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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Russell F. Tousley,P.S.
Tousley Brain Stephens PLLC
700 Fifth Avenue, 56th floor
Seattle,WA 98104-5056
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS.
EASEMENTS AND RESERVATIONS
THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS,
EASEMENTS AND RESERVATIONS (this "Declaration") is made this day of
2004, by 0 AKESDALE COMMERCE CENTER, LLC, a Delaware
Limited Liability Company("Declarant"),with respect to the following:
RECITALS:
A. Declarant i s the fee owner o f certain real property 1 ocated i n the City o f
Renton, County of King, State of Washington as more particularly described in Exhibit A
attached hereto and made a part hereof("Covered Property"). Declarant hereby imposes
all of the terms and conditions of this Declaration upon the Covered Property.
B. Declarant deems it desirable to establish certain covenants, conditions,
restrictions, reservations and easements upon the C overed Property regarding reciprocal
access and shared use of storm drainage facilities, utilities, roadways and wetlands, all for
the purpose of maintaining, enhancing and protecting the value, desirability and
attractiveness of the Covered Property as well as enhancing the quality of improvements
within the Covered Property.
C. Declarant will hereafter hold and convey title to all of the Covered Property
subject to certain protective covenants, conditions, restrictions, and easements set forth
below.
NOW, THEREFORE, Declarant hereby covenants and declares that all of its
interests, as such interests may from time to time appear in and to the Covered Property,
shall be held and conveyed, if at all, subject to and in compliance with the following
covenants, conditions, restrictions, reservations and easements which are hereby declared
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Section 1.08 "Common Expenses" shall mean the actual and estimated expenses
incurred or anticipated to be incurred by the Association for the general benefit of all Lots,
including any reasonable reserve, as the Board may find necessary and appropriate
pursuant to this Declaration, the Bylaws, and the Articles, including,without limitation,the
costs of performing the Association's responsibilities under this Declaration. Common
Expenses shall not include any expenses incurred for initial development or other original
construction costs unless approved by Owners holding a majority of the votes in the
Association after the Transition Date.
Section 1.09 "Covered Property" shall mean the real property described in
Exhibit A.
Section 1.10 "Declarant" shall mean Oakesdale Commerce Center LLC, a
Delaware limited liability company which is authorized and in good standing to do
business in the State of Washington, or any successor in interest to Declarant by merger or
express assignment of the rights of Declarant as permitted hereunder by an instrument
executed by Declarant, recorded with the County Recorder of King County.
Section 1.11 "Detention Pond System" shall mean, collectively, all storm water
detention ponds, related pump structures, controls, fencing and any relating improvements
and bioswales serving any portion of the Covered Property, except for lines carrying water
to the detention ponds and located outside Tract B of the Covered Property.
Section 1.12 "Development Period" shall mean and refer to that period of time
defined in Article 7 of this Declaration.
Section 1.13 "Equivalent Units"has the meaning set forth in Section 3.03.
Section 1.14 "Governing Documents" shall mean a collective term referring to
this Declaration, the Bylaws and the Articles, as each may be amended from time to time.
Section 1.15 "Lot" shall mean a portion of the Covered Property shown on the
Plat, as Lot W1, W2, W3, W4, W5, W6, W7 or W8, provided that if any of such Lots is, in
the future, subdivided or re-subdivided, whether by plat or deed, in compliance with this
Declaration and applicable law, each lot or parcel created by such subdivision shall be
considered a Lot hereunder, and the votes and liability for assessments shall be recomputed
for each lot or parcel created by subdivision in accordance with Section 3.03.
Section 1.16 "Mortgage" shall mean any first mortgage, deed of trust, sale and
leaseback use for financing purposes, or other security instrument, and any replacements,
renewals, amendments, modifications, extensions or refinancings thereof.
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Section 1.17 "Mortgagee" shall mean the beneficial owner of any encumbrance
created by a Mortgage and, in the case of a sale and leaseback,the leaseback lessor.
Section 1.18 "Mortgagor" shall mean the party executing a Mortgage, which
shall include the trustor under the deed of trust and, in the case of a sale and leaseback, the
leaseback lessee.
Section 1.19 "Owner" shall mean one or more persons or entities who alone or
collectively are the record owner(s) of fee simple title to a Lot, including Declarant, the
vendee under an installment land sales contract, but excluding those having any such
interests merely as security for the performance of an obligation. If the ownership interest
of any building or improvement on any portion of the Covered Property is severed from
the Lot, whether by lease or by deed, the Owner(s) of the interest in the Lot and not the
building or improvement shall be deemed an Owner hereunder.
Section 1.20 "Permittee" shall mean any and all of the Owner's tenants,
occupants, licensees, invitees and employees.
Section 1.21 "Person"shall mean a natural person, a corporation, a partnership, a
trustee, a limited liability company, or any other legal entity.
Section 1.22 "Plat" shall mean and refer to the Binding Site Plan LUA-03-089-
BSP, recorded in the Records of King, County, Washington, under Recording No.
Section 1.23 "Special Assessment" shall mean assessments levied in accordance
with Section 8.04 of this Declaration.
Section 1.24 "Specific Assessment" shall mean assessments levied in accordance
with Section 8.05 of this Declaration.
Section 1.25 "Tract" shall mean a portion of the Covered Property shown on the
Plat as Tract A or Tract B.
Section 1.26 "Transition Date" shall mean and refer to that date defined in
Section 5.01 of this Declaration.
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ARTICLE 2
EASEMENTS
Section 2.01 Easement for Ingress,Egress and Traffic Circulation.
(a) Grant of Easements. Declarant hereby reserves to itself and
subsequent Owners of Lots and their respective Permittees, non-exclusive easements (the
"Access Easements") over and across the roadway portions, as they exist from time to
time, of the Common Area of the Lots on the Covered Property (the "Access Easement
Area") for the purposes of vehicular and pedestrian ingress and egress and traffic
circulation from Oakesdale Avenue or from Southwest 34th Street to each Lot. Declarant
also reserves to Declarant and the Association non-exclusive easement in, on and over the
Common Area for ingress, egress, maintenance, repair, installation, replacement and
reconstruction of necessary improvements, access, use and enjoyment and for such other
purposes as Declarant or the Association reasonably determines appropriate under the
terms and conditions of this Declaration. The foregoing reservation also includes the right
to grant additional easements to those Persons and for those purposes as Declarant or the
Association, as the case may be, reasonably deems appropriate. Nothing in this
Section 2.01 shall prohibit any Owner from further improving, using or granting easements
over, under, and across the Owner's own Lot for any lawful purposes, including without
limitation, construction of permanent structures and the creation of utility easements and
installations, provided such improvements, uses or easements do not materially restrict the
rights of ingress, egress and/or traffic circulation established herein.
(b) Restrictions on Parking. No delivery or service trucks servicing
the business operations located on any of the Lots shall be permitted to park in any parking
lot located on any portion of the Covered Property other than the Lot being served by such
delivery or service truck, unless otherwise permitted in writing by Declarant or, after the
Transition Date, the Association. The Access Easement Area may be used only for ingress
and egress t o each Owner's Lot, and: (i) in no e vent s hall t here b e any r ight t o s hared
parking among the Lots unless agreed to by the Owners of the affected Lots, (ii) an Owner
shall not alter, change, and/or modify the location of the parking stalls, curbs, or any other
parking facility to encroach materially upon the Access Easement without the prior written
consent of Declarant (or if Declarant no longer owns an interest in the Covered Property,
the Association), (iii) such parking shall not interfere with the use of the Access Easement
for pedestrian and vehicular ingress, egress, passage and/or delivery to the Lots, and (iv)
no portion o f t he A ccess E asement Area s hall b e u sed for repair, storage,m aintenance,
improvement or overnight parking of any vehicles whatsoever. No trailers, recreational
vehicles or other heavy duty or oversized vehicles shall be permitted to stage, load, unload,
or park in the Access Easement Area at any time. If any vehicle utilizing the Access
Easement violates any of the foregoing restriction(s), an Owner shall have the right, but
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not the obligation, to remedy such violation(s) pursuant to all applicable laws, regulations,
and ordinances and shall have the right to cause such vehicle to be removed from the
Access Easement Area at no cost to said Owner.
Section 2.02 Easements for Storm Water Drainage and Utilities
(a) Easements for Storm Water Drainage Systems. Declarant hereby
reserves to itself and subsequent Owners of each and every Lot, a non-exclusive easement
for storm water flow through the storm water drainage facilities constructed on the Covered
Property and depicted on the storm drainage plan map attached hereto as Exhibit B
("Common Storm Water Facilities") to utilize such Common Storm Water Facilities for
drainage of storm water from each Lot to the Detention Pond System. Declarant's
reservation of the easements pursuant to this Section 2.02(a) is without representation or
warranty as to the capacity of the Common Storm Water facilities.
(b) Easements for Utilities. Declarant hereby reserves to itself and
subsequent Owners of each and every Lot, to the Association, and to the designees of
Declarant or the Association (which may include, without limitation, any governmental or
quasi-governmental entity, and any utility company): (i) non-exclusive easement upon,
across, over, and under all of the Covered Property (but not through or under a building or
other structure), for ingress, egress, installation, monitoring, replacing, repairing, and
maintaining devices for: sending or receiving data or other electronic signals; security and
similar systems; street lights; all utilities, including, but not limited to, water, sewer,
telephone, gas, and electric lines and meters; and otherwise as may be necessary, in the
sole discretion of Declarant or, after the Transition Date, the Association, for the
performance of the Association's maintenance responsibilities under this Declaration; and
(ii) the non-exclusive right and power to grant such specific easements over the Covered
Property (but not through or under a structure) as may be necessary, in the sole discretion
of Declarant, in connection with the orderly development of any portion of the Covered
Property. The Owner of any property to be burdened by any specific easement granted
pursuant to this Section 2.02(b) shall be given written notice in advance of the grant. The
location of any easement granted pursuant to this Section 2.02(b) outside any area which
may have been reserved for such purpose on a recorded plat or binding site plan shall be
subject to the written approval of the Owner of the property burdened by that easement.
Upon the exercise of any easement pursuant to this Section 2.02(b), the party exercising
the easement shall (a) cause all work associated with the exercise of the easement to be
performed with the least possible interference practicable to the use and enjoyment of the
property burdened by that easement; and (b) upon completion of all work associated with
that easement, cause the property burdened by that easement to be restored, to the extent
reasonably possible, to its condition prior to the commencement of the work. No above-
ground sewers, electrical lines, water lines or other utilities may be installed or relocated
on the Covered Property. The easements provided for in this Section 2.02(b) shall in no
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way adversely affect any other recorded easement on the Covered Property, nor shall they
be exercised in any manner which materially restricts or interferes with the use and
development of a Lot.
Section 2.03 Signage Easements. Declarant hereby reserves for itself and the
Association non-exclusive easements to enter upon the Lots to construct and operate a
monument sign ("Signage Easements") in the locations depicted on Exhibit C together
with the right to enter the Lots upon which the Signage Easements are located in order to
inspect, maintain and repair the same, including without limitation any electric utilities
serving the same. All signage on or within the Covered Property shall comply with the
codes and standards of the City. No improvements shall be located within the Signage
Easements without the approval of the Board.
Section 2.04 Open Yard Area. Because both the King County and the City of
Renton by way of enforcement of the Uniform Building Code require that there be a sixty
foot (60') no build restriction around all buildings ("Open Yard Area"), the Lots shall be
held, conveyed and developed subject to an Open Yard Area, which restriction is hereby
declared to be for the benefit of the Declarant and/or the Owner of each Lot. No building
shall be constructed within the Open Yard Area on any Lot. Notwithstanding, construction
of other improvements such as but without limitation driveways,curbs, g utters, parking
areas, landscaping, surface level roadways, fences and walls, utilities, retention walls, exit
stairs, trash enclosures, truck ramps and similar uses are permitted. Nothing set forth
herein shall prohibit unrestricted access and use of the Open Yard Area by its Owner, nor
prohibit the repair or maintenance of any improvements within the Open Yard Area. Upon
completion of construction of each building, an Open Yard Agreement, which Declarant
shall reasonably administer within its sole discretion, may be recorded against each Lot for
the purpose of satisfying the Uniform Building Code requirement.
Section 2.05 Dominant and Servient Estates. Each easement granted or
reserved pursuant to the provisions hereof is expressly for the benefit of each Lot and the
Lot so benefited shall be the dominant tenement and the Lot upon which each such
easement is located shall be the servient tenement and each such easement shall run with
the land and shall inure to the benefit of and shall bind the successors and assigns of the
Declarant.
Section 2.06 Right of Entry. The Association and Declarant shall have the right,
but not the obligation, to enter upon any Lot for emergency, security, and safety reasons,
and to inspect for the purpose of investigating compliance with the Governing Documents.
This right may be exercised by any member of the Board; by any officer, manager, agent
or employee of the Association acting with the permission of the Board; by Declarant, any
officer, agent, or employee of Declarant acting with Declarant's permission; and by all
police, fire and similar emergency personnel in the performance of their duties. This right
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of entry shall include the right of the Association or Declarant to enter upon a Lot to
perform maintenance or cure any condition which may increase the possibility of a fire or
other hazard, in the event that the Owner fails or refuses to perform such maintenance or
cure such condition within a reasonable time after request by the Board or Declarant.
Except in an emergency situation to avoid an imminent threat- of personal injury or
property damage, entry into any portion of a Lot not part of the Common Area shall only
be authorized during reasonable hours and after receipt of the Owner's or occupant's
consent or after reasonable prior notice to Owner or occupant.
ARTICLE 3
ASSOCIATION MEMBERSHIP AND VOTING
Section 3.01 Function of Association. The Association shall be the entity
responsible for m anagement and m aintenance o f t he C ommon Area within the C overed
Property. The Association shall be the primary entity responsible for enforcement of this
Declaration. The Association shall perform its functions in accordance with the Governing
Documents and Washington laws. The Association may also establish and operate such
programs as may be determined to advance the common interests of the Members such as
joint marketing efforts, community events, recycling programs or similar activities.
Section 3.02 Membership. Every Owner shall be a Member of the Association.
There shall be only one membership per Lot. If a Lot is owned by more than one Person,
all co-Owners shall share the privileges of such membership, subject to Board regulation
and the restrictions on voting set forth in Section 3.03 and in the Bylaws, and all
co-Owners shall be jointly and severally obligated to perform the responsibilities of
Owners. The membership rights and privileges may be exercised by the Owner, if a
natural person or, in the case of an Owner which is a corporation, partnership, limited
liability company or other legal entity,by any officer, director,partner, member,or trustee,
or by any other individual designated by the Owner from time to time in a written
instrument provided to the Secretary of the Association.
Section 3.03 Voting. Each Member shall be entitled to the number of votes
assigned to its Lot in accordance with the following provisions:
(a) Determination of Equivalent Units. Assessment obligations and
voting rights under the Declaration shall be based upon the number of"Equivalent Units"
assigned to a particular Lot relative to all other Lots subject to a particular assessment or
entitled to vote on a particular matter. The number of Equivalent Units assigned to each
Lot shall be determined as follows: Each Lot is assigned one Equivalent Unit for each
1,000 square feet of land within the Lot. A percentage of an Equivalent Unit, rounded to
one-tenth, shall be assigned for any such area less than 1,000 square feet.
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(b) Calculation of Assessment. The percentage of a particular
assessment to be levied on each Lot (unless otherwise provided in the Declaration) shall be
computed by multiplying the total amount to be assessed by a percentage (rounded to one-
tenth) calculated by dividing the Equivalent Units assigned to such Lot as provided above
by the sum of the total Equivalent Units assigned to all Lots subject to the particular
assessment.
(c) Calculation of Voting Rights. The percentage of the total voting
power allocated to each Lot (rounded to one-tenth) shall be computed by dividing the
Equivalent Units assigned to such Lot by the total Equivalent Units assigned to all Lots
eligible to vote.
(d) Computation by Board. The number of Equivalent Units and
resulting percentages for allocation of assessments and voting rights shall be computed
annually by the Board of Directors as of a date which is not less than 60 days prior to the
beginning of each fiscal year. Notice of the percentages for each Lot shall be sent to each
Owner together with the annual notice of assessments.
(e) Multiple Owners. If there is more than one Owner of any Lot, the
votes for such Lot shall be exercised as such co-Owners determine among themselves and
advise the Secretary of the Association in writing prior to the vote being taken. I n the
absence of such advice, the vote for such Lot shall be suspended if more than one
co-Owner seeks to exercise it. Any Owner may assign the right to cast the votes allocated
to its Lot to the lessee of such Lot by written proxy filed with the Secretary of the
Association in accordance with the Bylaws.
ARTICLE 4
RIGHTS AND OBLIGATIONS OF THE ASSOCIATION
Section 4.01 Common Area. The Association, subject to the rights of the
Owners set forth in this Declaration, shall maintain the Common Area and all
improvements thereon (including, without limitation, landscaping, furnishings, equipment
and other personal property of the Association—but not the individual personal property of
Owners—used in connection with the Common Area). Following construction of
improvements to each Lot by the Owners thereof, the Association shall keep the Common
Area in good, clean, attractive, and sanitary condition, order, and repair, consistent with
this Declaration the applicable zoning requirements. The Board is specifically authorized,
but not obligated, to retain or employ professional management to assist in carrying out the
Association's responsibilities under this Declaration and the Bylaws, the cost of which
shall be a Common Expense. Following the initial construction of Common Area
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improvements, the Association shall have the right to reconstruct or replace any such
improvements as and when determined by the Board.
Section 4.02 Enforcement. The Association may enforce, and may impose
sanctions for violations of, the Governing Documents in accordance with procedures set
forth herein and in the Bylaws, including monetary fines and suspension of the right to
vote. In addition, in accordance with the Bylaws,the Association may exercise self-help to
cure violations and may suspend any services it provides to the Lot of any Owner who is
more than 30 days delinquent in paying any assessment or other charge due to the
Association. All remedies set forth in this Declaration and the Bylaws shall be cumulative
of any remedies available at law or in equity. In any action to enforce the provisions of
this Declaration or Association rules, the prevailing party shall be entitled to recover all
costs, including, without limitation, attorneys' fees, reasonably incurred in such action. So
long as Declarant owns any portion of the Covered Property, Declarant may enforce the
Governing Documents. The Association shall not be obligated to take action to enforce
any covenant, restriction or rule which the Board reasonably determines is, or is likely to
be construed as, inconsistent with applicable law, or in any case in which the Board
reasonably determines that the Association's position is not strong enough to justify taking
enforcement action. Any such determination shall not be construed as a waiver of the right
to enforce such provision under other circumstances or estop the Association from
enforcing any other covenant,restriction or rule.
Section 4.03 Board of Authority. The Association may exercise any right or
privilege given to it expressly by this Declaration or the Bylaws, and any right which is
necessary to effectuate any express right or privilege. Except as otherwise specifically
provided in the Governing Documents or by law, all rights and powers of the Association
may be exercised by the Board without a vote of the membership.
Section 4.04 Indemnification. The Association shall indemnify every officer,
director and committee member, against all damages and expenses, including attorneys'
fees, reasonably incurred in connection with any action, suit, or other proceeding
(including settlement of any suit or proceeding, if approved by the then Board) to which
such person may be a party by reason of being or having been an officer, director, or
committee member, except that such obligation to indemnify shall be limited to those
actions as to which liability is limited under this Section and Washington law. The
officers, directors, and committee members shall not be liable for any mistake of judgment,
negligence or otherwise, except for their own individual willful misfeasance, malfeasance,
misconduct, or bad faith. The officers, directors, and committee members shall have no
personal liability with respect to any contract or other commitment made or action taken,
in good faith, on behalf of the Association; provided, however, that the foregoing shall not
relieve a Member from any contractual liability to the Association merely as a result of
such Member's status as an officer, director or committee member of the Association. The
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Association s hall i ndemnify and forever h old each such o fficer,director and c ommittee
member harmless from any and all liability to others on account of any such contract,
commitment or action. This right to indemnification shall not be exclusive of any other
rights to which any present or former officer, director, or committee member may be
entitled. The Association shall, as a Common Expense, maintain adequate general liability.
and officers' and directors' liability insurance to fund this obligation, if such insurance is
reasonably available.
ARTICLE 5
DEVELOPMENT PERIOD; MANAGEMENT RIGHTS
OF DECLARANT DURING DEVELOPMENT
Section 5.01 Management by Declarant. "Development Period"shall mean that
period from the date this Declaration is recorded in the Records of King County,
Washington, until the earlier of(the "Transition Date"): (a) a date five (5) years from the
date of such recording; and (b)the date Declarant no longer owns any interest in or to the
Covered Property; and (c) the date on which Declarant elects to permanently relinquish all
of Declarant's authority under this Article 5 by written notice to all Owners. Until
termination of the Development Period, either upon the sale of the required number of
Lots, the expiration of five years, or at the election of the Declarant, the Covered Property
shall be managed and the Association organized at the sole discretion of the Declarant.
Section 5.02 Notice to Owners. Not less than 10 nor more than 30 days prior to
the termination of the Development Period, the Declarant shall send written notice of the
termination of the Development Period to the Owner of each Lot. Said notice shall specify
the date when the Development Period will terminate and shall further notify the Owners
of the date, place and time when a meeting of the Association will be held. The notice
shall specify that the purpose of the Association meeting is to elect new officers and
directors of the Association, and to approve or establish Articles or Bylaws.
Notwithstanding any provision of the Articles or Bylaws of the Association to the contrary,
for the purpose of this meeting, the presence, either in person or by proxy, of the Owners
of five (5) Lots shall constitute a quorum. The Board and the officers of the Association
may be elected by a majority vote of said quorum. If a quorum shall not be present, the
Development Period shall nevertheless terminate on that date specified in said notice and it
shall thereafter be the responsibility of the Lot Owners to provide for the operation of the
Association.
Section 5.03 Temporary Board. Declarant may, in its sole discretion, and at
such times as the Declarant deems appropriate, appoint three persons who may be Lot
Owners, or are representatives of corporate entities or other entities which are Lot Owners,
as a Temporary Board. This Temporary Board shall have full authority and all rights,
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responsibilities, privileges and duties to manage the Covered Properties under this
Declaration and shall be subject to all provisions of this Declaration, the Articles and the
Bylaws, provided that after selecting a Temporary Board, the Declarant, in the exercise of
his sole discretion, may at any time terminate the Temporary Board and reassume its
management authority under this Article or select a new Temporary Board under this
Section 5.03.
Section 5.04 Management of Plat During Development Period. So long as no
Temporary Board is managing the Covered Properties or until such time as the first
permanent Board is elected, should Declarant choose not to appoint a Temporary Board,
Declarant or a managing agent selected by the Declarant shall have the power and
authority to exercise all the rights, duties and functions of the Board and the Association
and generally exercise all powers necessary to carry out the provisions of this Declaration,
including but not limited to enacting reasonable administrative rules, contracting for
required services, obtaining property and liability insurance, and collecting and expending
all assessments and Association funds. Any such managing agent or the Declarant shall
have the exclusive right to contract for all goods and services, payment for which is to be
made from any monies collected from assessments.
Section 5.05 Purpose of Development Period. These requirements and
covenants are made to ensure that the Covered Properties will be adequately administered
in the initial stages of development and to ensure an orderly transition to Association
operations upon the Transition Date. Acceptance of an interest in a Lot evidences
acceptance of this management authority in Declarant.
Section 5.06 Expenditures During Development Period. During the
Development Period, Declarant or any successor of Declarant, shall have the sole
discretion to use and consume all or so much of the dues paid in as in Declarant's
judgment is necessary or expedient in maintaining the Common Areas and carrying out the
other functions of the Association. Maintenance of Common Areas include, but are not
limited to, (1) replacement of all dead or missing flowers, annual c olor change, shrubs,
trees or grass; (2) irrigation costs and repairs; and (3) costs of any vandalism. Other
functions include any legal fees associated with Declarant, or any successor of Declarant,
carrying out any duties arising from the management of the Common Area during the
Development Period, including all costs associated with turning management over to the
Association after the expiration of the Development Period. Upon termination of the
Development Period, Declarant shall deliver any funds remaining to the Association.
However, if, during the Development Period, the expenses have exceeded the receipts,
Declarant shall have no claim against the Association. Declarant, or any successor of
Declarant, shall not be liable to the Association for monetary damages for conduct as the
Declarant and shall be held harmless from any and all legal actions brought by the
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Association for the administration of the Association prior to expiration of the
Development Period.
ARTICLE 6
DESIGN APPROVAL AND CONSTRUCTION
Section 6.01 Approvals Required. So long as Declarant retains an interest in or
to the Covered Property: (i) no erection or construction of buildings or structures, or
installation of landscaping, or grading or other improvements, including free standing and
other signs, that has not first received the written approval of Declarant or which does not
comply with plans and specifications approved by Declarant shall be made or constructed
in, about or on the Covered Property; (ii) all buildings, structures, landscaping and
improvements, including free standing and other signs, on the Covered Property shall be
designed, constructed and installed in compliance with a site plan approved by Declarant.
Declarant shall not unreasonably withhold its approval of any such plans and specifications
so long as the site plan, plans and specifications and items described therein are in
harmony and conformity with other existing or proposed improvements o n the Covered
Property and with Declarant's circulation, general aesthetic, architectural plans, and
criteria for the Covered Property. No language in this Declaration or in this Section 6.01
shall relieve Declarant, Owners, and their successors, and assigns from the duty to comply
with all applicable State, Federal, and local laws and regulations including, without
limitation,the City's municipal code, all land use ordinances,restrictions and resolutions.
Section 6.02 Time for Approvals. Declarant shall approve or disapprove any
plans and specifications delivered to Declarant pursuant to this Section 6.02 within thirty
(30) calendar.days after receipt of two (2) copies thereof. If approved by Declarant, such
approval shall be endorsed on such plans and specifications and one set of such documents
bearing Declarant's approval shall be returned to Owner within such thirty (30) calendar
day period. If Declarant does not approve such plans and specifications, Declarant shall,
within said thirty (30) calendar day period, notify the Owner in writing of its reasons for
not approving such plans and specifications and such Owner shall, within thirty (30)
calendar days after receiving written notice of Declarant's disapproval, submit new plans
and specifications for Declarant's approval. Failure of Declarant to approve or disapprove
any plans and specifications within said thirty (30) day period and Declarant's continued
failure to approve or disapprove for ten (10) calendar days after Owner's written notice to
Declarant that Declarant has failed to approve or disapprove as required herein (which
notice shall also state that failure to respond within ten (10) calendar days of this notice
shall be deemed approval of the items submitted) shall be deemed approval thereof. The
approval by Declarant of any plans and/or specifications pursuant to this Section shall be
approval only as to their conformity with Declarant's design requirements and general
aesthetic and architectural plan(s) for the area. Such approval shall not be deemed
".3
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•
approval for architectural or engineering design nor a representation or warranty by
Declarant as to the adequacy or sufficiency of such plans and specifications or the grading,
landscaping, improvements or construction contemplated thereby for any use or purpose.
By approving such plans and specifications, Declarant assumes no liability or
responsibility therefor or for any defect in any grading, landscaping, improvements or
construction made pursuant thereto.
Section 6.03 As Built Plans. So long as Declarant retains an interest in or to the
Covered Property, upon completion of the grading, landscaping and/or construction of
improvements, an Owner shall submit to Declarant two "as built" sepias and a certificate
of compliance executed by such Owner's Washington state-licensed engineer, architect
and/or landscape architect. The certificate of compliance shall warrant that the completed
grading, landscaping and/or construction conforms to the plans and specifications therefor
approved by Declarant.
Section 6.04 Construction. Use and enjoyment by the Owner of any Lot of the
easement rights herein granted shall be subject to the following terms, covenants and
restrictions.
(a) The Owner of each Lot on which construction takes place (each, a
"Constructing Owner") shall pay all reasonable costs and expenses incurred by any other
Lot Owner due to damage to the Covered Property arising from or related to such
Constructing Owner's construction operations at such Constructing Owner's Lot. No
Constructing Owner shall materially obstruct the free flow of pedestrian or vehicular traffic
upon and across the Covered Property during any period of construction on its Lot or at
any time thereafter. During such period of construction, such Constructing Owner may use
the access and perimeter driveways of the Covered Property for construction vehicle access
to, from and between such Constructing Owner's Lot and Oakesdale Avenue or South 34th
Street. During such period of construction, Constructing Owner shall cause the interior
driveways of the Covered Property to be maintained free of all materials and supplies
arising out of or resulting from such Constructing Owner's construction and otherwise in a
neat and orderly condition undisturbed from Constructing Owner's construction operations.
Any vehicle or equipment used in such construction or any materials used in such
construction shall be parked or stored only in an area approved in writing by Declarant or,
after the Transition Date, the Association. Each Constructing Owner agrees to defend,
indemnify and hold harmless Declarant, the Association, and each other Lot Owner and its
Permittees from and against any and all loss, cost, damage, liability, claim or expense
(including, without limitation, reasonable attorneys' fees) arising from or relating to such
Constructing Owner's construction operations. All construction operations at a
Constructing Owner's Lot s hall b e p erformed i n a 1 ien-free and good and w orkmanlike
manner, in accordance with all applicable laws, rules, regulations and requirements. No
Constructing Owner shall permit or suffer any mechanic's liens claims to be filed or
//.3
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otherwise asserted against the Covered Property outside its Lot in connection with such
Constructing Owner's construction operations, and shall promptly discharge the same in
case of the filing of any claims for liens or proceedings for the enforcement thereof; but in
the event the Constructing Owner in good faith desires to contest the validity or amount of
any mechanic's lien, it shall have the right to contest the validity or amount of any such
mechanic's lien, provided that (i) such Constructing Owner deposits with the Owner of the
Lot affected by such mechanic's lien cash or a letter of credit or other security reasonably
acceptable to such affected Lot Owner in an amount equal to one hundred fifty percent
(150%) of the amount of said lien to insure payment and prevent any sale or forfeiture of
any part of the affected Lot by reason of nonpayment; (ii) neither the affected Lot nor any
part thereof or interest therein would be in any substantial danger of being sold, forfeited or
lost, (iii) such affected Lot Owner would not be in any substantial danger of any civil or
criminal liability for failure to comply therewith; and (iv) such Constructing Owner
promptly notifies such affected Lot Owner, in writing, of such contest. Any such contest
shall be prosecuted with due diligence and the Constructing Owner shall promptly after the
final determination thereof pay the amount of any such lien, together with all interest,
penalties and other costs payable in connection therewith. Any letter of credit deposited
hereunder shall be issued by a national bank reasonably acceptable to the affected Lot
Owner. Each Constructing Owner and its tenants and their respective contractors and
subcontractors shall be solely responsible for the transportation, safekeeping and storage of
materials and equipment used in connection with such ConstructingOwner's construction
operations, and for the removal of waste and debris resulting therefrom. In the event any
Constructing Owner's construction operations detrimentally affect the condition of any
portion of the Covered Property, such Constructing Owner shall restore the Covered
Property, or part thereof, to its condition existing prior to commencement of such
Constructing Owner's construction operations, including without limitation, any filling and
compacting of all excavations, repaving of paved areas and replacement of landscaping.
No such construction operations shall result in a labor dispute or encourage labor
disharmony. P rior t o c ommencement o f c onstruction o perations, a C onstructing Owner
shall, at its sole cost and expense, obtain and maintain, or cause its general contractor to
obtain and maintain, during the performance of the Constructing Owner's construction
operations, workers' compensation insurance covering all persons directly employed by
the Constructing Owner or its general contractor in connection with its construction
operations and with respect to which death or injury claims could be asserted against
Declarant, the Association, such Constructing Owner, the Covered Property or any interest
therein, as required by applicable laws and regulations, together with commercial general
liability insurance for the mutual benefit of Declarant and such Constructing Owner with
limits not less than the amounts set forth in Section 7.03(d) hereof, and all risk builder's
risk insurance for full insurable value covering any improvements constructed. All such
insurance shall be written by solvent insurance companies licensed in the State of
Washington and all such policies of insurance or binders of insurance shall be delivered to
/!.3
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•
the Association prior to commencement of such Constructing Owner's construction
operations.
Section 6.05 Damage and Destruction. In the event of any damage or
destruction to a building constructed on a Lot, the Lot Owner shall promptly remove all
rubble and debris resulting from such damage or destruction and shall commence
restoration within six (6) months of such damage or destruction and shall complete
restoration of such damage or destruction within twelve (12) months after the date thereof,
or shall forthwith remove all rubble and debris resulting from such damage or destruction
and restore the site to a safe, orderly and clean condition as soon as possible and maintain
landscaping as required by the City, provided that the time periods described herein shall
be deferred for a period, not to exceed an aggregate of three hundred sixty-five (365) days,
equal to any delay caused by reason of strikes, lockouts, labor disputes, inability to obtain
labor, materials or reasonable substitutes therefor, acts of God, governmental restrictions,
regulations or controls, enemy or hostile governmental action, civil commotion,
insurrection, revolution, sabotage, fire or other casualty, acts or governmental agencies, or
other causes (other than lack of funds) beyond the reasonable control of any such Lot
Owner.
ARTICLE 7
MAINTENANCE OBLIGATIONS; INSURANCE AND INDEMNITY
Section 7.01 Owner's Responsibility for Improvements and Wall
Maintenance. Declarant hereby covenants and agrees for itself, each Owner and their
respective Permittees and successors and assigns, that each Owner of a Lot shall, at its sole
cost and expense, maintain any buildings, structures, trash enclosures or designated areas,
or improvements located on a Lot and that portion of any perimeter concrete block wall
located on each Lot in a manner consistent with a first class commercial industrial park and
in accordance with all applicable State, Federal, and local laws including, without
limitation, the City's municipal code, all land use ordinances, restrictions, and resolutions.
Except for Common Areas maintained by the Association, each Owner shall keep all
buildings, structures, and improvements located on that Owner's Lot, free and clear of all
weeds, debris and rubbish, painted in a color complementary to the color originally
approved by Declarant or complimentary to the buildings located on the remainder of the
Covered Property and free and clear of graffiti. Any dumpster serving any Lot shall be
screened (other than dumpsters used during temporary construction operations) in a
manner reasonably satisfactory to Declarant and consistent with the architectural and
aesthetic character of the balance of the Covered Property. Each Lot Owner shall maintain
the exterior of all buildings located on its Lot in good condition and state of repair,
including without limitation, maintaining all perimeter and building walls and retaining
walls, keeping the exterior surface clean, replacing any cracked or broken glass.
//.3
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Section 7.02 Association's Responsibility. The Association shall provide
routine maintenance and repair of the Common Area, following initial construction,
including required capital repairs or replacements, unless the Board determines that such
repair or replacement results solely from the intentional act or negligence of an Owner, in
which case the cost of such repair or replacement may be subject to Specific Assessment to
such Owner, pursuant to Section 8.05. Additional examples of the Association's
responsibilities with regard to the Common Area are to:
(1) Maintain the surface of all pedestrian areas, parking areas
and areas of ingress and egress for vehicles, level, smooth and evenly
covered with the type of surfacing material originally installed thereon or
such substitute thereof as shall be in all respects equally comparable thereto
or better in quality, appearance and durability;
(2) Maintain appropriate entrance, exit and directional signs,
markers and lights as shall be reasonably required for the use of each such
area;
(3) Repaint striping, markers, directional signs, etc., as
necessary to maintain in first class conditions;
(4) Maintain the roadways, driveways, aisles, curb cuts, parking
areas, sidewalks and other improvements so a s to provide safe functional
use of such areas at all times;
(5) Plant, maintain, irrigate, repair and replace landscape areas
and planters;
(6) Remove litter, subject to the Association's levy of Specific
Assessments against any Lot that disproportionately contributes to litter in
the Common Area in the Board's reasonable determination;
(7) Purchase, install, maintain, repair and replace Common Area
furniture such as benches;
(8) Maintain,repair and replace Common Area lighting;
(9) Maintain, repair and replace, as necessary, the drainage
system and the Common Storm Water Facilities, located on or in the
Common Area, in a first-class condition and in compliance with the City's
Municipal C ode, s o as t o provide u ninterrupted and/or u ninhibited S torm
Water drainage for each of the Lots including without limitation keeping the
area free and clear of any and all weeds, rubbish, and/or debris or other
//.3
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obstructions which would impede the natural flow of water to the public
drainage system
(10) Except to the extent maintained by City, maintain Tract B
and the Detention Pond System at all times in good, safe, neat and orderly
condition, and in compliance with all applicable laws and regulations,
including maintenance, repair and replacement of such system in any fence
on the Lot;
(11) Maintain the wetlands areas, including trees and landscaping,
on Tract A, including any repair or replacement, as necessary, in accordance
with applicable law; and
(12) Maintain all Project Signage and Owner Signage in good
condition and repair, including replacement as necessary.
The Association may maintain other property which it does not own, including, without
limitation, publicly owned property and other property dedicated to public use, if the Board
determines that such maintenance is necessary or desirable and constitutes a Common
Expense.
Except as otherwise specifically provided herein, all costs associated with
maintenance, repair, reconstruction and replacement of the Common Area shall be a
Common Expense to be allocated among all Lots as part of the Base Assessment, without
prejudice to the right of the Association to seek reimbursement from the Owner(s) of, or
other Persons responsible for sharing in the costs of, certain portions of the Common Area
pursuant to this Declaration, other recorded covenants, or agreements with the Owner(s)
thereof.
Section 7.03 Insurance.
(a) Association Insurance. The Association, acting through the Board
or its duly authorized agent, shall obtain and continue in effect, (i)if reasonably available
and to the extent the Board deems reasonably necessary,blanket property insurance on real
or personal property within the Common Area for which the Association has maintenance
and repair responsibilities; (ii) commercial general liability insurance on the Common Area
and any portion of the Covered Property owned by the Association; (iii) directors and
officers liability coverage; (iv) fidelity insurance; and (v) such additional insurance as the
Board, in its business judgment, determines advisable or is required by law. The Board
shall review annually and shall have an experienced insurance professional review the
types and amounts of insurance coverage and shall establish the requirements for such
coverages. Insurance premiums shall be a Common Expense. In the event of an insured
loss, the deductible, in such amount as established by the Board, shall be treated as a
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Common Expense. However, if the Board reasonably determines, after notice and an
opportunity to be heard in accordance with the Bylaws, that the loss is the result of the
negligence or willful misconduct of one or more Owners and/or their Permittees, then the
Board may specifically assess the full amount of such deductible against such Owner(s)
and their Lots as a Specific Assessment. Association insurance shall not be brought into
contribution with insurance purchased by Owners, occupants, or their Mortgagees
individually. In addition, the Board shall use reasonable efforts to secure insurance
policies which list the Owners as additional insureds and provide waivers, endorsements,
and other provisions to the extent the Board deems reasonably necessary. In the event of a
loss covered by Association insurance, the Board or its duly authorized agent shall file and
adjust all insurance claims. Decisions regarding the repair or reconstruction of any insured
damage shall be made by the Board in its reasonable discretion. If insurance proceeds are
insufficient to cover the costs of repair or reconstruction, the Board of Directors may,
without a vote of the Members, levy Special Assessments or Specific Assessments to cover
the shortfall against those Owners responsible for the premiums.
(b) Owner Insurance. Declarant hereby covenants and agrees upon
behalf of itself, each Owner, and their successors and assigns to maintain, at their sole cost
and expense, a policy (the "Policy") of commercial general liability insurance insuring the
other Owners against liability for bodily injury, death, property damage, and personal
injury arising out of the maintenance, repair, and/or use of the easements granted herein or
the exercise of the rights granted herein. Each Policy: shall (i) name the other Owners as
additional insureds; (ii) be in an initial amount of One Million Dollars ($1,000,000.00)per
occurrence, Two Million Dollars ($2,000,000.00) in aggregate and Five Million Dollars
($5,000,000.00) in excess liability; (iii) be subject to periodic increase, as determined by
the Board, based upon inflation, increased liability awards and reasonable requests by the
other Owners; (iv) be in a form reasonably satisfactory to the Association and be carried
with a company that has a general policyholder's rating of not less than"A"and a financial
rating of not less than Class "VIII" in the most current edition of Best's Insurance Reports;
(v) provide that the Policy shall not be modified, altered, changed or cancelled except after
at least thirty (30) calendar days' prior written notice to the Association, and (vi) be
primary, and any insurance carried by the other Owners or the Association and shall be
non-contributing. A duly executed certified insurance c ertificate for the P olicy shall be
delivered to the Association and to other Owners upon request for the same and
immediately after any renewal of the Policy. If any Owner fails to procure and maintain
the Policy, the Association may, but shall not be required to, order the Policy at the
defaulting Owner's sole cost and expense. All sums reasonably disbursed, deposited or
incurred in connection therewith including, but not limited to, all costs and expenses and
attorneys' fees, shall be immediately due and payable upon demand to the defaulting
Owner.
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II
•
Section 7.04 Compliance. Every Owner and occupant of any Lot shall comply
with the Governing Documents and other covenants applicable to its Lot. Failure to
comply shall be grounds for an action by the Association or, in a proper case, by any
aggrieved Lot Owner(s), to recover sums due, for damages or injunctive relief, or for any
other remedy available at law or in equity, in addition to those enforcement powers granted
to the Association in this Declaration and/or in the Bylaws.
The Covered Property is subject to the Governing Documents. No structure or
thing shall be placed, erected, or installed on the Covered Property, and no improvements
or other work (including platting, staking, site planning, clearing, excavating, grading and
other site work, exterior alterations of existing improvements, or planting or removal of
landscaping) ("Work") shall take place within the Covered Property, and no use shall be
made of any portion of the Covered Property, except in compliance with the Governing
Documents.
All provisions of the Governing Documents shall apply to all Owners, occupants,
tenants, guests and invitees of any Lot. Any lease on any Lot shall provide or shall be
deemed to provide that the lessee and all occupants of the leased Lot shall be bound by the
terms of the Governing Documents.
Section 7.05 Indemnification. The Owner of each Lot agrees to defend,
indemnify and hold harmless the Association and the other Lot Owners from and against
any and all claims, actions, damages, fines, liabilities and expenses of every kind, nature
and sort whatsoever (including reasonable attorney's fees, court costs and expenses) which
may be imposed upon, incurred by or asserted against the indemnified party or its property
in connection with loss of life, personal injury and/or property damage arising from or
relating to any occurrence in, upon or at the Lot owned by the indemnifying party, or any
part thereof, or from exercise of the easement rights granted herein, except to the extent
caused by the willful or negligent acts or omissions of the indemnified party or to the
extent covered by insurance. With respect to any indemnification provided for hereunder,
the indemnifying Owner shall immediately respond and take over the expense, defense and
investigation of all such claims arising under this indemnity.
Each Lot Owner ("Releasing Owner") shall release and waive for itself, and each
person claiming by, through or under it, the Association and each other Lot Owner
("Released Owner") from any liability for any loss (including any deductible loss) or
damage to any property of such Releasing Party located upon any portion of the Covered
Property and for any business conducted upon any portion of the Covered Property,
without regard to any negligence on the part of the Released Owner which may have
contributed to or caused such loss, or of the amount of such insurance required to be
carried or actually carried; provided, however, the foregoing release shall not apply to any
loss or damage attributable to an environmental condition caused by the Released Owner.
/1.3
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Each Lot Owner agrees to use all reasonable efforts to obtain, if needed, appropriate
endorsements to its policies of insurance with respect to the foregoing release; provided,
however, that failure to obtain such endorsements shall not affect the release hereinabove
given.
Notwithstanding the foregoing, in the event of the concurrent negligence of an
indemnifying Lot Owner, its agents or employees on the one hand and the concurrent
negligence of the Association and an indemnified Lot Owner, or their respective agents or
employees on the other hand, which concurrent negligence results in injury or damage to
persons or property of any nature and howsoever caused, and relates to the construction,
alteration, repair, addition to, subtraction from, improvement to or maintenance of the
Common Area or any improvements on a Lot such that RCW 4.24.115 is applicable, then
an indemnifying Lot Owner's obligation to indemnify the Association or other Lot Owner,
as the case may be, as set forth in this Section, shall be limited to the extent of the
negligence of the indemnifying Lot Owner, its agents or employees, including its
proportional share of costs, reasonable attorneys' fees and expenses incurred in connection
with any claim, action or proceeding brought with respect to such injury or damage. Each
Lot Owner shall be deemed automatically to have specifically negotiated and to have
specifically waived, with respect to each other Lot Owner, but no other person, including
any injured employee of a Lot Owner, any provisions of any industrial insurance act,
including Title 51 of the Revised Code of Washington, or any other employee benefit act
which might otherwise operate to release or immunize an indemnifying Lot Owner from its
obligations under this paragraph.
ARTICLE 8
ASSESSMENTS
Section 8.01 Creation of Assessments. The Association is hereby authorized to
levy assessments against each Lot for Association expenses as the Board may specifically
authorize from time to time. There shall be three types of assessments: (a) Base
Assessments to fund Common Expenses for the general benefit of all Lots, allocated to the
Lots in accordance with their respective Equivalent Units; (b) Special Assessments as
described in Section 8.04, allocated to the Lots in accordance their respective Equivalent
Units; and (c) Specific Assessments as described in Section 8.05. Each Owner, by
accepting a deed or entering into a recorded contract of sale for any portion of the Covered
Property, is deemed to covenant and agree to pay these assessments.
All assessments as to any Lot, together with interest from the due date of such
assessment at a rate determined by the Board (not to exceed the highest rate allowed by
Washington law), reasonable late charges (in such amount as the Board may establish by
resolution from time to time), costs, and reasonable attorneys' fees, shall be a charge and
//.3
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continuing lien upon the Lot against which each assessment is levied until paid, as more
particularly provided in Section 8.06. Each such assessment, together with interest, late
charges, costs, and reasonable attorneys' fees, shall also be the personal obligation of the
Person who was the Owner of such Lot at the time the assessment arose.
Upon transfer of title to a Lot, the grantee shall be jointly and severally liable for
any assessments and other charges due at the time of conveyance. The Association shall
release the Lot's grantor from liability for assessments after the date of the Lot transfer, but
the grantor shall continue to be liable for all assessments occurring prior to the date of the
transfer. No first Mortgagee who obtains title to a Lot by exercising the remedies provided
in its Mortgage shall be liable for unpaid assessments which accrued prior to such
acquisition of title.
Assessments shall be paid in such manner and on such dates as the Board may
establish. If the Board so elects, assessments may be paid in two or more installments. If
any Owner is delinquent in paying any assessments or other charges levied on its Lot, the
Board may require any unpaid installments of all outstanding assessments to be paid in full
immediately.
The Association shall, upon request, furnish to any Owner liable for any type of
assessment an estoppel certificate in writing signed by an Association officer setting forth
whether such assessment has been paid. Such certificate shall be conclusive evidence of
payment. The Association may require the advance payment of a processing fee adopted
by the Board for the issuance of such certificate.
No Owner may exempt itself from liability for assessments by non-use of Common
Area, abandonment of its Lot, or any other means. The obligation to pay assessments is a
separate and independent covenant on the part of each Owner. No diminution or
abatement of assessments or setoff shall be claimed or allowed for any alleged failure of
the Association or Board to take some action or perform some function required of it, or
for inconvenience arising from the making of repairs or improvements, or from any other
action it takes.
Section 8.02 Computation of Base Assessment. At least 60 days before the
beginning of each calendar year, the Board shall prepare a budget covering the estimated
Common Expenses for the coming year, which may include a capital contribution to a
reserve fund in accordance with a budget separately prepared as provided in Section 8.03.
In determining the total funds to be generated through Base Assessments, the Board, in its
discretion, may consider other sources of funds available to the Association, including any
surplus from prior years. The total budget shall be allocated among all Lots subject to
assessment in accordance with their respective Equivalent Units.
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The Board shall send a copy of the budget and notice of the amount of the Base
Assessment for the following year to each Owner at least 45 days prior to the effective date
of such budget. Such budget and assessment shall become effective unless disapproved at
a meeting by a vote of Owners representing at least a majority of the total votes in the
Association. There shall be no obligation to call a meeting for the purpose of considering a
budget except on petition of the Owners as provided for special meetings in the Bylaws,
which petition must be presented to the Board within 10 days after delivery of the budget
and notice of assessments.
The Board may revise the budget and any assessment from time to time during the
year, subject to the notice requirements and the right of the Members to disapprove the
revised budget as set forth above.
If any proposed budget is disapproved or the Board fails for any reason to
determine the budget for any year, then until such time as a budget is determined, the
budget most recently in effect for the immediately preceding year shall continue for the
current year.
Section 8.03 Reserve Budget and Capital Contribution. The Board annually
may prepare reserve budgets for general purposes. The Board may set the required capital
contribution in an amount sufficient to permit meeting the projected capital needs of the
Association, as shown on the reserve budget, with respect both to amount and timing, by
annual Base Assessments, over the budget period.
Section 8.04 Special Assessments. In addition to other authorized assessments,
the Association may levy Special Assessments from time to time to cover unbudgeted,
extraordinary or other expenses which the Board determines to be more appropriately
handled outside of the annual operating budget. Any such Special Assessment shall be
levied against all Lots, in accordance with their respective Equivalent Units, if such
Special Assessment is for general Common Expenses. Special Assessments shall be
payable in such manner and at such times as determined by the Board, and may be payable
in installments extending beyond the year in which the Special Assessment is approved.
Any Special Assessment adopted by the Board shall become effective 30 days after
notice of such Special Assessment is sent to the Owners unless disapproved at a meeting
by Owners representing at least a majority of the total votes in the Association and Owners
of at least 60% of the Lots; provided, there shall be no obligation to call a meeting for the
purpose of considering the Special Assessment except on petition of Owners representing
at least 60% of the total votes in the Association, which petition must be submitted to the
Board within 10 days after the date of such notice. In the event of any such petition, the
Special Assessment shall not become effective unless and until the meeting is held and the
requisite vote to disapprove is not obtained.
//.3
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•
Section 8.05 Specific Assessments. The Board shall have the power to levy
Specific Assessments against a particular Lot or Lots constituting less than all Lots within
the Covered Property as follows:
(a) to cover the costs, including overhead and administrative costs, of
providing benefits, items, or services to such Lot or occupants thereof upon request of such
Lot's Owner pursuant to a menu of special services which the Board may from time to
time authorize to be offered to Owners, which assessments may be levied in advance of the
provision of the requested benefit, item or service as a deposit against charges to be
incurred by or on behalf of the Owner;
(b) to cover the costs of providing garbage disposal or other similar
services to some, but not all, of the Lots, the costs of which shall be allocated among the
benefited Lots in accordance with this usage as reasonably determined by the Board;
(c) to cover the costs the Association incurs, for the benefit of an Owner
or occupant of a Lot, but not for the benefit of the Owners or occupants of all Lots, which
costs the Association shall allocate among all benefited Lots in accordance with their
respective Equivalent Units; and
(d) to cover costs incurred in bringing the Lot into compliance with the
terms of the Governing Documents or costs incurred as a consequence of the conduct of
the Owner or occupants of the Lot, their licensees, invitees, or guests; provided, the Board
shall give the Lot Owner prior written notice and an opportunity for a hearing, in
accordance with the Bylaws,before levying a Specific Assessment under this Section 8.05.
Section 8.06 Date of Commencement of Assessments. The obligation t o p ay
assessments shall commence as to each Lot on the first day of the calendar month
following (a)the month in which such Lot is conveyed by Declarant to a third-party
Owner, or (b) the month in which the Board first determines and levies assessments
pursuant to this Article, whichever is later. The first annual Base Assessment levied on
each Lot shall be adjusted according to the number of months remaining in the year at the
time assessments commence on the Lot.
Section 8.07 Lien for Assessments. All assessments authorized in this Article
shall constitute a lien in favor of the Association against the Lot upon which they are
levied until paid. The lien shall also secure payment of interest, late charges, and costs of
collection (including attorneys' fees). The Association shall have the right to record a
notice of lien in the public records giving notice of delinquent assessments of any Owner.
Such lien shall be superior to all other liens, except (a) the liens of all taxes, bonds,
assessments, and other levies which by law would be superior, and (b)the lien or charge of
any first Mortgage of record (meaning any recorded Mortgage with first priority over other
Mortgages) made in good faith and for value. Such lien, when delinquent, may be
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enforced by suit, judgment, and foreclosure in the same manner as mortgages on real
property are foreclosed under Washington law.
The Association maybid for the Lot at the foreclosure sale and mayuse as a credit
u
toward its bid the amount of the delinquent assessment and other charges authorized
hereunder and acquire, hold, lease, mortgage, and convey the Lot. While a Lot is owned
by the Association following foreclosure: (a)no right to vote shall be exercised on its
behalf; (b)no assessment shall be levied on it; and (c) each other Lot shall be charged, in
addition to its usual assessment, its pro rata share of the assessment that would have been
charged such Lot had it not been acquired by the Association. The Association may sue
for unpaid assessments and costs without foreclosing or waiving the lien securing the
same.
The sale or transfer of any Lot shall not affect the assessment lien or relieve such
Lot from the lien for any subsequent assessments. However, the sale or transfer of any Lot
pursuant to foreclosure of any first Mortgage shall extinguish the lien as to any
installments of such assessments due prior to such sale or transfer. A Mortgagee or other
purchaser of a Lot who obtains title pursuant to foreclosure of any Mortgage shall not be
personally liable for assessments on such Lot due prior to such acquisition of title. Unless
and until paid by the prior Owner, such unpaid assessments shall be deemed to be
Common Expenses collectable from Owners of all Lots subject to assessment, including
such acquirer, its successors and assigns.
Section 8.08 Failure to Assess. Failure of the Board to fix the amount of any
assessment or to deliver or mail to each Owner an assessment notice shall not be deemed a
waiver, modification, or a release of any Owner from the obligation to pay assessments. In
such event, each Owner shall continue to pay annual Base Assessments on the same basis
as due for the last year for which an assessment was determined, if any, until a new
assessment is made, at which time the Association may retroactively assess any shortfalls.
ARTICLE 9
REMEDIES
Section 9.01 Self Help.
(a) Failure to Perform. If any Owner shall default in the performance
of its obligations or payment of any cost required to be paid by an Owner hereunder
("Defaulting Party"), then the Association or any other Owners (individually or
collectively "Affected Party") shall, in addition to all other remedies it may have at law or
in equity, after fifteen (15) calendar days prior written notice (or in the event of an
emergency after such notice as is practical under the circumstances), have the right to
perform such obligation on behalf of such Defaulting Party. In such event, the Defaulting
//.3
-25-
•
Party shall be responsible and obligated to reimburse the Affected Party promptly for the
cost thereof, together with interest thereon from the date of any such certain outlay at a rate
of two percent (2%) in excess of the reference rate publicly announced from time to time
by Bank of America, its successors and assigns, including, by merger, for commercial
loans (or the maximum lawful amount, whichever is less), plus reasonable collection fees.
Any performance of an obligation of a Defaulting Party by an Affected Party pursuant to
this Article 9 shall be accomplished in such manner as to minimize interference with the
operation of any business enterprise operated on any Lot that is affected.
(b) Lien Rights. Any such claim for reimbursement, together with
interest thereon as aforesaid, shall be secured by a lien which shall attach to the Lot and the
improvements thereon owned by the Defaulting Party, which lien may be recorded,
enforced and foreclosed in the same manner as set forth in Section 8.07 for the
Association's liens.
(c) Injunction and Other Remedies. In the event of a breach or
reasonably credible threatened breach of any material obligation under this Declaration, the
Affected Party shall be entitled forthwith to obtain an injunction to specifically enforce the
performance of such obligation; due to inadequacy of legal remedies and the irreparable
harm which would be caused by any such breach, and/or to relief by other available legal
and equitable remedies from the consequences of such breach. Any action taken or
document executed in violation of this Declaration shall be void and may be set aside upon
the petition of any other Owner to a court of competent jurisdiction. All costs and
expenses of any such proceeding, including attorneys', shall be paid by the Defaulting
Party and shall constitute a lien against the land and improvements thereon, or the interests
therein, until paid in the manner provided in Section 9.01(a).
(d) Non-Waiver. No delay or omission of the Association or any
Owner in the exercise of any right accruing upon any default of any other Owner shall
impair any such right or be construed to be a waiver thereof, and every such right may be
exercised at any time during the continuance of such default. A waiver by the Association
or any Owner of a breach of, or a default in, any of the terms and conditions of this
Declaration by any other Owner shall not be construed to be a waiver of any subsequent
breach of or default in the same or any other provision of this Declaration. Except as
otherwise specifically provided in this Declaration, no remedy provided in this Declaration
shall be exclusive but each shall be cumulative with all other remedies provided in this
Declaration and all remedies at law or in equity shall be available.
//.3
-26-
ARTICLE 10
MISCELLANEOUS
Section 10.01 Amendment.
(a) By Declarant. In addition to specific rights granted elsewhere in
this Declaration, so long as Declarant owns a Lot in the Covered Property, Declarant may,
but shall not be required to, unilaterally amend this Declaration for any purpose, except
that the amendment shall not have a material adverse effect upon the rights of any Owner.
Thereafter, Declarant may unilaterally amend this Declaration at any time and from time to
time if such amendment is necessary(i)to bring any provision hereof into compliance with
any applicable governmental statute, rule or regulation or judicial determination which is
in conflict therewith; (ii)to enable any title insurance company to issue title insurance
coverage with respect to any portion of the Covered Property; or (iii)to satisfy the
requirements of any governmental agency. However, any such amendment shall not
adversely affect the title to any Lot unless the Owner shall consent thereto in writing.
(b) By Owners. Except as provided above and as otherwise specifically
provided elsewhere in this Declaration, this Declaration may be amended only by the
affirmative vote or written consent, or any combination thereof, of Owners representing at
least 51% of the total votes in the Association and the consent of Declarant, in its sole
discretion, as long as Declarant owns any property in the Covered Property. However, the
percentage of votes necessary to amend a specific clause shall not be less than the
prescribed percentage of affirmative votes required for action to be taken under that clause.
(c) Validity and Effective Date of Amendments. Amendments to this
Declaration shall become effective upon recording unless a later effective date is specified
therein. Any procedural challenge to an amendment must be made within six months of its
recordation or such amendment shall be presumed to have been validly adopted. If an
Owner consents to any amendment to this Declaration or the Bylaws, it will be
conclusively presumed that such Owner has the authority so to consent, and no contrary
provision in any Mortgage or contract between the Owner and a third party will affect the
validity of such amendment. No amendment may directly or indirectly remove,revoke,or
modify any right or privilege of,nor impose any obligation upon, Declarant without the
written consent of Declarant.
Section 10.02 Covenants to Run With the Land. Except for the easements
created pursuant hereto which are hereby declared to be perpetual, the covenants,
conditions, easements, reservations and restrictions in this Declaration shall run with and
bind the Covered Property and shall inure to the benefit of and be enforceable for a term
commencing upon the date hereof and terminating fifty (50) years from the date hereof;
//.3
-27-
provided, however, unless one (1) year prior to the expiration of said fifty (50) year term
there shall be recorded an instrument executed by all of the Owners directing the
termination of the covenants, conditions, easements, reservations and restrictions herein
contained, said covenants, conditions, easements, reservations and restrictions in effect
immediately prior to the expiration date of said fifty (50) year term shall be continued
automatically without any further written notice for an additional period of five (5) years
and thereafter for successive terms of five (5) years unless within one (1) year prior to the
expiration of any such five (5) year period the covenants, conditions, easements,
reservations and restrictions herein contained are terminated pursuant to this Section. All
easements, restrictions, conditions, covenants and agreements contained herein are made
for the direct, mutual and reciprocal benefit of each and every part and parcel of the
Covered Property; shall create reciprocal rights and obligations between the respective
Owners of all Lots and privities of contract and estate between all Owners of said Lots,
their heirs, successors and assigns; and shall, as to the Owner of each Lot, its heirs,
successors and assigns, operate as covenants running with the land for the benefit of all
other Lots.
Section 10.03 Governing Law. This Declaration shall be governed in
accordance with the internal laws of the State of Washington.
Section 10.04 Transfer of Title. Any Owner desiring to sell or otherwise
transfer title to its Lot shall give the Board prior written notice of the name and address of
the purchaser or transferee, the date of such transfer of title, and such other information as
the Board may reasonably require. The transferor shall continue to be jointly and severally
responsible with the transferee for all obligations of the Owner of the Lot, including
assessment obligations, until the date upon which such notice is received by the Board,
notwithstanding the transfer of title.
Section 10.05 Estoppel. Upon a sale or financing of any Lot and otherwise no
more than once a year, Declarant hereby covenants and agrees on behalf of itself and each
Owner, that, upon reasonable request by another Owner, an Owner and the Association
shall deliver to the requesting Owner a statement specifying, to the knowledge of the
certifying party, that (i) this Declaration is in full force and effect and a binding obligation
of the Owners, (ii) this Declaration has not been amended or modified, either orally or in
writing, and if so amended, identifying the amendments, and (iii) there is no default by any
Owner under the Declaration or, if any Owner is in default, then specifying the nature and
amount (if applicable) of any and all defaults. The Association and each requested Owner
shall execute and return such certificate within twenty (20) calendar days following its
receipt of any such request.
Section 10.06 Declarant's Rights Under Other Recorded Documents. Nothing
herein contained shall prejudice or diminish in any way Declarant's rights under any other
//.3
-28-
•
documents of record from time to time affecting all or any portion of the Covered
Property.
Section 10.07 Invalidity of Provision. If any provision of this Declaration as
applied to Declarant or any Owner or to any circumstance shall be adjudged by a court of
competent jurisdiction to be void or unenforceable for any reason, the same shall in no way
affect (to the maximum extent permissible by law) any other provision of this instrument,
the application of any such provision under circumstances different from those adjudicated
by the court, or the validity or enforceability of the instrument as a whole.
Section 10.08 Attorneys' Fees. In the event of the bringing of any action or suit
by the Declarant or Association or any Owner(s) against any other Owner(s) arising out of
this Declaration, the prevailing party or parties shall be entitled to recover from the non-
prevailing party or parties all costs and expenses of the action, including reasonable
attorneys' fees. As used in this Declaration, the term "attorneys' fees"shall mean the fees,
costs and expenses of counsel to an Owner or the Association, as the case may be, which
may include printing,photostating, duplicating and other expenses, air freight charges, and
fees billed for law clerks, paralegals and other persons not admitted to the bar but
performing services under the supervision of an attorney, and the costs and fees incurred in
connection .with the enforcement or collection of any judgment obtained in any such
proceeding, and shall include, specifically, all fees, costs and expenses of expert witnesses
and all court costs.
Section 10.09 Assignment Rights. Declarant has the absolute right to assign its
rights and obligations under this Declaration either to (a) an entity in which Declarant holds
a direct or indirect interest, or (b) any other Owner (either being hereafter referred to as a
"Permitted Transferee"). If the rights and obligations of Declarant hereunder shall be
assigned by Declarant to a Permitted Transferee, (i) Declarant shall be released from any
obligation or liability hereunder, (ii) such Permitted Transferee shall be substituted as
"Declarant" hereunder and shall be entitled to the benefit of and may enforce Declarant's
rights hereunder as if such Permitted Transferee were the original "Declarant" hereunder,
and (iii) such Permitted Transferee shall assume all obligations and liabilities of Declarant
hereunder, subject to any limitations of such liabilities and obligations hereunder or
provided by law.
Section 10.10 Cumulative Effect: Conflict. The covenants, restrictions, and
provisions of this Declaration shall be cumulative with any additional declaration or other
covenants and restrictions applicable to any Lot, and the Association may, but shall not be
required to, enforce the latter. Nothing in this Section shall preclude any amendment to
this Declaration or other covenants applicable to any portion of the Covered Property from
containing additional restrictions or provisions which are more restrictive than the
//.3
-29-
•
provisions of this Declaration, and the Association shall have the standing and authority to
enforce the same.
Section 10.11 Notices. Except as may otherwise be provided in this
Declaration, all notices, demands, bills, statements, or other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered personally or
if sent by United States mail, first class,postage prepaid:
(a) if to an Owner, at the address which the Owner has designated in
writing and filed with the Secretary of the Association or, if no such address has been
designated, at the address of the Lot of such Owner; or
(b) if to the Association, the Board, or the managing agent, at the
principal office of the Association or the managing agent or at such other address as shall
be designated by notice in writing to the Owners pursuant to this Section; or
(c) if to Declarant, at the address of Declarant's principal place of
business in Washington or at such other address as shall be designated by notice in writing
to the Owners pursuant to this Section.
All notices sent in compliance with the above shall be deemed received on the third day
after the date postmarked. Nothing in this Section shall invalidate notice given by personal
delivery(which shall include overnight delivery service or courier service) or by any other
means, if actually received by the addressee.
Section 10.12 Construction. Titles or captions of Sections contained in this
Declaration are inserted only as a matter of convenience and for reference and in no way
define, limit, extend or describe the scope of this Declaration or the intent of any provision
hereof W ords and p hrases u sed i n the singular i n t his Declaration s hall b e deemed t o
include the plural and vice versa, and pronouns used in any particular gender shall be
deemed to include any other gender. The word "including" shall mean, "including,but not
limited to."
Section 10.13 Approval Rights. Unless otherwise herein provided, whenever
approval is required, such approval shall not be unreasonably withheld or delayed. Unless
provision is made for a specific time period, approval shall be given or withheld within
thirty (30) days of the receipt of the request for approval. If a written disapproval is not
given within the required time period, the requested Owner, or the Association, as the case
may be, shall be deemed to have given its approval. If an Owner, or the Association, as
the case may be, shall disapprove, the reasons therefor shall be stated. Except with respect
to an approval given by lapse of time, all approvals and disapprovals shall be in writing.
//.3
-30-
Section 10.14 Exhibits. The following exhibits attached hereto are, by this
reference, incorporated into this Declaration, as if fully set forth:
Exhibit A - Legal Description of Covered Property
Exhibit B - Common Storm Water Facilities
Exhibit C - Location of Signage Easements
SIGNATURE ON NEXT PAGE
//3
-31-
IN WITNESS WHEREOF, Declarant has executed this Declaration on the date
first herein above written.
"Declarant"
OAKESDALE COMMERCE CENTER LLC
a Delaware limited liability company,
By: CalSmart LLC, Series B
a Delaware limited liability company
its Member and Manager
By: RREEF America L.L.C.
a Delaware limited liability company
its Authorized Agent
By: GP(
Dave ilbur,Director
".3
-32-
STATE OF CALIFORNIA )
ss.
COUNTY OF SAN FRANCISCO )
On December 23, 2004 before me, Debbie Choy Wayne, a Notary Public in and for said
state,personally appeared David M. Wilbur,personally known to me( or proved to me on the
basis of satisfactory evidence)to be the persons whose name is subscribed to the within
instrument and acknowledged to me that they executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal. `py WAYNE
COMM.#1291675
tics, . m
4A �:,•��,.sem °Notary Public-California CO
_ .1.�1 _ .,��� ,�L�� 4 w ? „cz SAN FRANCISCO COUNTY
NOTARY P : Cin an. 1r said •tat -; My Com7,E x ,Ian.21,zoos
33
•
EXHIBIT A
LEGAL DESCRIPTION OF COVERED PROPERTY
Lots 3 and 4 in Block 7 of Burlington Northern Industrial Park Renton II, as per plat recorded in
Volume 111 of Plats, page 42 through 44, Records of King County;
TOGETHER WITH the former 20-foot railroad right-of-way lying between and adjoining said lots, as
delineated on the face of said Plat and as abandoned under Recording No. 8909110687;
EXCEPT that portion of said Lot 4, conveyed to the City of Renton for street purposes by Deeds
recorded under King County Recording Nos.8306090701 and 8308050568;
TOGETHER WITH Lot 2 of Glacier Park Short Plat No. SHPL-125-89 as recorded under Recording
No. 9103209006, Records of King County, Washington;
AND TOGETHER WITH the former 20-foot railroad right-of-way lying between and adjoining said
lots, as delineated on the face of said Plat and as abandoned under Recording No. 8909110687;
AND TOGETHER WITH that portion of the 40-foot strip adjoining said property on the East,which
is delineated on the face of said plat as"Springbrook Creek Greenbelt and Pedestrian Easement",
which lies between the Easterly extensions of the North line of Lot 2 of said Short Plat and the
south line of Lot 3 in said Block 7;
Situate in the City of Renton, County of King, State of Washington.
n.3 EXHIBIT A
-34-
EXHIBIT B
COMMON STORM WATER FACILITIES
GO TO NEXT PAGE.
//.3 EXHIBIT B
-35-
EXHIBIT C
LOCATION OF SIGNAGE EASEMENTS
GO TO NEXT PAGE.
//3 EXHIBIT C
-37-
SIGN EASEMENT EXHIBIT Noc,4•54.9.;91,0E ....
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EXHIBIT'C'
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i PORTION OF SEC.25 AND 30,TOWNSHIP 23 NOF01-1,RANGE 5 EAST,W.M. 50.00'
3'X10SIGN58829'24•E 1244.25'
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