appointed with respect
to the Unit or its Owner, nor in derogation of any right which a Mortgagee of such Unit
may have with respect to such rents. Other than as stated in this Section 11.14, there is
no restriction on the right of any Unit Owner to Lease or otherwise rent their Unit.
11.15.5 No Other Restrictions. Other than as stated in this Section
11.15, there is no restriction on the right of any Unit Owner to Lease or otherwi se rent
their Unit.
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11.16 Front Yard Area Maintenance. The Association will maintain the front yard
areas which are designated as Common Elements or Common Areas.
11.17 Satellite Dishes. The installation of satellite dishes and related items shall
be subject to the policy and rules set forth in the attached Exhibit D.
11.18 Special Unit Owner and Association Maintenance Obligations.
Notwithstanding any other provision of this Declaration, both (a) each Unit Owner, with
respect to their Unit and the Limited Common Elements for which they may have the
obligation to maintain pursuant to this Declaration, and (b) the Association, with respect
to the Common Elements and all other portions of the Condominium for which it may have
the obligation to maintain pursuant to this Declaration, shall have the affirmative duty to
follow the maintenance procedures and work specified in Exhibit F to this Declaration.
11.19 Restricted Activities. The following activities are prohibited within the
Condominium unless expressly authorized by, and then subject to, such conditions as
may be imposed by the Board:
11.19.1 Obstruction or re-channeling of drainage flows after location
and installation of storm sewers or storm drains, except that the Declarant and the
Association shall have such right; provided that, the exercise of such right shall not
materially diminish the value of or unreasonably interfere with the use of any Unit without
the Owner's consent.
11.19.2 Conversion of any garage, attic or other unfinished space, to
finished space for use as an apartment or other integral part of the living area in any Unit.
ARTICLE 12 -
COMMON EXPENSES AND ASSESSMENTS
12.1 Estimated Expenses. Within sixty (60) days prior to the beginning of each
calendar year, or such other fiscal year as the Board may ad opt, the Board shall
(a) estimate the charges including Common Expenses and any special charges for
particular Units to be paid during such year, (b) make provision for creating, funding and
maintaining reasonable reserves for contingencies and operations, as well as for
maintenance, repair, replacement and acquisition of Common Elements, and (c) take into
account any expected income and any surplus available from the prior year's operating
fund. Without limiting the generality of the foregoing but in furtherance thereof, the Board
shall create and maintain from regular monthly Assessments a reserve fund for
replacement of those Common Elements which can reasonably be expected to require
replacement or a major repair. The Board shall calculate the contributions to said reserve
fund so that there are sufficient funds therein to replace, or perform such major repair, to
each Common Element covered by the fund at the end of the estimated useful life of each
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such Common Element. The initial Board, whether appo inted by Declarant or elected by
Unit Owners, may at any suitable time establish the first such estimate. If the sum
estimated and budgeted at any time proves inadequate for any reason (including non -
payment for any reason of any Owner's Assessment), the Board may at any time levy a
further Assessment, which shall be assessed to the Owners according to Section 12.4.
Similarly, if the sum estimated, budgeted and being collected and/or already collected at
any time proves excessive, the Board may (a) reduce the amount being assessed, and/or
(b) apply existing funds (in excess of current needs and required reserves) against either
(i) future Assessments, (ii) to pay deficiencies in required reserves, (iii) prepay reserves,
or (iv) not prepay, but instead increase the amount to be in reserve funds.
12.2 Payment by Owners. Each Owner shall be obligated to pay their share of
Common Expenses and special charges made pursuant to this Article to the Treasurer
for the Association in equal monthly installments in advance and not in arrears on or
before the first day of each month during such year, or in such other reasonable manner
as the Board shall designate. No Owner may exempt himself from liability for payment of
Assessments for any reason, including waiver of use or enjoyment of any of the Common
Elements or abandonment of the Owner's Unit.
12.3 Commencement of Assessments. Assessments for all Units in Phase 1
will commence on a date no later than sixty (60) days after the date of first conveyance
of a Unit in Phase 1 to an Owner (other than Declarant or an Affiliate of Declarant);
provided that Declarant may delay the commencement of Assessments for Common
Expenses and pay all actual Common Expenses (with no allocations to reserves), except
to the extent required otherwise by Fannie Mae. Until the Association makes an
Assessment, the Declarant shall pay all Common Expenses. After any Assessment has
been made by the Association, Assessments must be made against all Units based on a
budget adopted by the Association. Mon thly Assessments will commence on Units
established in Phases after Phase 1 upon the addition of those Units in that Phase of the
Condominium. All costs associated with Subsequent Phase Property shall be borne
solely by or allocated to Declarant until Assessments have commenced with respect to
Units on the Property or the Declarant no longer has the Development Right to create
Units on that Property.
12.4 Allocated Liability. Except for Assessments under Sections 12.5, 12.6,
12.7, 12.8, 12.9 and 12.10, all Common Expenses must be assessed against all of the
Units in accordance with the allocations set forth in Exhibit C. Any past-due Common
Expense Assessment or installment thereof bears interest at the rate established by the
Association pursuant to Section 12.12.12.
12.5 Limited Common Element. Any Common Expense associated with the
operation, maintenance, repair or replacement of a Limited Common Element shall be
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paid by the Owner of or assessed against the Units to which that Limited Common
Element is equally assigned.
12.6 Only Some Units Benefited. The Board may elect that any Common
Expense or portion thereof benefiting fewer than all of the Units must be assessed
exclusively against the Units benefited.
12.7 Insurance Costs. The Board may elect that the costs of insurance must
be assessed in proportion to risk.
12.8 Utility Costs. Each Unit shall l be individually metered and each Unit
Owner will be solely responsible for all natural gas, water and electricity provided to their
Unit. In addition, each Unit Owner shall be solely responsible the costs and expenses of
water, sewer and trash collection attributable to the Unit. In the event the Association
pays any utility, service or other expense on behalf of the Unit Owners, then The Board
may elect that the costs of such utility, service or charge must be assessed in proportion
to usage. Each Unit Owner will be solely responsible for all costs of repairing and
maintaining the natural gas furnace installed in their Unit.
12.9 Assessments for Judgment. Assessments to pay a judgment against the
Association pursuant to RCW 64.34.368(1) may be made only against the Units in the
Condominium at the time the judgment was entered in proportion to their Allocated
Common Expense Liabilities at the time the judgment was entered.
12.10 Owner Misconduct. To the extent that any Common Expense is caused
by either the misconduct or negligent act or omission of any Unit Owner, the Association
shall assess that expense against the Owner's Unit, provided that this Section shall not
alter or void any waiver of subrogation provision in this Declaration.
12.11 Reallocation. If Common Expense Liabilities are reallocated, Common
Expense Assessments and any installment thereof not yet due shall be recalculated in
accordance with the reallocated Common Expense Liabilities.
12.12 Lien for Assessments.
12.12.1 Lien. The Association has a lien on a Unit for any unpaid
Assessments levied against a Unit from the time the Assessment is due.
12.12.2 Priority. A lien under Section 12.12 shall be prior to all other
liens and encumbrances on a Unit except: (a) liens and encumbrances recorded before
the recording of the Declaration; (b) a Mortgage on the Unit recorded before the date on
which the Assessment sought to be enforced became delinquent; and (c) liens for real
property taxes and other governmental Assessments or charges against the Unit.
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12.12.3 Mortgage Priority. Except as provided in Sections 12.12.4 and
12.12.5, the lien shall also be prior to the Mortgagee described in Section 12.12.2(b) to
the extent of Assessments for Common Expenses, excluding any amounts for capital
improvements, based on the periodic budget adopted by the Association pursuant to
Section 12.1, which would have become due during the six (6) months immediately
preceding the date of the Sheriff's sale in an action for ju dicial Foreclosure by either the
Association or a Mortgagee, the date of a trustee's sale in a non -judicial Foreclosure by
a Mortgagee, or the date of recording of the Declaration of Forfeiture in a proceeding by
the vendor under a real estate contract.
12.12.4 Mortgagee Notice. The priority of the Association's lien against
Units encumbered by a Mortgage held by an Eligible Mortgagee or by a Mortgagee which
has given the Association a written request for a notice of delinquent Assessments shall
be reduced by up to three (3) months if and to the extent that the lien priority under
Section 12.12.3 includes delinquencies which relate to a period after such holder
becomes an Eligible Mortgagee or has given such request for notice and before the
Association gives the holder a written notice of the delinquency. This Section does not
affect the priority of mechanics' or materialmen's liens, or the priority of liens for other
Assessments made by the Association.
12.12.5 Recording as Notice. Recording of the Declaration constitutes
record notice and perfection of the lien for Assessments. While no further recording of
any claim of lien for Assessments under this Section shall be required to perfect the
Association's lien, the Association may record a notice of claim of lien fo r Assessments
under this Section in the real property records of any county in which the Condominium
is located. Such recording shall not constitute the written notice of delinquency to a
Mortgagee referred to in Section 12.12.4.
12.12.6 Limitation on Action. A lien for unpaid Assessments and the
personal liability for payment of Assessments is extinguished unless proceedings to
enforce the lien or collect the debt are instituted within three (3) years after the amount of
the Assessments sought to be recovered becomes due.
12.12.7 Foreclosure. The lien arising under Section 12.12 may be
enforced judicially by the Association or its authorized representative in the manner set
forth in RCW 61.12. The Association or its authorized representative shall have the
power to purchase the Unit at the Foreclosure sale and to acquire, hold, lease, mortgage
or convey the same. Upon an express waiver in the complaint of any right to a deficiency
judgment in a judicial Foreclosure action, the period of redemption shall be eight (8)
months. Nothing in this Section shall prohibit an Association from taking a deed in lieu of
Foreclosure. The lien arising under this Section 12.12 also may be foreclosed
nonjudicially in the manner set forth in RCW Ch. 61.24 for nonjudicial foreclosure of deeds
of trust. For the purpose of preserving the Association’s nonjudicial foreclosure option,
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this Declaration shall be considered to create a grant of each Unit in trust to Chicago Title
Insurance Company, or its successors or assigns (“Trustee”), to secure the obligations of
each Unit Owner (“Grantor”) to the Association (“Beneficiary”) for the payment of
Assessments. Grantor shall retain the right to possession of Grantor’s Unit so long as
Grantor is not in default of an obligation to pay Assessments. Trustee shall have a power
of sale with respect to each Unit, which becomes operative in the case of a default in a
Grantor’s obligation to pay Assessments. The Units are not used principally for
agricultural or farming purposes. If the Association forecloses its lien nonjudicially
pursuant to this Section, it shall not be entitled to the lien priority over Mortgages provided
in exception (b) of Section 12.12.3.
12.12.8 Receiver. From the time of commencement of an action by the
Association to foreclose a lien for nonpayment of delinquent Assessments under a Unit
that is not occupied by the Owner thereof, the Association shall be entitled to the
appointment of a receiver to collect from the lessee thereof the rent for the Unit as and
when due. If the rental is not paid, the receiver may obtain possession of the Unit,
refurbish it for rental up to a reasonable standard for rental units in this type of
Condominium, rent the Unit or permit its rental to others, and apply the rents first to the
cost of the receivership and attorneys' fees thereof, then to the cost of refurbishing the
Unit, then to applicable charges, then to costs, fees and charges of the Foreclosure
action, and then to the payment of the delinquent Assessments. Only a receiver may
take possession and collect rents under this Section, and a receiver shall not be appointed
less than ninety (90) days after the delinquency. The exercise by the Association of the
foregoing rights shall not affect the priority of preexisting liens on the Unit.
12.12.9 Mortgagee Liability. Except as provided in Section 12.12.3, the
holder of a Mortgage or other Purchaser of a Unit who obtains the right of possession of
the Unit through Foreclosure shall not be liable for Assessments or installments thereof
that became due prior to such right of possession. Such unpaid Assessments shall be
deemed to be Common Expenses collectible from all of the Unit Owners, including such
Mortgagee or other purchaser of the Unit. Foreclosure of a Mortgage does not relieve
the prior Owner of personal liability for Assessments accruing against the Unit prior to the
date of such sale as provided in this Section.
12.12.10 Lien Surviving Sale. The lien arising under Section 12.12 shall
not be affected by the sale or transfer of the subject Unit except in the event of sale
through Foreclosure, as provided in Section 12.12.7.
12.12.11 Owner Liability. In addition to constituting a lien on the Unit,
each Assessment shall be the joint and several obligation of the Owner or Owners of the
Unit to which the same are assessed as of the time the Assessment is due. In a voluntary
conveyance the grantee of a Unit shall be jointly and severally liable with the grantor for
all unpaid Assessments against the latter up to the time of the grantor's conveyance,
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without prejudice to the grantee's right to recover from the grantor the amounts paid by
the grantee therefor. Suit to recover a personal judgment for any delinquent Assessment
shall be maintainable in any court of competent jurisdiction without foreclosing or waiving
the lien securing such sums.
12.12.12 Late Charges. The Association may from time to time establish
reasonable late charges and a rate of interest to be charged on all subsequent delinquent
Assessments or installments thereof. In the absence of another established non-usurious
rate, delinquent Assessments shall bear interest from the date of delinquency at the
maximum rate permitted under RCW 19.52.020 on the date on which the Assessments
became delinquent.
12.12.13 Attorneys' Fees. The prevailing party shall be entitled to
recover all attorneys' fees and costs incurred in connection with the collection of
delinquent Assessments, whether or not such collection activities result in suit being
commenced or prosecuted to judgment. In addition, the prevailing party shall be en titled
to recover costs and reasonable attorneys' fees if it prevails on appeal and in the
enforcement of a judgment.
12.12.14 Assessment Certificate. Upon written request, the Association
shall furnish to a Unit Owner or a Mortgagee a statement signed by an offi cer or
authorized agent of the Association setting forth the amount of unpaid Assessments
against that Unit. The statement shall be furnished within fifteen (15) days after receipt
of the request and is binding on the Association, the Board and every Unit Owner unless
and to the extent known by the recipient to be false.
12.13 Acceleration of Assessments. In the event any monthly Assessment of
special charge attributable to a particular Unit remains delinquent for more than sixty (60)
days, the Board may, upon fifteen (15) days' written notice to the Owner of such Unit,
accelerate and demand immediate payment of all, or such portion as the Board
determines, of the monthly Assessments and special charges which the Board
reasonably determines will become due during the next succeeding twelve (12) months
with respect to such Unit.
12.14 Delinquent Assessment Deposit; Working Capital.
12.14.1 Delinquent Assessment Deposit.
(a) A Unit Owner may be required by the Board or by the
Manager, from time to time, to make and maintain a depos it not less than one (1)
month or in excess of three (3) months’ estimated monthly Assessments and
charges, which may be collected as are other Assessments and charges. Such
deposit shall be held in a separate fund, be credited to the Unit owned by such
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Owner, and be for the purpose of establishing a reserve for delinquent
Assessments.
(b) Resort may be had thereto at any time when such Owner
is ten (10) days or more delinquent in paying their monthly or other Assessments
and charges. Said deposits shall not be considered as advance payments of
regular Assessments. In the event the Board should draw upon said deposit as a
result of a Unit Owner's delinquency in payment of any Assessments, said Owner
shall continue to be responsible for the immediate and full payment of said
delinquent Assessment (and all penalties and costs thereon) and thus the full
restoration of said deposit, and the Board shall continue to have all of the rights
and remedies for enforcing such Assessment payment and deposit restoration as
provided by this Declaration and by law.
12.14.2 No Refund of Deposits Upon Sale of Unit. Upon the sale of a
Unit, the Seller/Owner thereof shall not be entitled to a refund from the Association of any
deposit or reserve account made or maintained with respect to such Unit pursuant to this
or any other Section of this Declaration; rather, any such deposit or reserve account shall
continue to be held by the Association for the credit of such Unit, the Unit purchaser shall
succeed to the benefit thereof, and the Unit seller shall be responsible for obtaining
appropriate compensation from the purchaser.
12.14.3 Working Capital Contribution. The first purchaser of any Unit
shall pay to the Association, in addition to other amounts due, an amount equal to two (2)
months of monthly Assessments as a contribution to the Association's working capital.
Such working capital contributions shall not be used to defray Declarant's expenses in
completing the construction of the Condominium, to pay Declarant's contributions to
Association reserves, or to make up any deficits in the budget of the Association. Upon
the election of the first Board by Unit Owners other than Declarant, Declarant shall pay to
the Association as a working capital contribution an amount equal to two (2) months of
monthly Assessments for each of the Units then owned by Declarant. When a Unit owned
by Declarant is sold, Declarant may apply funds collected at closing from the purchaser
to reimburse itself for funds paid to the Association by the Declarant pursuant to the
preceding sentence for such contribution with respect to that Unit (in which event no
additional amount need be contributed to the Association under this Section 12.14.3 .
Such amount paid to the Association shall be non-refundable to such first purchaser of a
Unit. As used in this Declaration, the term “first purchaser” shall mean any person who
purchases a Unit from Declarant.
12.15 Special Charges for Services Provided to Unit Owners. Pursuant to the
authority granted the Association under RCW 64.34.304(j), a Unit Owner shall reimburse
the Association for expenses incurred or amount paid by the Association for any services
requested by such Unit Owner, including, but not limited to the following: (a) review of a
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request for approval by the Board of a prospective lease agreement for the rental of any
Unit, (b) preparation of a Resale Certificate, and (c) review of a request for approval by
the Board of any architectural, structural or related alteration to the interior or exterior of
any Unit.
All funds paid to the Association from any of the foregoing charges shall be
considered additional contributions to the Association’s working capital.
12.16 Assessments and Reserves. The projection of the budget of the
Association of Unit Owners for the operation and maintenance and other Common
Expenses of the Condominium is only an estimate. Initial Assessments may be higher
than shown in the projected budget, and Assessments are likely to increase over time.
Reserve projections may increase and may vary substantially from the actual
requirements of the Association imposed on Unit Owners.
12.17 Costs Relating to Portion of Condominium Subject to Development
Rights. In addition to the Declarant's obligation to pay Assessments as a Unit Owner as
provided above, the Declarant shall pay all actual expenses associated with the
development, construction, operation, maintenance, repair, replacement and insurance
of the property and buildings subject to the Development Right to create Units. The
Declarant shall pay the actual expenses associated with the improvements on the
Subsequent Phase Property until Assessments have commenced with respect to Units
created on that property pursuant to Article 2.
ARTICLE 13 -
INSURANCE
13.1 General Requirements. Commencing not later than the time of the first
conveyance of a Unit to a person other than Declarant, the Association shall maintain, to
the extent reasonably available a policy or policies and bonds necessary to provide
(a) property insurance, (b) commercial general liability insurance, (c) fidelity insurance,
(d) worker’s compensation insurance to the extent required by applicable laws, (e) liability
insurance for directors and officers, and (f) such other insurance as the Board deems
advisable. The Board shall review at least annually the adequacy of the Association’s
insurance coverage. All insurance shall be obtained from insurance carriers that are
generally acceptable for similar projects, authorized to do business in the state of
Washington, and meet the specific requirements of Fannie Mae or the Federal Home
Loan Mortgage Corporation, so long as any of them is a Mortgagee or Owner of a Unit,
except to the extent such coverage is not available or has been waived in writing by them.
All such insurance policies shall provide that coverage may not be cancelled or
substantially reduced without at least forty-five (45) days’ prior written notice (ten [10]
days for cancellation for nonpayment of premium) to the Association as the first named
insured therein.
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13.2 Property Insurance. The property insurance shall, at the minimum and
subject to such reasonable deductible as the Board may determine, provide all risk or
special cause of loss coverage in an amount equal to the full replacement cost of the
Common Elements, the Units, the interior partitions, equipment, fixtures, betterments and
improvements in or serving the Units installed by the Declarant, or by Unit Owners
intended as a permanent part of the Unit and personal property of the Association with
an “Agreed Amount Endorsement” or equivalent endorsements and, if required by Fannie
Mae or the Federal Home Loan Mortgage Corporation, construction code endorsements,
such as a “Demolition Cost Endorsement”, a “Contingent Liability from Operation of
Building Laws Endorsement,” an “Increased Cost of Construction Endorsement,” and
such other endorsements as Fannie Mae or the Federal Home Loan Mortgage
Corporation deems necessary and are available. The Association’s policy shall provide
a separate loss payable endorsement in favor of the Mortgagee of each Unit. The policy
may, in the discretion of the Board, cover loss due to earthquake. The Association or
insurance trustee, if any, shall hold insurance proceeds in trust for the Owner and their
Mortgagees, as their interests may appear. Each Owner and the Owner’s Mortgagee, if
any, shall be beneficiaries of the policy in accordance with the interest in the Common
Elements appertaining to the Owner’s Unit. Certificates of insurance shall be issued to
each Owner and Mortgagee upon request. The Owne r of a Unit shall be responsible, up
to the amount of the deductible under the Association’s policy, for (a) damage or loss
within the Owner’s Unit or to equipment for which the Owner is responsible under
Section 11.4; (b) damage to another Unit or to the Common Elements resulting from the
negligence or misconduct of the Unit Owner or tenant of the Owner’s Unit; or (c) damage
resulting from faulty or leaking plumbing fixtures or pipes, sinks, bathtubs, toilets,
dishwashers, washers, including any connecting hoses or drains in or serving only the
Owner’s Unit. Each Owner of a Unit shall promptly advise the Association in writing of
any betterment or improvement intended as a permanent part of the Unit costing Two
Thousand Five Hundred Dollars ($2,500) or more.
13.3 Commercial General Liability Insurance. The liability insurance coverage
shall insure the Board, the Association, the Owners, the Declarant, and the Managing
Agent, and cover all of the Common Elements in the Condominium with a “Severability of
Interest Endorsement” or equivalent coverage which would preclude the insurer from
denying the claim of an Owner because of the negligent acts of the Association or of
another Owner, and shall cover liability of the insureds for property damage and bodily
injury and death of persons arising out of the operation, maintenance and use of the
Common Elements, host liquor liability, employers’ liability insurance, automobile liability
insurance, and such other risks as are customarily covered with respect to residentia l
condominium projects of similar construction, location and use. The limits of liability shall
be in amounts generally required by Mortgagees for projects of similar construction,
location and use, but shall be at least Two Million Dollars ($2,000,000) c ombined single
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limit for bodily injury and property damage per occurrence, and Five Million Dollars
($5,000,000) general aggregate.
13.4 Fidelity Insurance. The required fidelity insurance shall afford coverage
to protect against dishonest acts on the part of officers, directors, trustees and employees
of the Association, and all other persons who handle or are responsible for handling funds
of or administered by, the Association. The Managing Agent shall maintain fidelity
insurance for its officers, employees and agents who handle or who are responsible for
handling funds of, or funds administered by the Association. All such fidelity insurance
shall name the Association as an obligee and shall be not less than the estimated
maximum of funds, including reserve funds, in custody of the Association at any time
during the term of each policy, but in no event shall the aggregate amount of insurance
be less than three (3) months’ aggregate Assessments. The policy shall contain waivers
of any defense based upon the exclusion of persons who serve without compensation
from any definition of “employee” or similar expression.
13.5 Insurance Trustee; Power of Attorney. The named insured under the
policies referred to in Sections 13.2, 13.3 and 13.4 shall be the Association, as trustee for
each of the Owners in accordance with their respective interests in the Condominium.
The insurance proceeds may be made payable to any trustee with which the Association
enters into an insurance trust agreement, or any successor trustee, wh o shall have
exclusive authority to negotiate losses under the policies. Subject to the provisions of
Section 13.8, the proceeds must be disbursed first for the repair or restoration of the
damaged property, and Unit 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 restored or the Condominium is terminated. Each Owner
appoints the Association or any insurance trustee or successor trustee designated by the
Association as attorney-in-fact for the purpose of purchasing and maintaining such
insurance, including the collection and appropriate disposition of the proceeds thereof,
the negotiation of losses and execution of releases of liability, the execution of all
documents and the performance of all other acts necessary to accomplish such purposes.
13.6 Additional Policy Provisions. The insurance obtained pursuant to
Sections 13.2 and 13.3 shall contain the following provisions and limitations:
13.6.1 Each Unit Owner is an insured person under the policy with
respect to liability arising out of the Owner's interest in the Common Elements or
membership in the Association.
13.6.2 Such policies shall not provide for contribution by or
assessment against Mortgagees or become a lien on the property superior to the lien of
a first Mortgagee.
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13.6.3 If, at the time of the loss under the policy, there is other
insurance in the name of the Unit Owner covering the same risk covered by the policy,
the Association’s policy provides primary insurance.
13.6.4 Coverage shall not be prejudiced by (a) any act, omission or
neglect of the Owners of Units when such act or neglect is not within the scope of the
Owner’s authority on behalf of the Association, or (b) failure of the Association to comply
with any warranty or condition with regard to any portion of the premises over which the
Association has no control.
13.6.5 A waiver of subrogation by the insurer as to any and all claims
against the Association, the Owner of any Unit, and/or their respective agents, members
of the Owner’s household, employees or lessees, and of any defenses based upon co -
insurance or upon invalidity arising from the acts of the insured.
13.6.6 A standard mortgagee clause which shall:
(a) Provide that any reference to a mortgagee in the policy
shall mean and include all Mortgagees of any Unit or Unit lease or sublease in their
respective order of preference, whether or not named therein;
(b) Provide that such insurance as to the interest of any
Mortgagee shall not be invalidated by any act or neglect of the Board or Owners
or any persons under any of them;
(c) Waive any provision invalidating such mortgage clause by
reason of the failure of any Mortgagee to notify the insurer of any hazardous use
or vacancy, any requirement that the Mortgagee pay any premium thereon, and
any contribution clause; and
(d) Provide that, without affecting any protection afforded by
such mortgage clause, any proceeds payable under such policy shall be payable
to the Association or the insurance trustee.
13.7 Owner’s Individual Insurance. An insurance policy issued to the
Association does not prevent an Owner from obtaining insurance for the Owner’s own
benefit. Each Unit Owner shall be required to obtain and maintain standard condominium
unit owners insurance designating the Association as an “Additional Insured” under the
Owner’s policy. The Board may establish, in the Rules and Regulations, the minimum
coverage for Owners’ policies (provided that such coverage may never be less than the
deductible on the Association’s property insurance). The Association shall have the right,
but not the obligation, to monitor the maintenance of such insurance by Unit Owners, and
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shall have the right, but not the obligation, to obtain such insurance for the Unit Owne r if
the Owner fails to obtain or maintain, and specially assess the cost to the Unit Owner.
13.8 Insurance Proceeds. Any portion of the Condominium for which insurance
is required under this Article which is damaged or destroyed shall be repaired or replaced
promptly pursuant to Article 14 unless (a) the Condominium is terminated; (b) repair or
replacement would be illegal under any state or local health or safety statute or ordinance;
or (c) Owners holding at least eighty percent (80%) of the votes in the Association,
including every Owner of a Unit or Limited Common Element which will not be rebuilt, and
Owners other than the Declarant holding at least eighty percent (80%) of the votes in the
Association, excluding votes held by the Declarant, vote not to reb uild. The cost of repair
or replacement in excess of the deductible, insurance proceeds and reserves is a
Common Expense. The Owner of each Unit shall be responsible for the amount of the
deductible applicable to damage or loss within the Owner’s Unit. If all of the damaged or
destroyed portions of the Condominium are not repaired or replaced, (i) the insurance
proceeds attributable to the damaged Common Elements shall be used to restore the
damaged area to a condition compatible with the remainder of th e Condominium; (ii) the
insurance proceeds attributable to Units and Limited Common Elements which are not
rebuilt shall be distributed to the Owners of those Units and the Owners of the Units to
which those Limited Common Elements were allocated, or to lienholders, as their
interests may appear; and (iii) the remainder of the proceeds shall be distributed to all
Unit Owners or lienholders, as their interests may appear, in proportion to the Interest in
Common Elements of each Unit. If the Unit Owners vote not to rebuild any Unit, that
Unit’s Allocated Interests are automatically reallocated upon the vote as if the Unit had
been condemned under Article 15, and the Association promptly shall prepare, execute
and record an amendment to this Declaration reflecting the reallocations.
Notwithstanding the provisions of this Section, RCW 64.34.268 governs the distribution
of insurance proceeds if the Condominium is terminated.
ARTICLE 14 -
DAMAGE OR DESTRUCTION; RECONSTRUCTION
14.1 Definitions; Significant Damage; Repair; Emergency Work.
14.1.1 As used in this Article, the term "Significant Damage" means
damage or destruction, whether or not caused by casualty, to any part of the Property
which the Board is responsible to maintain or repair (a) for which funds are not available
in the maintenance and repair or contingency budget of the Association to make timely
repairs, and (b) which has a significant adverse impact on the habitability of any Unit or
the ability of an Owner or Owners to use the Property or any significant port ion of the
Property for its intended purpose.
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14.1.2 As used in this Article, the term "Repair" means to repair,
reconstruct, rebuild or restore the improvements which suffered Significant Damage to
substantially the same condition in which they existed prior to the damage or destruction,
with each Unit and the Common and Limited Common Elements having substantially the
same vertical and horizontal boundaries as before. Modifications to conform to then
applicable governmental rules and regulations or available m eans of construction may be
made.
14.1.3 As used in this Article the term "Emergency Work" shall mean
that work which the Board deems reasonably necessary to avoid further damage,
destruction or substantial diminution in value to the improvements and to reasonab ly
protect the Owners from liability arising out of the condition of the Property.
14.2 Initial Board Determinations. In the event of Significant Damage to any
part of the Condominium, the Board shall promptly, and in all events within thirty (30) days
after the date of Significant Damage, or, if the Significant Damage did not occur at a
particular identifiable time, after the date of its discovery, make the following
determinations with respect thereto employing such advice as the Board deems
advisable:
14.2.1 The nature and extent of the Significant Damage, together with
an inventory of the improvements and property directly affected thereby;
14.2.2 A reasonably reliable estimate of the cost to Repair the
Significant Damage, which estimate shall, if reasonably practicable, be based upon a firm
bid obtained from a responsible contractor;
14.2.3 The anticipated insurance proceeds, if any, to be available from
insurance covering the loss based on the amount paid or initially offered by the insurer;
14.2.4 The amount, if any, that the estimated cost of Repair exceeds
the anticipated insurance proceeds therefor and the amount of Assessment to each Unit
if such excess was paid as a Common Expense and specially assessed against all of the
Units in proportion to their Allocated Interest in the Common Elements; and
14.2.5 The Board's recommendation as to whether such Significant
Damage should be repaired.
14.3 Notice of Damage or Destruction. The Board shall promptly, and in all
events within thirty (30) days after the date of Significant Damage, provide e ach Owner
and each first Mortgagee with a written notice summarizing the initial Board’s
determination made under Section 14.2. If the Board fails to do so within said thirty (30)
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days, then any Owner or Mortgagee may make the determination required under
Section 14.2 and give the notice required under this Section.
14.4 General Provisions.
14.4.1 Duty to Restore. Any portion of the Condominium for which
insurance is required under this Article which is Significantly Damaged shall be repaired
promptly by the Association unless: (a) the Condominium is terminated; (b) repair would
be illegal under any state or local health or safety statute or ordinance; or (c) eighty
percent (80%) of the Unit Owners, including every Owner of a Unit or assigned Limited
Common Element which will not be repaired, vote not to repair. Even if the Significant
Damage is not to be Repaired, the Board shall still have authority to perform Emergency
Work. The cost of Repair in excess of insurance proceeds and reserves is a Common
Expense.
14.4.2 Damage Not Restored. If all or any portion of the damaged
portions of the Condominium are not repaired (regardless of whether such damage is
Significant): (a) the insurance proceeds attributable to the damaged Common Elements
shall be used to restore the damaged area to a condition compatible with the remainder
of the Condominium; (b) the insurance proceeds attributable to Units and Limited
Common Elements which are not repaired shall be distributed to the Owners of those
Units and the Owners of the Units to which those Limited Common Elements were
allocated, or to lienholders, as their interests may appear; and (c) the remainder of the
proceeds shall be distributed to all of the Unit Owners or lienholders, as their interests
may appear, in proportion to the Allocated Interests in the Common Elements of all the
Units.
14.4.3 Reallocation. If the Unit Owners vote not to Repair any Unit,
that Unit's Allocated Interests are automatically reallocated upon the vote as if the Unit
had been condemned under Article 15, and the Association promptly shall prepare,
execute and record an Amendment to the Declaration reflecting the reallocations.
14.5 Restoration By Board. If the damage (regardless of whether such damage
is Significant) is to be repaired pursuant to Section 14.4, then:
14.5.1 Contract and Contractors. The Board shall have the authority
to employ architects and attorneys, advertise for bids, let contracts to contractors and
others, and take such other action as is reasonably necessary to effectuate the Repair
and restoration. Contracts for such Repair and restoration shall be awarded when the
Board, by means of insurance proceeds and sufficient Assessments, has provision for
the cost thereof. The Board may further authorize the insurance carrier to proceed with
Repair upon satisfaction of the Board that such work will be appropriately carried out.
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14.5.2 Insurance Trustee. The Board may enter into a written
agreement in recordable form with any reputable financial institution, trust or escrow
company that such firm or institution shall act as an insurance trustee to adjust and settle
any claim for a loss in excess of Fifty Thousand Dollars ($50,000), or for such firm or
institution to collect the insurance proceeds and carry out the provisions of this Article.
14.6 Decision to Terminate. In the event of a decision to terminate the
Condominium and not to repair and restore damage and destruction, the Board may
nevertheless expend such of the insurance proceeds and funds of the Association as the
Board deems reasonably necessary for Emergency Work (which Emergency Work may
include but is not necessarily limited to removal of the damaged or destroyed
improvements and clearing, filling and grading the real property), and the remaining
funds, if any, and Property shall thereafter be held and distributed as provided in
RCW 64.34.268.
ARTICLE 15 -
CONDEMNATION
15.1 In General. If a Unit is acquired by condemnation, or if part of a Unit is
acquired by condemnation leaving the Unit Owner with a remnant of a Unit which may
not practically or lawfully be used for any purpose permitted by the Declaration, the award
must compensate the Unit Owner for the Owner's Unit and its appurtenant interest in the
Common Elements, whether or not any Common Elements are acquired. Upon
acquisition, unless the decree otherwise provides, that Unit's Allocated Interests are
automatically reallocated to the remaining Units in proportion to the respective Allocated
Interests of those Units before the taking, and the Association shall promptly prepare,
execute and record an Amendment to the Declaration reflecting the reallocations. Any
remnant of a Unit remaining after part of a Unit is taken under this Section is thereafter a
Common Element.
15.2 Partial Unit Condemnation. Except as provided in Section 15.1, if part of
a Unit is acquired by condemnation, the award must compensate the Unit Owner for the
reduction in value of the Unit and its appurtenant interest in the Common Elements,
whether or not any Common Elements are acquired. Upon acquisition, unless the decree
otherwise provides (a) that Unit's Allocated Interests are reduced in proportion to the
reduction in the size of the Unit, and (b) the portion of the Allocated Interests divested
from the partially acquired Unit are automatically reallocated to that Unit and the
remaining Units in proportion to the respective Allocated Interests of those Units before
the taking, with the partially acquired Unit participating in the reallocation on the basis of
its reduced allocated Interests.
15.3 Common Element Condemnation. If part of the Common Elements is
acquired by condemnation, the portion of the award attributable to the Common Elements
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taken shall be paid to the Owners based on their respective Allocated Interests in the
Common Elements. Any portion of the award attributable to the acquisition of a Limited
Common Element must be equally divided among the Owners of the Units to which that
Limited Common Element was allocated at the time of acquisition.
15.4 Recording of Judgment. The court judgment shall be recorded in every
county in which any portion of the Condominium is located.
15.5 Association to Represent Owners. The Association shall represent the
Unit Owners in any proceedings, negotiations, settlements or agreements regarding a
condemnation of any part of the Condominium, and any condemnation proceeds shall be
payable to the Association for the benefit of the Owners of affected Units and their
Mortgagees. Should the Association not act on the Owner's behalf in a condemnation
process, the affected Owners may individually or jointly act on their own behalf.
Ownership of condemnation proceeds, as between the Owners and Mortgagees of the
affected Units, shall be controlled by the terms of the mortgage agreements between the
respective Owners and their Mortgagees.
ARTICLE 16 -
COMPLIANCE WITH DECLARATION
16.1 Enforcement. Each Owner shall comply strictly with the provisions of this
Declaration, the Bylaws and administrative rules and regulations passed hereunder, as
the same may be lawfully amended from time to time, and with all decisions adopted
pursuant to this Declaration, the Bylaws and Association Rules. Failure to comply shall
be grounds for an action to recover sums due for damages, or injunctive relief, or both,
maintainable by the Board (acting through its officers on behalf of the Owners), or by the
aggrieved Owner on their own against the party (including an Owner or the Association)
failing to comply.
In the event of a dispute between the Declarant and the Association (or the Board
or any Owner), each party shall be solely responsible for payment of all legal fees incurred
by that party, regardless of the nature of the dispute or who may be the prevailing party.
In any action by a Unit Owner challenging the priority of any decision, action or inaction
by the Association or Board, or otherwise asserting that any such decision, action or
inaction violates the provisions of the Act, Declaration, Bylaws or Association Rules, the
opinions or votes of Board members shall be accorded no special evidentiary value.
16.2 No Waiver of Strict Performance. The failure of the Board in any one or
more instances to insist upon the strict performance of this Declaration, or of the Bylaws,
or to exercise any right or option contained in such documents, or to serve any notice or
to institute any action, shall not be construed as a waiver or relinquishment for the future
of such term, covenant, condition or restriction, but such term, covenant, condition or
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restriction shall remain in full force and effect. The receipt by the Board of any
Assessment from an Owner with knowledge of any such breach shall not be deemed a
waiver of such breach, and no waiver by the Board of any provision hereof shall be
deemed to have been made unless expressed in writing and signed by the Board. This
Section also extends to the Manager and to Declarant or Declarant's managing agent,
exercising the powers of the Board during the initial period of operation of the Association
and the Condominium development.
ARTICLE 17 -
LIMITATION OF LIABILITY
17.1 Liability for Utility Failure, Etc. Except to the extent covered by insurance
obtained by the Board pursuant to Article 13, neither the Association, the Board nor the
Manager (or the Declarant or Declarant's managing agent exercising the powers of the
Board) shall be liable for any failure of any utility or other service to be obtained and paid
for by the Board; or for injury or damage to person or property caused by the elements,
or resulting from electricity, noise, smoke, water, rain (or other liquid), dust or sand which
may lead or flow from outside or from any parts of Units, or from any of its pipes, drains,
conduits, appliances or equipment, or from any other places; or for inconvenience or
discomfort resulting from any action taken to comply with any law, ordinance or orders of
a governmental authority. No diminution or abatement of Common Expense
Assessments shall be claimed or allowed for any such utility or service failure, or for such
injury or damage, or for such inconvenience or discomfort.
17.2 No Personal Liability. So long as a Board member, Association committee
member, Association officer, Declarant or Declarant's managing agent exercising the
power of the Board has acted in good faith, without willful or intentional misconduct, upon
the basis of such information as may be possessed by such person, no such person or
entity shall be personally liable to any Owner or other party, including the Association, for
any damage, loss or prejudice suffered or claimed on account of any act, omission, error
or negligence, any discretionary decision or failure to make a discretionary decision by
such person in such person's official capacity. Without limiting the generality of the
foregoing, the term “discretionary decisions” shall include evaluating and deciding
whether to act in response to reports, investigations or recommendations received by
such person, and shall include deciding when to commence, defend, continue or settle
lawsuits or arbitration/mediation or other Legal Proceedings involving the Association or
Condominium (or part thereof). However, this Section shall not apply where the
consequences of such act, omission, error or negligence are covered by insurance
obtained by the Board pursuant to Article 13.
17.3 Indemnification of Board Members. Each Board member, Association
committee member or Association officer, the Declarant and the Manager shall be
indemnified by the Owners against all expenses and liabilities, including attorneys' fees,
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reasonably incurred by or imposed in connection with any proceeding to which they may
be a party, or in which they may become involved, by reason of being or having held such
position at the time such expenses or liabilities are incurred, except in such cases wherein
such person is adjudged guilty of intentional misconduct or a knowing violation of the law
in the performance of their duties, and except in such cases where such person has
participated in a transaction from which said person will personally receive a benefit in
money, property or services to which said person is not legally entitled. Provided that, in
the event of a settlement, the indemnification shall apply only when the Board approves
such settlement and reimbursement as being in the best interest of the Association. The
Association and each Owner shall defend, indemnify and hold Declarant harmless from
any claim, expense or liability based on the failure of the Association or such Owner to
comply with applicable duties and obligations under the Declaration, Association, Articles
or Bylaws, or Association Rules and Regulations, or under any warranty obtained or
issued by Declarant, or under applicable law.
ARTICLE 18 -
MORTGAGEE PROTECTION
18.1 Change in Manager. In the event that professional management is
employed by the Association, at least thirty (30) days' notice of any contemplated change
in the professional manager shall be given to any Eligible Mortgagee. The Association
shall not elect to terminate professional management and assume self -management
without the prior written approval of sixty-seven percent (67%) of the Owners and fifty-
one percent (51%) of all Eligible Mortgagees; provided that, such prior consent shall not
be required to change from one professional manager to another professional manager.
The fifty-one percent (51%) or more of Eligible Mortgagees may, a t any time by written
notice to the Association, require the employment of a professional manager by the
Association.
18.2 Abandonment of Condominium Status. Except when acting pursuant to
the provisions of the Act involving damage, destruction or condemnation , the Association
shall not, without prior written approval of both sixty-seven percent (67%) of all Eligible
Mortgagees and eighty percent (80%) of the Owners of record of the Units, seek by act
or omission to either (a) abandon or terminate the Condominium status of the Project, or
(b) abandon, encumber, sell or transfer any of the Common Elements.
18.3 Partitions and Subdivision. The Association shall not combine nor
subdivide any Unit or the appurtenant Limited Common Elements, nor abandon, partition,
subdivide, encumber or sell any Common Elements, or accept any proposal so to do,
without the prior written approval of fifty-one percent (51%) of all Eligible Mortgagees and
sixty-seven percent (67%) of all Owners of record of the Units, and without unanimous
approval of the Eligible Mortgagees and Owners of the Units so affected.
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18.4 Change in Percentages. The Association shall not make any Material
Amendment (as defined in Section 21.7) to this Declaration or Bylaws (including changes
in the percentages of interest in the Common Elements) without the prior written approval
of fifty-one percent (51%) of all Eligible Mortgagees and sixty-seven percent (67%) of all
Owners of record of the Units, and without unanimous approval of the Eligible Mortgagees
and Owners of the Units for which the percentages would be changed.
18.5 Copies of Notices. A Mortgagee of a Unit (and any insurer or guarantor
of such Mortgage) shall be entitled to receive timely written notice: (a) that the
Owner/Mortgagor of the Unit has for more than sixty (60) days failed to meet any
obligation under the Condominium documents; (b) of all meetings of the Association and
be permitted to designate a representative to attend all such meetings; (c) of any
condemnation loss or casualty loss affecting the Common Elements resulting in a loss
greater than ten percent (10%) of the annual budget or any Unit insured by the
Association in which the Eligible Mortgagee has an interest; (d) of any lapse, cancellation
or material modification of insurance policies or fidelity bonds maintained by the
Association; (e) any proposal to terminate the Declaration or dissolve the Association at
least sixty (60) days before any action taken; (f) all Material Amendments to the
Declaration, Articles of Incorporation or Bylaws; (g) any Extraordinary Actions of the
Association; and (h) any proposed action that requires the consent of a specified
percentage of Mortgagees. To be entitled to receive notices under this Section 18.5, the
Mortgagee (or Mortgage insurer or guarantor) must send a written request to the
Association stating both its name and address and the Unit number or address of the Unit
on which it has (or insures or guaranties) the Mortgage.
18.6 Effect of Declaration Amendments. No Amendment of this Declaration
shall be effective to modify, change, limit or alter the rights expressly conferred upon
Mortgagees in this instrument with respect to any unsatisfied Mortgage duly recorded
unless the Amendment shall be consented to in writing by the holder of such Mortgage.
Any provision of this Declaration conferring rights upon Mortgagees which is consistent
with any other provision of said Declaration or the Bylaws shall control over such other
inconsistent provisions.
18.7 Insurance.
18.7.1 Board Duties. With respect to a first Mortgagee of a Unit, the
Board shall:
(a) Furnish such Mortgagee with a copy of any insurance
policy or evidence thereof which is intended to cover the Unit on which such
Mortgagee has a lien;
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(b) Require an insurance carrier to give the Board and any
and all insureds (including such Mortgagees) at least thirty (30) days’ written notice
before canceling, reducing the coverage or limits, or otherwise substantially
modifying any insurance with respect to the property on which the Mortgagee has
a lien (including cancellation for a premium non-payment);
(c) Not make any settlement of any insurance claims for loss
or damage to any such Unit, Common or Limited Common Element exceeding
Five Thousand Dollars ($5,000) without the approval of such Mortgagee; provided
that, the withholding of such approval shall not be unreasonable or in conflict with
the provisions of Article 14;
(d) Give such Mortgagee written notice of any loss or taking
affecting Common Elements, if such loss or taking exceeds Ten Thousand Dollars
($10,000);
(e) Give such Mortgagee written notice of any loss, damage
or taking affecting any Unit or Limited Common Elements in which it has an
interest, if such loss, damage or taking exceeds One Thousand Dollars ($1,000);
and
(f) Cause any insurance carrier to include in the insurance
policy a standard mortgage clause naming any Mortgagee who makes written
request to the Board to be so named.
18.7.2 Additional Policy Provisions. In addition, the insurance policy
acquired shall:
(a) Provide that any reference to a Mortgagee in such policy
shall mean and include any holders of Mortgages of any Unit or Unit lease, in their
respective order and preference, whether or not named therein;
(b) Provide that such insurance as to the interest of any
Mortgagee shall not be invalidated by any act or neglect of the Board or Unit
Owners or any persons claiming under any of them; and
(c) Waive any provision invalidating such Mortgage clause by
reason of the failure of any Mortgagee to notify the insurer of any hazardous use
or vacancy, any requirement that the Mortgagee pay any premium thereon, and
any contribution clause.
18.8 Inspection of Books. Owners, Mortgagees, insurers and guarantors of
any Mortgage on any Unit shall be entitled to inspect at all reasonable hours of weekdays
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(or under other reasonable circumstances) all of the Books and Records of the
Association, including current copies of this Declaration, Bylaws and other rules
governing the Condominium, and other books, records and financial statements of the
Owners Association (within a reasonable time following request); and, upon written
request of any holder, insurer or guarantor of any Mortgage, at no cost of the party so
requesting (or if this Project contains less than fifty (50) Units, upon the written request of
the holders of fifty-one percent (51%) or more of first Mortgages at their expense if an
audited statement is not otherwise available), to receive an annual audited financial
statement of the Association within ninety (90) days following the end of any fiscal year
of the Association.
18.9 Response to Notice. Whenever the consent or prior written approval of a
Mortgagee is required by the terms of this Declaration, it shall be deemed given by a
Mortgagee who fails to respond in writing within sixty (60) days of a writt en notice
describing the matter subject to such consent or approval if such notice was delivered by
certified or registered mail with a return receipt requested.
18.10 Approval by Veterans Administration. During the period of Declarant
Control prior to the Transition Date, the following provisions shall apply if the Veterans
Administration (“VA”) has guaranteed any loans secured by Units:
(a) Declarant must provide a copy of all Amendments to the
Declaration, Articles of Incorporation and Bylaws to the VA;
(b) Neither Declarant nor the Association may make any
Material Amendments to the Declaration, Articles of Incorporation or Bylaws
without the prior approval of the VA; and
(c) The Association may not take any Extraordinary Actions
without the approval of the VA.
ARTICLE 19 -
EASEMENTS
19.1 General. It is intended that in addition to rights under the Act, each Unit
has an easement in and through each other Unit and the Common and Limited Common
Elements for all support elements and utility, wiring, heat and service elements, and for
reasonable access thereto, as required to effectuate and continue proper operation of this
Condominium plan. In addition, each Unit and all Common and Limited Common
Elements are specifically subject to an easement for the benefit of each of the other Units,
and for heating, ventilation, air conditioning, fireplaces and associated flues or chimneys.
In addition, each Unit and all the Common and Limited Common Elements specifically
subject to easements as required for the intercom and electrical e ntry system, if any, for
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the electrical wiring and plumbing, for the air conditioning lines and equipment, if any, for
each Unit, for the vacuum system roughed-in in each Unit, if any, and for the master
antenna cable system, if any. Finally, each Unit as it is constructed is granted an
easement to which each other Unit and all Common and Limited Common Elements are
subject to the location and maintenance of all the original equipment and facilities and
utilities for such Unit. The specific mention or reservation of any easement in this
Declaration does not limit or negate the general easement for Common Elements
reserved by law.
19.2 Utility, Road and Other Easements. The Board, on behalf of the
Association and all Members thereof, shall have authority to g rant to private persons,
utility companies, municipalities or similar parties, utility, road and similar easements,
licenses and permits under, through or over the Common Elements, which easements
the Board determines are reasonably necessary to the ongoing development and
operation of the Property.
19.3 Association Functions.
19.3.1 Easement for Emergency, Security and Safety. Authorized
agents of the Association shall have the right, but not the obligation, and a perpetual
easement is hereby granted to the Association, to enter all portions of the Condominium,
including each Unit, for emergency, security and safety reasons. Except in emergencies,
entry into a Unit shall only be during reasonable hours and after notice to and permission
from the Owner thereof. This easement includes the right to enter any Unit to cure any
condition which increases the risk of fire or other hazard if an Owner fails or refuses to
cure the condition within a reasonable time after request by the Board, but does not
authorize entry into any Unit without permission of the Owner. The Association has a
perpetual easement to access Units on an annual basis (or more often, as the Board may
deem necessary) for fire sprinkler testing.
19.3.2 Easements for Maintenance and Enforcement. Authorized
agents of the Association shall have the right, but not the obligation, and a perpetual
easement is hereby granted to the Association, to enter all portions of the Condominium,
including each Unit, to (a) perform its maintenance responsibilities hereunder, if any, and
(b) make inspections to ensure compliance with this Declaration, Bylaws, rules and
applicable safety requirements (such as fire tests). Except in emergencies, entry into a
Unit shall only be during reasonable hours and after notice to and permissi on from the
Owner. This easement shall be exercised with a minimum of interference to the quiet
enjoyment to Owners' Units, and any damage shall be repaired by the Association at its
expense. The Association also may enter a Unit to abate or remove, usin g such force as
may be reasonably necessary, any structure, thing or condition which violates the
Declaration, the Bylaws or the rules. All costs incurred, including reasonable attorneys’
fees, shall be assessed against the violator as a Specific Assessment.
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19.4 Encroachments. Each Unit and all Common and Limited Common
Elements are hereby declared to have an easement over all adjoining Units and Limited
Common Elements for the purpose of accommodating any encroachment due to errors
in engineering, original construction, reconstruction, repairs, settlement or shifting or
movement of any portion of any Unit, or any other similar cause. There shall be valid
easements for the maintenance of said encroachments so long as they shall exist, and
the rights and obligations of Owners shall not be altered in any way by said encroachment,
settling or shifting; provided, however, in no event shall a valid easement for
encroachment be created in favor of an Owner or Owners if said encroachment occurred
due to the willful act or acts with full knowledge of said Owner or Owners (other than
Declarant). In the event a Unit or Common or Limited Common Element is partially or
totally destroyed and then repaired or rebuilt, the Owners agree that minor
encroachments over adjoining Units and Common and Limited Common Elements shall
be permitted, and there shall be valid easements for the maintenance of said
encroachments so long as they shall exist. The foregoing encroachments shall not be
construed as such so long as they shall exist. The foregoing encroachments shall not be
construed to be encumbrances affecting the marketability of title to any Unit.
19.5 Easements Reserved by the Declarant. The Declarant reserves an
easement over, across and through the Common Elements of the Con dominium for the
purposes of completing any unfinished Units or other improvements, exhibiting and
preparing Units for sale, making repairs required pursuant to any contract of sale, and
discharging the Declarant's obligations or exercising Development Rights or Special
Declarant Rights. The Declarant further reserves mutual non-exclusive easements over,
across and through the Common Elements of the Condominium (i.e., the land described
in Exhibit A, as it may from time to time be amended by the Declarant) and over any land
which is withdrawn from the Condominium pursuant to Article 2 (the "Withdrawn Land")
for the benefit of the Declarant and its successors and assigns as present and future
owners of the Withdrawn Land, and for the benefit of the Associati on and all Owners of
Units in the Condominium for ingress to and egress over the roadways and pathways of
the Condominium and the Withdrawn Land, the right to have access to and to tie into and
utilize any water, sanitary sewer, storm sewer, electricity, gas, telephone, cable, television
or other utility lines now or hereafter established in the Condominium and on the
Withdrawn Land. The easements reserved hereby shall not be exercised in a manner
that will overload or materially impair the use and enjoyme nt of the roadways, pathways
and utilities by Unit Owners or the present and future owners of the Withdrawn Land. The
easements reserved hereby shall mutually benefit the land described in Exhibit A, as it
may be amended, irrespective of whether that land is added to the Condominium,
withdrawn from the Condominium or is used for any other purpose. This Section 19.5
may not be altered or amended without the written consent of the Declarant.
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ARTICLE 20 -
PROCEDURES FOR SUBDIVIDING OR COMBINING
Subdivision and/or combining of any Unit or Units, Common Elements or Limited
Common Elements are authorized as follows:
20.1 Owner Proposal. Any Owner of any Unit or Units may propose any
subdividing or combining of any Unit or Units, and appurtenant Common Elements or
Limited Common Elements, in writing, together with complete plans and specifications for
accomplishing the same and a proposed Amendment to this Declaration, the Survey Map
and Plans covering such subdividing or combining, to the Board, which shall then noti fy
all other Unit Owners of the requested subdivision or combination.
20.2 Owner/Mortgagee Approval. Upon written approval of such proposal by
sixty-seven percent (67%) of the voting power of the Owners, and upon approval of sixty -
seven percent (67%) of the Eligible Mortgagees, and unanimous prior written approval of
the Mortgagees and Owners of the Units to be combined or subdivided, the Owners
making the proposal may proceed according to such plans and specifications; provided
that, the Board may in its discretion (but it is not mandatory that the Board exercise this
authority) require that the Board administer the work or that provisions for the protection
of other Units or Common Elements or reasonable deadlines for completion of the work
be inserted in the contracts for the work.
20.3 Survey Map and Plans. The changes in the Survey Map, if any, and the
changes in the Plans and Declaration shall be placed of record as Amendments to the
Survey Map, Plans, and Declaration of Condominium in accordance with the provi sions
of Section 21.1.
20.4 Allocated Interests. The Allocated Interests formerly allocated to the
subdivided Unit shall be reallocated to the new Units in any reasonable and equitable
manner prescribed by the Owner of the subdivided Unit. The Allocated Inter ests of the
new Unit resulting from a combination of Units shall be the aggregate of the Allocated
Interests formerly allocated to the Units being combined.
ARTICLE 21 -
AMENDMENT OF DECLARATION, SURVEY MAP AND PLANS, OR BYLAWS
21.1 In General. Except in cases of Amendments that may be executed by
Declarant (in the exercise of any Development Right), the Association (in connection with
Section 7.2 and Articles 14, 15 or 20, or termination of the Condominium) or certain Unit
Owners (in connection with Article 20, or termination of the Condominium), and except as
limited by Section 21.6, the Declaration, the Survey Map and Plans or the Bylaws may be
amended only by vote or agreement of the Owners, as provided in this Section 21.
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Notwithstanding the foregoing, Declarant may, without obtaining the vote or agreement
of Unit Owners or Eligible Mortgagees, amend the Declaration, the Survey Map and Plans
or the Bylaws to correct any typographical or factual errors.
21.2 Procedure for Proposing and Adopting Amendments. An Owner may
propose Amendments to this Declaration, the Survey Map and Plans or the Bylaws to the
Board. The proposed Amendment shall be submitted to the Members of the Association
for their consideration, if approved by a majority of the members of the Board. If an
Amendment is proposed by Owners with twenty percent (20%) or more of the votes in the
Association, then, irrespective of whether the Board concurs in the proposed Amendment,
it shall be submitted to the Members of the Association for their consideration at their next
regular or special meeting, for which timely notice must be given. Notice of a meeting at
which an Amendment is to be considered shall include the text of the proposed
Amendment. Amendments may be adopted at a meeting of the Association or by written
consent of the requisite number of persons entitled to vote, after notice has been given
to all persons (including Eligible Mortgagees) entitled to receive notices.
21.3 Percentage Approval Required for Amendments. Except as provided
otherwise in this Declaration, the percentages of approval of Owners and Eligible
Mortgagees required for adoption of Amendments to this Declaration and the Survey Map
and Plans are as follows:
21.3.1 Except as set forth otherwise in Articles 14 and 15 in the case
of damage or condemnation of the Property, any Amendment to a provision of the
Declaration establishing, providing for, governing or regulating the following (all of which
shall be deemed “Material Amendments”) shall require the consent of Owners holding at
least sixty-seven percent (67%) of the votes in the Association and fifty-one percent (51%)
of the Eligible Mortgagees: (a) voting rights; (b) Assessments, Assessment liens, or the
priority of Assessment liens; (c) reserves for maintenance, repair and replacement of
Common Elements; (d) responsibility for maintenance and repairs, reallocation of
interests of any portion of the Condominium; (e) rights to use Common Elements or
Limited Common Elements; (f) relocation of interests in Common Elements or Limited
Common Elements or rights to their use; (g) reallocation of interests in the Common
Elements or Limited Common Elements; (h) redefinition of any Unit boundaries;
(I) convertibility of Units into Common Elements or vice versa; (j) expansion or contraction
of the Condominium, or the addition, annexation or withdrawal of property to or from the
Condominium(except for withdrawal of property by Declarant pursuant to Article 2);
(k) imposition of any restrictions on leasing of Units; (l) imposition of any restrictions on a
Unit Owner's right to sell or transfer his or her Unit; (m) restoration or repair of the
Condominium (after a hazard damage or partial condemnation) in a manner other than
that specified in the Declaration; (n) any provision of Section 10.10, or (o) any change in
the Uses to which any Unit is restricted under Article 11 above (the reasonable regulation
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of such Uses deemed to not be a change in Use), or (p) any provisions that expressly
benefit Mortgagees. A Mortgagee who fails to respond within sixty (60) days of a written
request to approve an Amendment shall be deemed to have approved the request if such
request was delivered by certified or registered mail with a return receipt requested.
21.3.2 All other Amendments shall be adopted if consented to by the
Owners holding at least sixty-seven percent (67%) of the votes in the Association.
21.4 Challenge to Validity. No action to challenge the validity of an Amendment
adopted by the Association pursuant to this Article may be brought more than one (1)
year after the Amendment is recorded.
21.5 Execution and Recording. Amendments to the Declaration required by
the Act to be recorded by the Association shall be prepared, executed, recorded and
certified on behalf of the Association by any officer of the Association designated for that
purpose or, in the absence of designation, by the President of the Association. Every
Amendment to the Declaration must be recorded in every county in which any portion of
the Condominium is located, and is effective only upon recording. An Amendment shall
be indexed in the name of the Condominium and shall contain a cross -reference by
recording number to the Declaration and each previously recorded Amendment thereto.
All Amendments adding Units shall contain a cross-reference by recording number to the
Survey Map and Plans relating to the added Units and set forth all information required
by RCW 64.34.216(1).
21.6 Special Declarant/Development Rights. No Amendment may restrict,
eliminate or otherwise modify any Special Declarant or Development Right, or any other
right, power, benefit provided in the Declaration to Declarant (nor otherwise hinder the
business activities or expectations of, or benefits provided hereunder to, the Declarant)
without the consent of the Declarant.
Except to the extent expressly permitted or required by other provisions of the Act,
no amendment may create or increase Special Declarant Rights, increase the number of
Units (except by Declarant pursuant to Article 2), change the boundaries of any Unit, the
Allocated Interests of a Unit, or change the uses (as that term is defined in Section 1.8)
to which any Unit is restricted (pursuant to Article 11), in the absence of the vote or
agreement of the Owner of each Unit particularly affected, the Declarant (if the Declarant
owns a Unit or has the right to exercise any Special Declarant Rights) and the Owners of
Units to which at least ninety percent (90%) of the votes in the Association are allocated
other than the Declarant; provided, that a regulation, adopted pursuant to Article 11, of
uses to which any Unit is restricted shall not be deemed a change of such uses.
21.7 Survey Map and Plans Amendment. Except as otherwise provided
herein, the Survey Map and Plans may be amended by revised versions or revised
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portions thereof referred to and described as to effect an Amendment to this Declaration
adopted as provided for herein. Copies of any such proposed Amendment to the Survey
Map and Plans shall be made available for the examinat ion of every Unit Owner. Such
Amendment to the Survey Map and Plans shall also be effective, once properly adopted,
upon recording in the appropriate county office in conjunction with the Declaration
Amendment.
21.8 Lender Requirements. All Unit Owners covenant and agree, for
themselves and their heirs, successors and assigns, to vote in favor of and implement
any Amendments hereto which may be necessary to satisfy the requirements of Fannie
Mae, Federal Home Loan Mortgage Association, Veteran’s Administration and Federal
Housing Administration.
ARTICLE 22 -
MISCELLANEOUS
22.1 Service of Process. The person upon whom process may be served and
his address is set forth in Exhibit B. After termination of Declarant's management
authority under Article 10, service of process for the purposes provided in the Act may
also be made upon the President of the Association. The Board may at any time
designate a new or different person or agency for such purposes by filing an Amendment
to this Declaration limited to the sole purpose of making such change, and such
Amendment need only be signed and acknowledged by the then President of the
Association. The Declarant may, at any time before the Board is organized, change such
designation by Amendment to this Declaration signed and acknowledged only by
Declarant. Notwithstanding the foregoing, Declarant may, without obtaining the vote or
agreement of Unit Owners or Eligible Mortgagees, amend the Declaration, the Survey
Map and Plans or the Bylaws to correct any typographical or fa ctual errors.
22.2 Notices for All Purposes.
22.2.1 Delivery of Notice. Any notice permitted or required to be
delivered under the provisions of this Declaration or the Bylaws may be delivered either
personally or by mail. If delivery is made by mail, any such notice shall be deemed to
have been delivered forty-eight (48) hours after a copy has been deposited in the United
States mail, postage prepaid, for first class mail, addressed to the person entitled to such
notice at the most recent address given by such person to the Board, in writing, for the
purpose of service of such notice, or to the most recent address known to the Board.
Notice to the Owner or Owners of any Unit shall be sufficient if mailed to the Unit of such
person or persons if no other mailing address has been given to the Board by any of the
persons so entitled. Mailing addresses may be changed from time to time by notice in
writing to the Board. Notice to be given to the Board may be given to Declarant until the
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Board has been constituted, and thereafter shall be given to the President or Secretary
of the Board.
22.2.2 Mortgagee Notice. Upon written request therefor, and for a
period specified in such notice, the Mortgagee of any Unit shall be entitled to be sent a
copy of any notice respecting the Unit covered by its security instrument until the request
is withdrawn or the security instrument discharged. Such written request may be renewed
an unlimited number of times.
22.3 Mortgagee's Acceptance.
22.3.1 Priority of Mortgage. This Declaration shall not initially be
binding upon any Mortgagee of record at the time of recording of said Declaration, but
rather shall be subject and subordinate to said Mortgage.
22.3.2 Acceptance Upon First Conveyance. Unless otherwise
expressly approved by the purchaser of a Unit, Declarant shall not consummate the
conveyance of title of such Unit until said Mortgagee shall have accepted the provisions
of this Declaration and made appropriate arrangements, in accordance with the Act, for
partial release of Units with their appurtenant Limited Common Elements and Allocated
Interests in Common Elements from the lien of said Mortgage. The issuance and
recording of the first such partial release by said Mortgagee shall constitute its acceptance
of the provisions of this Declaration and the Condominium status of the Units remaining
subject to its Mortgage as well as its acknowledgment that such appropriate
arrangements for partial release of Units have been made; provided that, except as to the
Units so released, said Mortgage shall remain in full effect as to the entire Property.
22.4 Severability. The provisions hereof shall be deemed independent and
severable, and the validity or partial invalidity or enforceability of any one provision or
portion thereof shall not affect the validity or enforceability of any other provision hereof if
the remainder complies with the Act or as covenants affect the common plan.
22.5 Conveyances; Notices Required. The right of a Unit Owner to sell,
transfer or otherwise convey the Unit shall not be subject to any right of approval,
disapproval, first refusal or similar restriction by the Association or the Board, or anyone
acting on their behalf. An Owner intending to sell a Unit shall deliver a written notice to
the Board at least two (2) weeks before closing, specifying the Unit to be sold, the name
and address of the purchaser, the closing agent, and the title insurance company insuring
the purchaser's interest, and the estimated closing date. The Board shall have the right
to notify the purchaser, the title insurance company and the closing agent of the amount
of unpaid Assessments and charges outstanding against the Unit, whether or not such
information is requested. It is understood, however, that a violation of this Section shall
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not invalidate a sale, transfer or other conveyance of a Unit which is otherwise valid under
applicable law.
22.6 Transfer of Declarant's Powers. It is understood that Declarant, at any
time in the exercise of its sole discretion, may sell, assign, transfer, encumber or
otherwise convey to any person, upon such terms and conditions as Declarant may
determine, all of Declarant's rights, powers, privileges and authority arising hereunder by
virtue of Declarant's capacity as Declarant (which rights, powers, privileges and authority
are in addition to those arising from Declarant's ownership of one or more Units).
22.7 Effective Date. This Declaration shall take effect upon recording.
22.8 Reference to Survey Map and Plans. The Survey Map and Plans of the
Building referred to herein consists of four (4) sheets as prepared by CORE DESIGN,
INC., and was filed with the Recorder of King County, Washington, under File
No. ______________________.
ARTICLE 23 -
SPECIAL DECLARANT RIGHTS; DEVELOPMENT RIGHTS
23.1 Special Declarant Rights. As more particularly provided in this Article,
Declarant, for itself and any successor Declarant, has reserved the following Special
Declarant Rights:
23.1.1 Completion of Improvements. Declarant, Unit Owners, their
agents, employees and contractors shall have the right to complete improve ments and
otherwise perform work authorized by the Declaration, indicated on the Survey Map and
Plans, authorized by building permits, provided for under any purchase and sale
agreement between Declarant and a Unit purchaser, necessary to satisfy any expre ss or
implied warranty under which Declarant is obligated, or otherwise authorized or required
by law.
23.1.2 Sales Facilities of Declarant. Declarant, its agent, employees
and contractors shall be permitted to maintain during the period of sale of the
Condominium upon such portion of the Property as Declarant may choose, such facilities
as in the sole opinion of the Declarant may be required, convenient or incidental to the
construction, sale or rental of Units and appurtenant interests, including but not limite d to
a business office, storage area, signs, model units, sales office, construction office and
parking areas for all prospective tenants or purchasers of Declarant. Any such facilities
not designated a Unit by the Declaration is a Common Element, and if Declarant ceases
to be a Unit Owner, the Declarant ceases to have any rights with regard thereto unless it
is removed promptly from the Condominium, which Declarant shall have the right to do.
The provisions of this Section are subject to the provisions of state law and local
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ordinances. The number, size, location and relocation of such facilities shall be
determined from time to time by Declarant in the exercise of its sole discretion; provided
that, the maintenance and use of such facilities shall not u nreasonably interfere with a
Unit Owner's use and enjoyment of the Unit and appurtenant Limited Common Elements,
and those portions of the Common Elements reasonably necessary to use and enjoy such
Unit and Limited Common Elements.
23.1.3 Declarant Inspection and Repairs. Declarant shall have the
right, but not the obligation, to conduct inspections and tests from time to time of all or
any parts of the Condominium, in order to (a) ascertain the physical condition of the
improvements in the Condominium, (b) determine whether maintenance, repairs or
replacements of any such improvements are indicated, and (c) determine whether the
Association and Unit Owners have fully complied with the maintenance obligations set
forth in Section 11.4 and Exhibit E herein. Declarant shall pay all costs of such
inspections and tests made pursuant to this Section, shall have the right, but not the
obligation, to make such repairs as it deems appropriate, shall restore the affected portion
of the property to its condition immediately prior thereto, and shall indemnify the
Association and Unit Owners of any affected Units from any damage resulting therefrom.
Declarant shall have such rights of entry on, over, under, across and through the property
as may be reasonably necessary to exercise the rights described in this Section.
Declarant shall provide reasonable advance notice to the Association (and the Unit
Owners of any Unit in which inspections or repairs are to occur) of the inspections and
repairs, shall permit a representative of the Association to be present during the
inspections and repairs, and shall provide the Association with copies of the inspection
reports.
23.1.4 Declarant Right to Attend Association Meetings and Receive
Minutes and Notices. Until December 31 of the year that is six (6) years following the
calendar year in which the last Unit was added to the Condominium , (a) Declarant shall
have the right to attend all meetings of the Board and the Association; (b) the Association
shall send Declarant notices of such meetings at the same time notices are given to the
members of the Board or the Association, as the case may be, and copies of minutes of
all meetings of the Board and the Association; and (c) Declarant shall have the right to
inspect the Books and Records of the Association as further provided in Section 10.5.
Notices and minutes shall be given to Declarant in writing at the address specified in
Section 10.10, or in such other manner as Declarant shall specify.
23.1.5 Exercise of Development Rights. Declarant shall have the right
to exercise Development Rights, if any, under this Declaration and the Act.
23.2 Development Rights. The Declarant reserves the Development Right to
create up to thirty-five (35) additional Units and associated Limited Common Elements on
the Subsequent Phase Property, or to withdraw all or a portion of the property pursuant
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to Article 2. The Declarant shall be entitled to all income from the Subsequent Phase
Property until Units are created and sold. As more particularly provided in this Article , the
Declarant, for itself and any successor Declarant, has also reserved the following
Development Rights:
23.2.1 Subdivision and Combination. Declarant shall have the right to
subdivide or combine Units (owned by Declarant) or convert Units (owned by Declaran t)
into Common Elements. Whenever Declarant exercises a Development Right to
subdivide, combine or convert a Unit previously created into additional Units, Common
Elements, or both:
(a) If Declarant converts the Unit to Common Elements, the
Amendment to the Declaration must reallocate all the Allocated Interests of that
Unit among the other Units as if that Unit had been taken by condemnation under
Article 15.
(b) If Declarant converts the Unit entirely to Common
Elements, the Amendment to the Declaration must reallocate all of the Allocated
Interests of the Unit among the Units created by the subdivision in any reasonable
and equitable manner prescribed by the Declarant.
(c) If Declarant combines two (2) or more Units, the
Amendment to the Declaration must reallocate to the new Unit all of the Allocated
Interests formerly allocated to the Units so combined.
23.2.2 Different Parcels; Different Times.
(a) Any Development Right may be exercised with respect to
different parcels of real property at different times;
(b) No assurances are made as to final boundaries of such
parcels or as to the order in which those parcels may be subjected to the exercise
of each Development Right; and
(c) Even though a Development Right is exercised in any
portion of the real property subject to that right, that right need not be exercised in
all or in any other portion of the remainder of that Real Property.
23.2.3 Exercise of Development Rights. To exercise any Development
Right reserved under Section 23.2, the Declarant shall prepare, execute and record an
Amendment to the Declaration under Article 21 and comply with RCW 64.34.232.
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23.2.4 Grant Easements. Declarant may execute and grant, on its sole
signature, and on behalf of all Unit Owners, easements, dedications or similar
agreements, and conveyances to utility companies and municipal entities, over, under
and involving portions of the Common Elements in order to facilitate the development o r
operation of the Condominium.
23.2.5 Easement Agreement for Parking Spaces. Declarant may
execute an easement agreement with the owner of the property located directly to the
south of the Condominium pursuant to which thirteen (13) parking spaces will be reserved
for the exclusive and perpetual use by the Owners of Units in Buildings 9 through 12.
23.2.6 Termination of Development Rights. Except as otherwise
provided in this Declaration, the foregoing Development Rights shall terminate on the
earlier of either (a) seven (7) years after this Declaration is recorded, or (b) two (2) years
after the conveyance of all Units by Declarant; provided, that Declarant may voluntarily
terminate any or all of such Development Rights at any time by recording an Amendment
to the Declaration, which Amendment specifies which Development Right is thereby
terminated.
23.3 Liability for Damage. The Declarant is subject to liability for the prompt
repair and restoration, to a condition compatible with the remainder of the Condominium,
of any portion of the Condominium damaged by the exercise of rights reserved pursuant
to or created by this Declaration or the Act.
23.4 Declarant's Easements. Declarant has an easement through the
Common Elements as may be reasonably necessary for the purpose of discharging
Declarant's obligations or exercising Special Declarant Rights or Development Rights,
whether arising under the Act or reserved in the Declaration.
[Signature page to follow]
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DATED this _______ day of ________________, 2018.
DECLARANT:
POLYGON WLH, LLC,
a Delaware limited liability company
By: __________________________________
BRANDON SCHEIBNER
Its: Senior Vice President-Division President
Washington Division
By: _______________________
Its:
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this day personally appeared before me BRANDON SCHEIBNER to me known
to be the Senior Vice President-Division President, Washington Division of POLYGON
WLH, LLC, a Delaware limited liability company, that executed the within and foregoing
instrument, and acknowledged said instrument to be the free and voluntary act and deed
of said limited liability company, for the uses and purposes therein mentioned, and on
oath stated that he was authorized to execute said instrument.
In Witness Whereof I have hereunto set my hand and affixed my official seal this
___ day of _____, 2018.
(SEAL/STAMP)
Print Name:
NOTARY PUBLIC in and for the state of
___________ residing in
My appointment expires ___________
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A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On ___________________ before me, ________________________, Notary
Public, personally appeared ___________________________________, who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_______________________________
(Signature of Notary Public) Place Notary Seal Above
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EXHIBIT A
The legal description of the real property included in EARLINGTON VILLAGE, a
Condominium, is as follows:
1. PROPERTY.
PARCEL A:
THAT PORTION OF LOTS 5 AND 6, BLOCK 10, EARLINGTON ACRE TRACTS, ACCORDING TO THE PLAT
THEREOF RECORDED IN VOLUME 15 OF PLATS, PAGE 84, IN KING COUNTY, WASHINGTON, LYING
SOUTHWESTERLY OF THE SOUTHWEST MARGIN OF RENTON AVENUE, AS ESTABLISHED BY DEED
RECORDED MARCH 16, 1971 UNDER RECORDING NUMBER 7103160147.
TOGETHER WITH THAT PORTION OF LOT 4, BLOCK 10, EARLINGTON ACRE TRACTS, ACCORDING TO
THE PLAT THEREOF RECORDED IN VOLUME 15 OF PLATS, PAGE 84, IN KING COUNTY, WASHINGTON
LYING SOUTHWESTERLY OF RENTON AVE SOUTH.
EXCEPT THAT PORTION CONVEYED TO KING COUNTY FOR RENTON AVENUE BY INSTRUMENTS
RECORDED UNDER KING COUNTY RECORDING NO. 2633591 RECORDED MARCH 16, 1971, UNDER
RECORDING NO. 7103160165.
PARCEL B:
THAT PORTION OF LOT 7, BLOCK 10, EARLINGTON ACRE TRACTS, ACCORDING TO THE PLAT THEREOF
RECORDED IN VOLUME 15 OF PLATS, PAGE 84, IN KING COUNTY, WASHINGTON, LYING
SOUTHWESTERLY OF THE SOUTHWEST MARGIN OF RENTON AVENUE, AS ESTABLISHED BY DEED
RECORDED MARCH 16, 1971 UNDER RECORDING NUMBER 7103160147.
PARCEL C:
THE SOUTH 100 FEET OF LOT 3; TOGETHER WITH THOSE PORTIONS OF LOTS 1 AND 2, BLOCK 19,
EARLINGTON ACRE TRACTS, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 15 OF PLATS,
PAGE 84, IN KING COUNTY, WASHINGTON, LYING SOUTHWESTERLY OF THE SOUTHWEST MARGIN OF
RENTON AVENUE, AS ESTABLISHED BY DEED RECORDED JUNE 17, 1971 UNDER RECORDING NUMBER
7106170187.
PARCEL D:
THAT PORTION OF LOT 3, BLOCK 19, EARLINGTON ACRE TRACTS, ACCORDING TO THE PLAT THEREOF
RECORDED IN VOLUME 15 OF PLATS, PAGE 84, IN KING COUNTY, WASHINGTON, LYING
SOUTHWESTERLY OF THE SOUTHWEST MARGIN OF RENTON AVENUE, AS ESTABLISHED BY DEED
RECORDED MARCH 19, 1971 UNDER RECORDING NUMBER 710319010
EXCEPT THE SOUTH 100 FEET THEREOF.
PARCEL E:
LOTS 4, 5, 6 AND 7, BLOCK 19, EARLINGTON ACRE TRACTS, ACCORDING TO THE PLAT THEREOF
RECRODED IN VOLUME 15 OF PLATS, PAGE 84, IN KING COUNTY, WASHINGTON
Except THAT PORTION OF SAID LOT 4 LYING NORTHEASTERLY OF THE SOUTHWEST MARGIN OF
RENTON AVENUE, AS ESTABLISHED BY DEED RECORDED MARCH 16, 1971 UNDER RECORDING
NUMBER 7103160147.
EXCEPT THAT PORTION OF LOT 7, BLOCK 19, EARLINGTON ACRE TRACTS, ACCORDING TO THE PLAT
THEREOF RECORDED IN VOLUME 15 OF PLATS, PAGE 84, IN KING COUNTY, WASHINGTON, LYING
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WESTERLY OF THE FOLLOWING DESCRIBED LINE:
COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 7;
THENCE SOUTH 87°30'06" EAST 8.15 FEET ALONG THE SOUTH LINE OF SAID LOT 7 TO THE TRUE
POINT OF BEGINNING OF SAID LINE;
THENCE NORTH 00°22'46" EAST TO THE WEST LINE OF SAID LOT 7 AND THE END OF THIS DESCRIBED
LINE, BY KING COUNTY SUPERIOR COURT CAUSE NO. 07-2-33638-9, AND RECORDED DECEMBER 12,
2007 UNDER RECORDING NUMBER 20071212000820.
SITUATE IN THE COUNTY OF KING, STATE OF WASHINGTON.
Tax Parcel Number: 214480028502, 214480029500, 2144800 48708
2. PHASE 1 PROPERTY.
3. SUBSEQUENT PHASE PROPERTY (ALSO REFERRED TO AS FUTURE
PHASES).
4. DESCRIPTION OF ANY REAL PROPERTY (EXCEPT REAL PROPERTY
SUBJECT TO DECLARANT'S RESERVED DEVELOPMENT RIGHTS) WHICH
MAY BE ALLOCATED SUBSEQUENTLY AS LIMITED COMMON ELEMENTS
(OTHER THAN LIMITED ELEMENTS SPECIFIED IN SECTION 7 ABOVE);
See Paragraph 1 above.
5. DESCRIPTION OF ANY REAL PROPERTY TO WHICH ANY DECLARANT'S
RESERVED DEVELOPMENT RIGHTS APPLY:
See Paragraph 1 above.
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EXHIBIT B
(Phase 1)
UNIT FLOOR PLAN
BUILDING 1 FUTURE PHASE
BUILDING 2 FUTURE PHASE
BUILDING 3 PHASE I
3.1
3.2
3.3
3.4
BUILDING 4 FUTURE PHASE
BUILDING 5 FUTURE PHASE
BUILDING 6 FUTURE PHASE
BUILDING 7 FUTURE PHASE
BUILDING 8 FUTURE PHASE
BUILDING 9 FUTURE PHASE
BUILDING 10 FUTURE PHASE
BUILDING 11 FUTURE PHASE
BUILDING 12 FUTURE PHASE
BUILDING 13 FUTURE PHASE
BUILDING 14 FUTURE PHASE
NOTE 1: RECREATIONAL FACILITIES. None.
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NOTE 2: DESCRIPTION OF BUILDINGS AND FLOOR PLANS. There will be a
maximum of fourteen (14) Buildings containing sixty (60) Units in the
Condominium when all Phases have been established. All of the Buildings
are of wood frame construction. All Units are three (3) stories. All Units
have electric heat. The exact location of the Building and Units in Phase 1
are shown on the Survey Map and Plans.
FLOOR E16: Floor Plan E16 contains two (2) bedrooms, two and one-half
(2-1/2) bathrooms, a kitchen, living room, dining room and a library. Floor
Plan E16 contains approximately 1,315 square feet.
FLOOR PLAN E20: Floor Plan E20 contains three (3) bedrooms, two and
one-half (2-1/2) bathrooms, a kitchen, living room, dining room, and a
library. Floor Plan E20 contains approximately 1,655 square feet.
FLOOR PLAN E20 End: Floor Plan E20 End contains three (3) bedrooms,
two and one-half (2-1/2) bathrooms, a kitchen, living room, dining room, a
library, and in some Units, an office. Floor Plan E20 End contains
approximately 1,688 square feet.
FLOOR PLAN A20: Floor Plan A20 contains four (4) bedrooms, three and
one-half (3-1/2) bathrooms, a kitchen, living room, dining room, a library and
an office. Floor Plan A20 contains approximately 1,796 square feet.
FLOOR PLAN A20 End: Floor Plan A20 End contains four (4) bedrooms,
three and one-half (3-1/2) bathrooms, a kitchen, living room, dining room
and a library. Floor Plan A20 End contains approximately 1,816 square
feet.
NOTE 3: PARKING. When all Phases are established, there will be a total of one
hundred and twenty-four (124) parking spaces in the Condominium, sixty of
which are garage parking spaces and 64 of which are uncovered parking
spaces. Each Unit in Buildings 1 through 14 will be assigned one (1) garage
parking space attached to their Unit, and one (1) uncovered parking space.
The exact locations of all garage and uncovered parking spaces in Phase
1 are shown on the Survey Map and Plans. In Phase 1, there are a total of
four (4) garage parking spaces and four (4) uncovered parking spaces.
NOTE 4: AGENT FOR SERVICE OF PROCESS. The initial person upon whom legal
process may be served is RICHARD RAWLINGS. His address is 11624 SE
5th Street, Suite 100, Bellevue, WA 98005.
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NOTE 5: GARAGE AREAS NOT INCLUDED. The area shown for each Unit do not
include such Unit’s parking garage.
NOTE 6: UNIT AREAS. The Unit areas for the different floor plans shown on Note 2
are based on the architectural drawings. The actual Unit areas will be
determined when the Units are substantially complete. The methods for
measuring the area of a Unit in architectural drawings and for
Condominiums under the Act are different from one another. As a result,
the actual as-built Unit areas based on the Unit boundaries will be less than
the areas shown for each floor plan in Note 2 above.
NOTE 7: LIMITED COMMON ELEMENTS. The Limited Common Elements do or
will include when all Phases are established: (a) the one hundred and
twenty-four (124) parking spaces described in NOTE 3 above, and
(b) decks and patios adjacent or attached to Units, if any, Each garage and
uncovered parking space, deck and patio is assigned to and reserved for
the exclusive use of the Unit to which such garage and uncovered parking
space, deck or patio is adjacent to and has direct access . All Limited
Common Elements are shown on the Survey Map and Plans.
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EXHIBIT C
ALLOCATED INTERESTS AND
UNIT SHARE OF COMMON EXPENSES
3.1 25.00%
3.2 25.00
3.3 25.00
3.4 25.00
TOTAL 100.00%
NOTE 1: The Allocated Interests shown in Column 2 set forth each Unit's Percentage
Ownership Interest in the Common Elements and share of Common
Expense Liabilities. Each Unit's Allocated Interest was determined by
dividing one (1) by the total number of Units in the Condominium. The
Percentage Interests for some Units were rounded so that the total equaled
100%. As subsequent Phases are added, the Percentage Interests of Units
shown in Column 2 will be recalculated using the same formula.
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EXHIBIT D
SATELLITE DISH INSTALLATION RULES
Satellite dishes may be installed under the following conditions:
1 Satellite dishes must be gray in color and contain no logo or advertising.
2 A satellite dish may not exceed one meter in diameter.
3 All satellite dishes must be installed in a location approved by the Board. Before
scheduling an appointment for installation, Unit Owner must complete and submit
to the Association an ACC Request Form and obtain approval for the installation
from the Association. Request for installation must include a written installation
plan with details regarding building envelope penetrations.
4 The Unit Owner will be solely responsible for any and all personal injuries and
property damage arising either in connection with or as a result of the installation
and use of a satellite dish system. The Unit Owner shall indemnify and hold the
Association harmless against any and all claims, lawsuits, losses, liabilities or
expenses of any kind or nature whatsoever (including attorneys’ fees and costs)
arising as a result of any such personal injuries or property damage.
* The foregoing rules will be deemed automatically modified as necessary to comply
with federal law.
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EXHIBIT E
MAINTENANCE SCHEDULE
Refer to the Maintenance Manual provided to the Board and Property Manager for
detailed instructions and product manufacturer recommendations for use and care.
Inspection
Item Frequency Maintenance Interval
Building Exteriors
Attic spaces Annually As needed
Building Penetrations
(vents, etc.) Annually As needed
Caulking Semi-annually As needed
Columns Annually As needed
Crawl spaces Annually As needed
Deck railings Annually As needed
Decks & Patios Annually As needed
Doors Annually As needed
Eaves & Soffits Annually As needed
Flashing Semi-annually As needed
Garage door mechanism Annually As needed
Garage doors Annually As needed
Gutters & downspouts Annually As needed
Painted surfaces Semi-annually As needed
Roofs Annually As needed
Satellite dishes,
antennas, etc. Annually As needed
Siding Annually As needed
Trim Semi-annually As needed
Walls, floors, roofs After all seismic
events As needed
Windows Annually As needed
Dryer vents Bi-monthly As needed.
Minimum: annually
Dryer vent hoses Annually As needed
Gutters & downspout cleaning Semi-annually Minimum: annually
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Irrigation system
Proper operation Monthly while in use As needed adjustments/
repairs
Winterize/re-energize Twice annually April, energize/
October, winterize
Drainage system,
Storm drains Annually Clean drains annually,
repair as needed
Landscaping
Mowing & Trimming Weekly/Bi-weekly depending
on season
Fertilize Semi–annually
Remove/replace dead plants Monthly Monthly
Site Fixtures
Asphalt paving Annually As needed
Building fire sprinkler
systems Annually As needed
Common area lighting Annually As needed
Curbs, gutters, sidewalks Annually As needed
Fencing/divider walls Annually As needed
Hose bibs Annually As needed
Light bulbs Monthly As needed
Parking, road and
curb striping Annually As needed
Signage and monuments Monthly As needed
Stairs and steps Twice annually As needed
Underground utilities Annually As needed