HomeMy WebLinkAboutR-2014-094 Declaration of Covenants, Conditions and Restrictions; Easements; Creekside West; Wide Hollow; Airport Business Park LLC RESOLUTION NO. R- 2014 -094
A RESOLUTION concerning City of Yakima real estate, authorizing the City Manager to
execute a "Declaration Of Covenants, Conditions And Restrictions With
Reservations Of Easements For Creekside West" to facilitate and
condition the development, maintenance and use of the Creekside West
property that is owned by the City and leased to Airport Business Park,
LLC.
WHEREAS, Wide Hollow Development, LLC entered a lease agreement with the
Yakima Air Terminal for the lease of certain real estate owned by the City as part of the Yakima
Air Terminal, which real property then became subject to a binding site plan and development
agreement that defined the generally anticipated development of the property; and
WHEREAS, Airport Business Park, LLC has become the assignee of the leasehold
interest previously held by Wide Hollow Development, LLC and is currently pursuing the
commercial development of the Creekside West property; and
WHEREAS, in order to facilitate the orderly commercial development of the Airport
Business Park, LLC leasehold ;interest in the City -owned property the parties wish to record
specific covenants, conditions and restrictions, with reservations of easements, for the property,
as specifically provided in they document attached hereto and incorporated herein by this
reference; and
WHEREAS, the City anti the developer have agreed upon the incorporated terms and
conditions of present and future development, maintenance and use of the Creekside West
property that is presently subject to a binding site plan and a development agreement; and
WHEREAS, the City Council finds that it is reasonable, responsible and in the best
interest of the City to provide for the orderly development and maintenance of this attractive
commercial property through the recording of specified covenants, conditions, restrictions and
easements; Now, Therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager of the City of Yakima is hereby authorized and directed to execute the
attached and incorporated "Declaration Of Covenants, Conditions And Restrictions With
Reservations Of Easements For Creekside West" to establish appropriate conditions and
standards for the coordinated, orderly development, maintenance and use of the City property
known as Creekside West.
ADOPTED BY THE CITY COUNCIL this 1s day of July, 2014.
EST: „....... Mica Cawl y, Mayor
relL
WI ADA 41 .-11441
' , ity erk i
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WHEN RECORDED RETURN TO:
Airport Business Park, LLC
P.O. Box 1432
Yakima WA 98907
DOCUMENT TITLE: Declaration of Covenants, Conditions and Restrictions
REFERENCE NUMBER(S) OF DOCUMENTS ASSIGNED OR RELEASED: N/A
GRANTOR: AIRPORT BUSINESS PARK, LLC, a Washington limited liability company,
CITY OF YAKIMA, a municipal corporation
GRANTEE: AIRPORT BUSINESS PARK, LLC, a Washington limited liability company
ABBREVIATED LEGAL DESCRIPTION: Lots 2 thru 22 and Tract A of the Amended
Binding Site Plan of Creekside West, as recorded under Auditor's File No.
7820441, records of Yakima County, Washington.
TAX PARCEL NUMBER: 181334- 21903, 21904, 21905, 21906, 21907, 21908, 21909, 21910,
21911, 21912, 21913, 21914, 21915, 21916, 21917, 21918, 21919, 21920, 21921, 21922,
21923 and 21924.
DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS WITH RESERVATIONS OF EASEMENTS FOR
CREEKSIDE WEST
This Declaration of Covenants, Conditions and Restrictions with Reservations of
Easements (this "Declaration ") is made this '7 day of _, 2014, by AIRPORT
BUSINESS PARK, LLC, a Washington limited liability company ( "Declarant "), and CITY OF
YAKIMA, a Municipal Corporation (the "City ").
RECITALS
A. City is the fee simple owner of that certain land described in Amended Binding
Site Plan recorded under Yakima County, Washington Auditor's File No. 7820441 on December
9, 2013, as further amended by Second Amended Binding Site Plan recorded under Yakima
County Auditor's File No. , on , 2014 (the "Project "),
B. Declarant is the current Lessee and developer of the Project as assignee to the
original Lessee, Wide Hollow Development, LLC, under that certain Lease Agreement dated
April 28, 2005 (the "Wide Hollow Lease "), wherein City of Yakima, a Municipal Corporation,
by and through its predecessor -in- interest, Yakima Air Terminal - McAllister Field (the "City "),
is Lessor.
C. City and Declarant wish to ensure consistent commercial development of the lots
within the Project in furtherance of the Wide Hollow Lease and future Ground Leases (as
defined below) and desire that the same be developed, improved, occupied and operated in
conjunction with each other pursuant to a general plan of improvement for a First Class (as
defined below) business center to be known as "Creekside West ".
AGREEMENT
Section 1.
DEFINITIONS
"Common Area" shall mean all areas and facilities of the Project designated "Private
Road" on the Site Plan (being Creekside Loop, S. 42 " Avenue and Loren Place) intended for the
nonexclusive use of Owners, Occupants and Users in common, designed to include the traveled
portions of such road(s) as well as adjacent sidewalks, curbs, gutters, lighting and storm sewer
drains. Declarant shall have the right to publicly dedicate the Private Roads and, upon request,
each Owner shall join in such dedication.
"Common Area Expense" shall mean the cost to Declarant to maintain, improve, repair
and replace Common Area components, some or all of which cost Declarant may seek to recover
from individual Lot Owners or Occupants as provided in Section 7.3 below.
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"Declarant" means Wide Hollow Development, LLC, and its successors and assigns if
such successors or assigns should be specifically assigned the rights and duties of the Declarant
by written instrument recorded in the real estate records of Yakima County.
"Declaration" shall mean this Declaration of Covenants, Conditions and Restrictions with
Restrictions of Easements for Creekside West, as now existing or hereafter amended or
supplemented from time to time.
"Development Period" means the time during which the Declarant is an Owner of any
Lot within the Project, unless terminated earlier by amendment to this Declaration executed and
recorded by the Declarant.
"First Class" shall mean a comparative standard of quality judged in accordance with
other similar well - maintained business centers in the Yakima area.
"Ground Lease" shall mean each existing or future ground lease with the City (or any
future owner of the Project) of a Lot or Lots within the Project, including, without limitation, the
Wide Hollow Ground Lease.
"Improvement" or "Improvements" shall mean buildings, outbuildings, roads, driveways,
parking areas, fences, screening, walls and barriers, retaining walls, rockeries, decks, water lines,
sewers, electrical and gas distribution facilities, hedges, windbreaks, planted trees and shrubs,
poles, signs, loading areas and all other structures, installations and landscaping and irrigation
systems of every type and kind, whether on, above or below the land surface.
"Lot" or "Lots" shall mean a Lot or Lots designated in the Site Plan from time to time,
which are to be utilized for constriction of building improvements, including appurtenant
canopies, signs, sidewalks, planters, compactors, truck loading or delivery docks or areas, truck
ramps and wells. The precise area of the Lots (other than Lots 2, 3 and 4) are not yet finally
determined as of the date of this Declaration and the final boundaries of such Lots (other than
Lots 2, 3 and 4) may be established in the future by recorded amendments to the Site Plan signed
by City and the Owners and Mortgagees of the affected Lots.
"Mortgage" shall mean a mortgage, deed of trust, security agreement, fixture filing, real
estate contract, or sale and leaseback used for financing purposes, affecting all or any portion of
the Project.
"Mortgagee" shall mean a Person who is, with respect to all or any portion of the Project
(including any Lot), the holder or beneficiary of any Mortgage, the holder of the vendor's
interest in any real estate contract, and/or the fee owner /lessor in any sale and leaseback used for
financing purposes.
"Occupant" shall mean a lessee or licensee of an Owner, or any other person other than
an Owner, in lawful possession of Improvements located on the Project, or any portion thereof,
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with the permission of an Owner.
"Owner" shall mean and refer to the Declarant and any Person who is or shall become (a)
the record owner of fee title to Improvements upon any Lot (subject to the interest of City as
Ground Lessor), (b) the purchaser under a real estate contract in actual possession of a Lot or its
Improvements and (c) the ground lessee of any Lot under a Ground Lease. An Owner shall not
include any entity or Person who holds an interest in any of the foregoing as security for the
payment of an obligation.
"Person" shall mean and include any natural person, and any partnership, firm,
association, corporation, trust, limited liability company, or any other form of business entity.
"Sign" shall mean any structure, device or contrivance, electric or non - electric, upon or
within which any poster, bill, bulletin, printing, lettering, painting, business name, information or
advertising device of any kind whatsoever is used, placed, posted, tacked, nailed, pasted, painted
or otherwise fastened or affixed.
"Site Plan" shall mean the Second Amended Binding Site Plan for the Project, as
identified above, including future amendments thereto.
"Users" shall mean all Persons having a right to use Common Area, including Occupants,
employees and service people, licensees, invitees, customers, Owners, contractors, agents,
lessees, sublessees, tenants and concessionaires.
"Utilities" shall mean water, sanitary and storm sewer lines, drains and related facilities,
water mains, water sprinkler systems lines, conduits or systems, telephone lines, electrical
utilities or systems, television or interne cable, gas mains and other utilities and services,
together with all Improvements, replacements, modifications, additions, extensions or new
construction, whether such system, line or facility is now in place or hereafter exists in, on, or
about the Project.
Section 2.
GENERAL DECLARATION
Declarant and City hereby declare that the entire Project is, and shall be, conveyed,
hypothecated, encumbered, leased, subleased, occupied, built upon or otherwise used, improved
or transferred in whole or in part, subject to this Declaration. All of the covenants, conditions
and restrictions set forth herein are declared and agreed to be in furtherance of a general plan for
the subdivision, improvement and occupation of the Project and are established for the purpose
of enhancing and protecting the value, desirability and attractiveness of the Project and every
part thereof. Except as otherwise specifically provided herein, all of said covenants, conditions
and restrictions shall be binding upon Declarant, the City and all Owners, Occupants, and their
respective assigns and successors in interest.
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Section 3.
IMPROVEMENT STANDARDS
3.1 Signs. All Signs shall be subject to all applicable laws and ordinances of
governmental agencies having jurisdiction. No Sign shall be located on the Common Area
except for traffic control Signs, and except that Declarant may install free - standing Signs on
Common Area, No Signs may be located so as to obstruct the ingress and egress shown on the
Site Plan, including "Clear View Sight Triangles ".
3.2 Fences. No fences or walls shall be permitted on any Lot unless such fence or
wall is necessary for security or screening purposes, and, during the Development Period, then
only after approval of Declarant of the location, nature, plans and specifications thereof, in
Declarant's sole discretion. At no time will Declarant approve any fence (or wall in lieu of
fence) which exceeds six feet in height, excepting any retaining wall required by written opinion
of a civil engineer to conform to the natural terrain of the Lot. No chain link or wire fences shall
be permitted.
3.3 Improvements. For the purpose of maintaining specific architectural guidelines
and standards for the development of all of the Lots, during the Development Period, no
construction shall be permitted on any Lot until after submission of two (2) sets of preliminary
plans and final plans, complete building and site plans for the Improvements intended to be
constructed thereon, to the Declarant, or its designee or successor, setting forth the general
arrangements of the exterior of the intended Improvements, including the color and texture of the
exterior building materials and appurtenant elements such as decorative walls, chimneys,
driveways and walkways, and detailing the location of each Improvement on the Lot, including
setbacks, driveway locations, orientation of structures to the topography and grading and
drainage plans. During the Development Period, no excavation shall be made, no Improvement
shall be erected and no materials shall be stored upon the Project by an Owner, Occupant or
sublessee until the Declarant shall have approved said plans and specifications in writing. If the
Declarant fails within thirty (30) days after receipt of the foregoing complete plans and
specifications for Improvements on a Lot, to either approve or disapprove said plans and
specifications, the plans and specification and Improvements on such Lot shall be deemed to
have been approved and the requirements herein fulfilled, for that particular Improvement. If the
Declarant disapproves said plans and specifications, the proponent may revise and resubmit said
plans and specifications until approval is received. The completion of construction of an
Improvement without the written objection by the Declarant shall also be deemed to be approval
of that particular Improvement and that the requirements herein fulfilled for that particular
Improvement.
In reviewing plans and specifications submitted, Declarant will take into consideration
plans and specifications already approved or in the process of being reviewed for approval of
proposed Improvements on adjacent Lots and the effect of said proposed Improvements on the
Lot with reference to its effect upon the neighboring Lots and overall development of the Site
Plan. The Declarant shall not be responsible nor liable to any Lot Owner or Occupant by reason
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of the exercise of its judgment in approving or disapproving plans submitted nor shall it be liable
for any expenses incurred by any Lot Owner or Occupant in the preparation, submission and, if
desired. resubmission of proposed plans and specifications. Declarant shall not be responsible
for ensuring that submitted plans and specifications will comply with applicable zoning and
building codes and the Lot Owner or Occupant shall be solely responsible for compliance with
all laws, regulations and building and zoning requirements, including those mandated by Federal
Aviation Administration.
Declarant may not require an Owner to violate the standards and requirements established
by applicable laws of the City of Yakima (including zoning and building codes). Declarant shall
treat all Owners fairly and equitably; and, while recognizing that each Improvement is unique,
Declarant will be as consistent as practical in its review of plans submitted for Improvements.
Notwithstanding the foregoing, this Section 3.3 shall not apply to, and the following shall
not require the consent of Declarant or any other Person: (a) normal maintenance and repair of
existing Improvements and landscaping, (b) repair, reconstruction and replacement of damaged
Improvements and landscaping provided such replacement is substantially similar in design,
height, size, dimensions, colors, and materials as existed prior to such damage (provided,
modification may be made to the original design, height, size, dimensions, colors, and materials
without the consent of Declarant if required to due to changes in zoning and building codes) and
(c) any construction, reconstruction, remodeling, replacements, maintenance, or repairs to the
interior of any Improvements.
3.4 Prior to Construction. Prior to commencement of construction of Improvements,
each Lot shall be at all times kept in a neat, clean, sightly and safe condition, at the sole cost of
the Owner of such Lot. For clarification, all portions of the Project that are located outside of the
boundaries of the Lots, other than the Common Area, shall be maintained owned and operated by
Declarant at its sole cost, including the payment of real estate taxes and assessments. All
Improvements must be completed within twelve (12) months from the date construction begins,
except that completion of landscaping must be completed prior to occupancy, weather
permitting, and all interior improvements to buildings and structures must be completed within
eighteen (18) months from the date construction begins on said Improvements, unless, during the
Development Period, otherwise approved by Declarant. All construction work shall be
performed and completed in a good and workmanlike manner, in strict compliance with all
applicable building and other codes and regulations applicable thereto, and in such manner as not
to unreasonably interfere with or obstruct access to or from the Project or any other Lot within
the Project.
3.5 Parking Areas. All parking shall be within the boundaries of each Lot for the
clients, employees, invitees and guests of each respective Lot Owner or Occupant. No off -site
parking shall be permitted nor provided. No overnight parking of semi trucks or delivery
vehicles shall be permitted unless such parking spaces are provided for in a designated area and,
during the Development Period, approved by the Declarant. No Owner or Occupant shall permit
use of the exterior portions of its Lot by a third party for the sale of goods or merchandise of any
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type.
3.6 Storage. No outside storage of materials, supplies, equipment, and /or trucks or
other motor vehicles, shall be permitted (except as reasonably required incident to construction,
reconstruction or repair of Improvements).
3.7 Repair of Buildings. No Improvement upon any Lot shall be permitted to fall into
disrepair, and each Improvement shall at all times be kept in good condition and repair and
adequately painted or otherwise finished.
3.8 Utility Lines and Antennas. No sewer, drainage or utility lines or wires or other
devices for the communication or transmission of electric current, power or signals, including
telephone, television, microwave, cellular or other radio signals, shall be constructed, placed or
maintained anywhere in or upon any portion of the Project other than within buildings or
structures unless the same shall be contained in conduits or cables constructed, placed or
maintained underground or concealed in or under buildings or other structures in the easement
areas shown on the Site Plan. Antennae for the transmission or reception of telephone,
television, microwave, cellular, or other radio signals, shall be appropriately screened so as to
have minimum visual impact on surrounding streets, public spaces and Common Area. Nothing
contained herein shall be deemed to prevent an Owner or Occupant from allowing the erection or
use of temporary above ground power or telephone facilities incidental to the construction or
repair of Improvements in the Project.
3.9 Mechanical Equipment. All mechanical equipment, utility meters, storage tanks,
air conditioning equipment and similar items shall be screened with landscaping or attractive
architectural features integrated into the structures themselves.
3.10 Mailboxes. All mail boxes within the Project shall be of similar design, color and
construction as determined by Declarant during the Development Period and shall be provided
by the Owner or Occupant of each Lot.
Section 4.
TEMPORARY STRUCTURES
Except incidental to the active construction or repair of Improvements in the Project, no
temporary building, trailer, garage, storage building or structure shall be placed upon any Lot for
storage or other use. The Declarant shall be entitled to maintain temporary buildings, trailers,
garages and storage buildings for development, construction and sales /leasing purposes. Said
temporary structures whether used by an Owner or the Declarant shall be subject to the same
time limitations for placement and removal as are identified in Section 3.4 above, pertaining to
constructing improvements.
Section 5.
WASTE DISPOSAL
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No Lot shall be used or maintained as a dumping ground for rubbish. Trash, bags, or
other waste shall only be kept in sanitary containers and shall be disposed of in accordance with
state and local laws and regulations. All equipment for the storage or disposal of such material
shall be kept in a clean and sanitary condition and removed from view from the streets and
abutting Lots by a screening wall of fencing or landscape material.
Section 6.
MAINTENANCE OF PARKING LOTS, LANDSCAPING
In order to ensure continued uniform aesthetic appearance of the Project, each Lot Owner
or Occupant shall during the Development Period, contract with Declarant or Declarant's
designee for maintenance of parking lots, landscaping, and Improvements within each Lot, upon
terms and conditions as they shall mutually determine, provided, that Declarant shall use good
faith in setting fees and charges for its services and products in conjunction with this Section 6,
so that said fees and charges are substantially equivalent to those being charged by other
commercial providers in the Yakima area for similar work and products. Said contractual
undertakings may be set forth in leases or subleases for respective Lots, or by separate written
documentation. In any event, it shall be the continuing duty and responsibility of each Lot
Owner or Occupant to accomplish maintenance, repair and replacement of its parking lot,
landscaping and Improvements in a clean and attractive condition and in good repair.
Section 7.
REGULATION OF OPERATION AND USES
7.1 Permitted Uses and Restrictions. The Project and the Improvements constructed
thereon shall be used for commercial and professional office purposes only, which shall be
limited to the development, construction, leasing, subleasing, operation and maintenance of retail
sales, food and beverage production and service, and professional office undertakings. No part
of the Project shall be used for (i) any assembling, manufacturing, refining, smelting, agricultural
or mining use; (ii) for any mobile home park, trailer court, labor camp, junk yard or stock yard;
(iii) for any dumping, disposition, incineration or reduction or garbage use (exclusive of garbage
compactors otherwise permitted hereunder and the temporary storage by Declarant of soil from
on -site construction or to be utilized for on -site construction within the Project); (iv) for any fire
sale, bankruptcy sale (unless pursuant to court order) or auction house use; (v) for any central
laundry or dry cleaning plant use; (vi) for any entertainment or recreational facilities (other than
those utilized in conjunction with an operating restaurant or other food /beverage production or
service), penny arcades or game rooms, massage parlors, adult book stores, or adult theaters, or
health spas, studios or gyms; (vii) for any veterinary hospital or animal raising use; (viii) for any
mortuary use; or (ix) for any dance hall or teen night club.
7.2 Nuisances. No nuisance shall be permitted to exist or operate upon any Lot so as
to be offensive or detrimental to any adjacent Lot or site or neighboring property or to its Owner
or Occupants. A "nuisance" shall include, but not be limited to, any of the following:
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(A) Emission of smoke, dust, dirt or other particulates into the atmosphere
(other than odors legally permitted in connection with an operating restaurant).
(B) Discharge on or about the Project or in any stonn sewer, sanitary sewer or
waterway leading from the Project of any hazardous or toxic material. Hazardous and toxic
materials shall mean and include any material which is defined as hazardous or toxic in
applicable state, local or federal laws or regulations relating to health and the environment,
including without limitation, petro - chemicals, detergents, solid wastes, paint residues and
pesticides. It shall not be a nuisance, however, to use or dispose of materials used in the ordinary
course of operating and maintaining Improvements located on the Project, provide such storage,
use and disposal is in accordance with all applicable local, state, or federal statutes and
regulations and manufacturer's instructions.
(C) The escape or discharge of any fumes, odors, gases, vapors, steam, acids
or other substance into the atmosphere which may be detrimental to the health, safety, comfort or
welfare of any Person on or adjacent to the Project, or which may be harmful to property or
vegetation (other than odors legally permitted in connection with an operating restaurant), which,
during the Development Period, shall be determined by Declarant.
(D) The radiation or discharge of intense light, glare or heat, or atomic,
electromagnetic, microwave, ultrasonic, laser or other radiation. Any operation producing
intense glare or heat or such other radiation shall be performed only within an enclosed or
screened area and then only in such manner that the glare, heat or radiation emitted will not be
discernible from any point exterior to the Project or Lot upon which the operation is conducted.
(E) Noise which unreasonably disturbs the peace of the Project area, taking
into consideration the nature of the uses peuuitted in the Project, and any noise which violates
any applicable law.
7.3 Common Area Maintenance. Declarant shall maintain, as a Common Area
Expense, the Private Roads and associated lighting, curbs, gutters and sidewalks adjacent to
Private Roads, entryways into the Project, and private water, sewer and utility lines within or
beneath the Private Roads or the easement areas shown on the Site Plan that benefit more than
one Lot, recovering the cost thereof from Owners or Occupants, to the extent Declarant is able to
do so by way of leases or subleases, or contracts with individual Lot Owners or Occupants,
absorbing at its own expense any cost thereof not to be recovered by way of such contractual
undertakings. In no event shall (a) the share of Common Area Expenses payable by the
Owner(s) and Occupant(s) of a Lot be in excess of a percentage determined by the land area of
such Lot divided by the aggregate land area of the Project and (b) any Owner(s) and Occupant(s)
of a Lot be liable for Common Area Expenses incurred more than 12 months prior to Declarant's
demand therefor or resulting from any damage caused by the Owners or Occupants of another
Lot (except for ordinary wear and tear). Common Area Expenses shall not include the costs and
expenses incurred in the original construction of any Improvements or facilities (e.g, roads and
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sidewalks) in the Common Area (or repairing any defects therein). Declarant shall maintain said
Common Area facilities in a First Class condition, reasonable wear and tear excepted.
Section 8.
USE OF COMMON AREA
8.1 Subject to existing easements of record, the Common Area shall be used for
roadways, sidewalks, walkways, ingress, egress, and passage of motor vehicles and pedestrians.
No Owner nor Occupant shall use any portion of the Common Area for the sale of merchandise,
for promotional or public interest events, or for any purpose other than that set forth in this
Section 8.1.
8.2 No Improvements, walls, fences or barriers of any kind shall be constructed or
maintained in or on the Common Area, or any portion thereof, which shall prevent or impair the
use of any of the easements granted herein or the free access and movement, including, without
limitation, of pedestrian and vehicular traffic between the Lots.
8.3 No parking shall be permitted on the Common Area.
Section 9.
EASEMENT S
9.1 Ingress, Egress. Declarant and City hereby grant, declare and reserve for the
benefit of each Lot and themselves and their respective successors and assigns, including Owners
and Occupants and Users, the nonexclusive right of ingress and egress by vehicular and
pedestrian traffic over and across all of the Common Area within the Project. The easements
created by this Section 9.1 shall survive termination of this Declaration and shall be perpetual.
9.2 Utilities. Declarant and City hereby grant, declare and reserve for the benefit of
each Lot and themselves and their respective successors and assigns, including Owners and
Occupants, nonexclusive easements under, through and across (a) the Common Area of the
Project (for all utilities) and (b) all easements areas depicted on the Site Plan (for all utilities, but,
if applicable, limited to the type of utility set forth on the Site Plan for each such easement area)
for installation, maintenance, repair, replacement and relocation of Utilities, all of which shall be
located below the surface of the Project (except for normal above - ground vaults and other similar
improvements). All easement areas for utilities shown on the Site Plan are also for the non-
exclusive use, in common with Owners and Occupants of the Lots, of any public or private
utility companies serving the Project. All utilities installed in the easement areas so provided
shall be represented on City- approved development plans and designs consistent with City
development regulations. In the event it is reasonably necessary for any Owner to cause the
installation of Utilities across the Common Area or other easement areas shown on the Site Plan
subsequent to the initial paving and /or improving thereof, the Declarant and City agree not to
unreasonably withhold the granting of an additional easement or easements or consent to install
such Utilities; provided, however, that the granting of such easement or easements or consent to
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install such Utilities does not unreasonably interfere with the normal operation of any business in
the Project, and provided further that the party desiring such installation and /or easement shall
pay for the restoration of the Common Area or other easement areas shown on the Site Plan to its
prior condition. Easements created by or pursuant to this Section 9.2 shall survive termination of
this Declaration and shall last so long as the particular Utility systems, structures, mains, sewers,
conduits, or lines shall be used and maintained following their initial construction or following a
reconstruction where such Utility is substantially restored to its prior condition following a
casualty or condemnation.
Section 10.
REMEDIES
10.1 Right to Cure or Abate. If any Owner or Occupant (a "Defaulting Owner ")
violates any covenant, condition or restriction contained in this Declaration, or permits or suffers
any Occupant of its Lot or Building to violate any covenant, condition or restriction of this
Declaration, then Declarant or any other Owner or Occupant (collectively "Creditor Owner ")
may demand by written notice (the "Default Notice ") that the violation be cured. If the
Defaulting Owner does not cure the violation within thirty (30) days after receipt of the Default
Notice, or if such default is of a kind which cannot be cured within thirty (30) days, and the
Defaulting Owner does not within such thirty (30) day period commence to cure to completion,
then Creditor Owner (and its agents and employees) shall have the right to (i) pay any sum owed
by the Defaulting Owner to the Person entitled thereto, (ii) enter upon the Lot of the Defaulting
Owner (or any portion of the Common Area owned by the Defaulting Owner) and summarily
abate, remove or otherwise remedy any Improvement, thing or condition which violates the
terms of this Declaration, and (iii) enter upon the Lot of the Defaulting Owner (or any portion of
the Common Area owned by the Defaulting Owner) and perform any obligation of the
Defaulting Owner to be performed thereon. The Defaulting Owner shall, within ten (10) days of
written demand by the Creditor Owner, accompanied by appropriate supporting documentation,
reimburse the Creditor Owner for all costs and expenses incurred by the Creditor Owner in
undertaking any of the actions permitted by clauses (i) through (iii) in the preceding sentence,
including without limitation, wages, benefits and overhead allocable to the time expended by any
employee of the Creditor Owner in taking such actions, together with interest thereon at the rate
of twelve percent (12 %) per annum, from the date such costs and expenses were advanced or
incurred by the Creditor Owner.
10.2 Suit. The Owner or Occupant of each Lot shall be primarily liable for violation or
breach of any covenant, condition or restriction of this Declaration. Violation or breach of any
covenant, condition or restriction herein contained shall give to Declarant, Creditor Owner or
other Owner or Occupant of any Lot the right to prosecute a proceeding at law or in equity
against the Person or Persons who have violated or are attempting to violate any of these
covenants, conditions or restrictions to enjoin or prevent them from doing so, to cause said
violation to be remedied, or to recover damages for said violation, it being agreed that the
remedy at law for the breach of violation of any of these covenants, conditions or restrictions
(except those, if any, requiring the payment of a liquidated sum) is not adequate.
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10.3 Personal Obligation. Each Owner and Occupant, by acceptance of the deed to,
lease or sublease of, or other conveyance of all or a portion of a Lot or interest therein, shall be
deemed to covenant and agree to be personally bound by this Declaration. Any sum not paid, or
other obligation not performed when due, together with interest payable hereunder, and all costs
and attorneys' fees incurred in connection with collection, shall be the personal obligation of the
Person or Persons who were the Owners and /or Occupants of the Lot at the time the payment or
obligation became due.
10.4 Attorneys' Fees. In any legal or equitable proceeding for the enforcement of this
Declaration or any provision hereof, whether it be an action for damages, declaratory relief or
injunctive relief, or any other action, the losing party or parties shall pay the attorneys' fees of
the prevailing party or parties, which shall be fixed by the court in such proceedings or in a
separate action brought for that purpose. All remedies provide herein or at law or in equity shall
be cumulative and not exclusive.
10.5 Failure to Enforce No Waiver. Any failure to enforce any requirement, restriction
or standard herein contained shall in no event be deemed to be a waiver of the right to do so
thereafter or in other cases, nor of the right to enforce any other restriction.
Section 11.
AMENDMENTS, MODIFICATIONS
11.1 Declaration and Site Plan Amendments. This Declaration (including all Exhibits
hereto) and /or the Site Plan may be modified only by a written instrument referring to this
Declaration and recorded in the real property records of Yakima County, Washington, that has
been executed and acknowledged by (a) City, (b) Owners of not less than sixty -seven percent
(67 %) of the land comprising the Lots in the Project and their respective Mortgagees and (c) any
Owner or Owners of a Lot or Lots that are adversely affected by the modification set forth in
such written instrument. In no event shall any purported modification or termination be violative
of any Ground Lease nor the Development Agreement between City and Declarant recorded
under Yakima County Auditor's File No. 7582253 on September 21, 2007.
11.2 Consent of Mortgagees. Notwithstanding anything herein to the contrary, (a)
Declarant, City or any Owner may not add, subject or withdraw land or any portion thereof
(including any Common Area or easement areas shown on the Site Plan) to or from this
Declaration or the Site Plan, in each case, without the prior written consent of all Mortgagees
holding any unsatisfied Mortgages duly recorded against the Project or portion thereof that is
proposed to be added or subjected to or withdrawn from this Declaration and (b) no amendment
of this Declaration or the Site Plan shall be effective to modify, change or limit or alter the rights
expressly conferred upon Mortgagees in this Declaration with respect to any unsatisfied
Mortgage duly recorded unless the amendment shall be consented to in writing by the holder of
such Mortgage. In addition, notwithstanding any other provision of this Declaration, the consent
of all Mortgagees holding any unsatisfied Mortgages duly recorded against any Lot shall be
— 11 —
required in order to materially amend any provisions of this Declaration, which establish,
provide for, govern, or regulate any of the following with respect to such Lot: (a) voting rights;
(b) assessments or assessment liens; (c) responsibility for maintenance and repair of any portion
of the Common Area or other easement areas shown on the Site Plan; (d) rights to use the
Common Area or other easement areas shown on the Site Plan; (e) boundaries of the Lot;
(f) rights of an Owner to sell, transfer or lease a Lot; and /or (g) imposition of any right of first
refusal or similar restriction on the right of an Owner to sell, transfer, mortgage, encumber, or
lease its Lot. A Mortgagee who receives a written request to consent to an amendment who does
not deliver or post to the requesting party a negative response within thirty (30) days shall be
deemed to have consented to such request, provided the request was delivered by certified or
registered mail, return receipt requested. Any provision of this Section 11 conferring rights upon
Mortgagees which is inconsistent with any other provision of this Declaration shall control over
such other inconsistent provisions.
Section 12.
DURATION
This Declaration and all the easements, rights and obligations set forth herein shall be
perpetual. For clarification, this Declaration may only be terminated by a written instrument
referring to this Declaration and recorded in the real property records of Yakima County,
Washington, that has been executed and acknowledged by City and all the Owners.
Section 13.
RIGHTS AND OBLIGATIONS OF LENDERS
The easements, restrictions, charges and burdens of this Declaration are, and shall at all
times be, prior and therefore superior to the lien or charge of any Mortgage affecting any Lot or
any part thereof, or any Improvements now or hereafter placed thereon, and shall be binding
upon and effective against any Person (including a Mortgagee) who acquires title to any of the
Project by foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise. However, a
breach of any of the easements, covenants, or restrictions hereof shall not defeat or render invalid
the lien or charge of any Mortgage made in good faith and for value. Any notices provided by an
Owner or Occupant to another Owner or Occupant of a Lot related to this Declaration shall also
be given to any Mortgagee of such Lot. Any notices provided by City to an Owner or Occupant
of a Lot related to this Declaration shall also be given to any Mortgagee of such Lot. Any
Mortgagee shall be entitled to attend any meetings of the Owners related to this Declaration.
Section 14.
NO PUBLIC DEDICATION
Nothing herein contained shall be deemed to be a gift or dedication of any portion of the
Project or of any Lot or the Common Area to the general public or for any public purposes
whatsoever, it being the intention of the parties hereto that this Declaration shall be strictly
limited to and for the purposes herein expressed for the development, maintenance and operation
— 12 —
of a private commercial /professional office center on privately - leased property solely for the
benefit of the Owners, City and Declarant. The right of the public or any person to make any use
whatsoever of the Common Area of the Lots herein affected, or any portion thereof (other than
any uses allowed by a written or recorded map, agreement, deed or dedication) is by permission
and subject to this Declaration. Notwithstanding any other provisions herein to the contrary,
each Owner may periodically restrict ingress and egress to and from the Common Area by any
Person including Users in order to prevent a prescriptive easement from arising by reason of
continued public use. Any restriction on ingress and egress shall be limited to the minimum
period necessary to prevent the creation of a prescriptive easement and shall occur at such time
as to have a minimum effect on Users.
Section 15.
WAIVER
No Owner nor Occupant shall be liable to any other Owner or Occupant for the
enforcement or failure to enforce any provision of this Declaration.
Section 16.
RUNS WITH THE LAND
Except as otherwise specifically provided herein, all covenants, conditions, restrictions
and agreements herein contained, or hereafter created pursuant to this Declaration, are made for
the direct, mutual and reciprocal benefit of each and every Lot of the Project and each Owner;
shall create mutual equitable servitude upon each Lot in favor of every other Lot; shall create
reciprocal rights and obligations between respective Owners and Occupants of all Lots and
privity of contract and estate between all Owners of all Lots, their heirs, successors and assigns;
and shall, as to the Owner and Occupants of each Lot, their heirs, successors and assigns, operate
as covenants running with the land, for the benefit of all other Lots.
Section 17.
RIGHTS OF BENEFICIARIES
No breach of any covenant, condition or restriction herein contained, or any enforcement
thereof, shall defeat or render invalid the lien of any Mortgage; provided, however, that if any
portion of the Project is sold under a judicial or nonjudicial foreclosure of a Mortgage, any
purchaser at such sale and its successors and assigns shall hold any and all property so purchased
subject to all of the covenants, conditions, restrictions and easements contained in this
Declaration.
Section 18.
ESTOPPEL CERTIFICATE
City, Declarant or any Owner may, at any time and from time to time, in connection with
the sale or transfer of a Lot, or in connection with the financing or refinancing of a Lot by
— 13 —
Mortgage made in good faith and for value, deliver written notice to the Declarant, City or to
other Owners or Occupants requesting such others to certify in writing that, to the knowledge of
the certifying Person, (i) this Declaration is in full force and effect, (ii) this Declaration has not
been amended or modified, either orally or in writing, or, if so amended, identifying the
amendments, and (iii) the Owner or Occupants of the Lot referenced in such written notice is not
in default in the performance of its obligations under this Declaration or, if in default, to describe
therein the nature and amount of any and all defaults. Each Person receiving such request
covenants to execute and return such certificate within twenty (20) days following receipt
thereof. Such certificate shall act as a waiver of any claim by the Person furnishing it to the
extent such claim is based upon facts contrary to those asserted in the certificate and to the extent
the claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge
of facts to the contrary of those contained in the certificate, and who has acted in reasonable
reliance upon the certificate. Failure by a requested Person to so execute and return such
certificate within such period shall be deemed an admission on such Person's part that the Owner
and Occupant of the Lot referenced in such certificate is current and not in default in the
performance of such Owner's and Occupant's obligations under this Declaration.
Section 19.
NOTICES
Any demand, request or notice which any party hereto desires or may be required to
make or deliver to the other shall be in writing and be deemed effective when personally
delivered, or when delivered by private courier service (such as Federal Express), when received
by facsimile at the facsimile number provided by the addressee to the party sending the notice, or
three (3) days after being deposited in the United States mail, in registered or certified form,
return receipt requested, to the address of the Lot or Lots owned or occupied by the Person being
notified, or to the most recent address provided to the Requesting/Notifying Person by the Person
being notified, or if no address has been provided and no improvements exist on such Person's
Lot or Lots, to the address for registered agent for any entity or at any address maintained by
Yakima County for real or personal property taxes associated with the Lot.
Section 20.
CONVEYANCES
The right of an Owner to sell, transfer, lease, mortgage, or otherwise convey its Lot shall
not be subject to any right of approval, disapproval, first refusal, or similar restriction by City,
Declarant or any other Owner or Occupant except as set forth in any Ground Lease.
Section 21.
MISCELLANEOUS
— 14 —
In the case of joint ownership of a Lot, the liability of each of the Owners thereof in
connection with the liabilities and obligations of Owners, set forth in or imposed by this
Declaration, shall be joint and several. The provisions hereof shall be deemed independent and
severable, and the invalidity or partial invalidity or unenforceability of any one provision or
portion thereof shall not affect the validity or enforceability of any other provision hereof. The
provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a
uniform plan for the operation and maintenance of the Project. 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 Declaration shall take effect upon
recording.
[signatures on following page]
— 1 5 —
IN WITNESS WHEREOF, the parties hereto have executed this Declaration of
Covenants, Conditions and Restrictions with Reservations of Easements for Creekside West.
AIRPORT BUSINESS PARK, LLC,
a Washington limited liability company
By: . Are Date: - 2-4 , 2014
Trent Marquis, Ma • , *ng Member
CITY OF AKIMA, WASHINGTON
By: . , Date: 7 ' 1- , 2014
ony • urke, City Manager
CI
TV CQNTRAc r
RES OLUTION
•
—16—
ACKNOWLEDGEMENT OF DECLARANT
STATE OF WASHINGTON )
) ss.
County of Yakima )
I certify that I know or have satisfactory evidence that TRENT MARQUIS, signed this
instrument, on oath stated that he was authorized to execute the instrument and acknowledged it
as the Managing Member of AIRPORT BUSINESS PARK, LLC, a Washington limited liability
company, to be the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
Given under nit flinyl official seal this ) ,' day of 4.-t , 2014.
...• Si 0 : • i (
f'
ti.
M ' � J TARY PUBLIC i and for the
Ic tt 9 ' 9 ) - ,�: ate of Washington,
- ; G r) n � gt
yti;, /�2,Sesiding at YQ ��
mf/ '9sy�NrTG `` \'• y term expires: ��l y.5'/s
intiet►te
—17—
ACKNOWLEDGEMENT OF CITY
STATE OF WASHINGTON )
) ss.
County of Yakima )
I certify that I know or have satisfactory evidence that TONY O'ROURKE, signed this
instrument, on oath stated that he was authorized to execute the instrument and acknowledged it
as the City Manager of CITY OF YAKIMA, WASHINGTON, a municipal corporation, to be the
free and voluntary act of such party for the uses and purposes mentioned in the instrument.
Given under my hand and official seal this j -- day of , 2014.
KAARRE ALLYN (_-c --C Z t) ..---
Notary Public NOTARY PUBLIC in and for the
State of Washington State of Washington,
My Commission Expires i_
April 11, 2016 Residing at -. 1 <L� 1/ � LPL /
- My term expiresr - 1 8 -
F x.11
Ii ~
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 8.
For Meeting of: July 01, 2014
ITEM TITLE: Resolution authorizing execution of a "Declaration Of
Covenants, Conditions And Restrictions With Reservations Of
Easements For Creekside West" to facilitate and condition
the development, maintenance and use of the Creekside
West property that is owned by the City and leased to Airport
Business Park, LLC.
SUBMITTED BY: Jeff Cutter, City Attorney - 575 -6030
SUMMARY EXPLANATION:
A number of years past the Yakima Air Terminal Board entered into a lease agreement with
Wide Hollow Development, LLC for certain property owned by the City and associated with the
Yakima Air Terminal, known as Creekside West. More recently, Wide Hollow Development
Assigned this leasehold interest, with the Yakima Air Terminal's permission, to Airport Business
Park, LLC. The present leaseholder has initiated development on the property, and associated
with that development wishes to record a "Declaration Of Covenants, Conditions And
Restrictions With Reservations Of Easements For Creekside West" to establish formal
requirements for the development, maintenance and use of the entire leasehold property that is
designated by an underlying binding site plan and development agreement.
The "Declaration Of Covenants, Conditions And Restrictions With Reservations Of Easements
For Creekside West" provides a formal guide for high quality commercial development on the
property as well as identifying the maintenance responsibilities and permitted uses for the
commercial development thereon. Providing the oversight presented in the attached
documents will result in a coordinated and attractive development consistent with the
surrounding structures and appropriate for the optimal development opportunities.
Resolution: X Ordinance:
Other (Specify): Covenants, Conditions, Restrictions, Reservations
of Easements.
Contract: Contract Term:
Start Date: End Date:
Item Budgeted: No Amount:
Funding Source /Fiscal
Impact:
Strategic Priority: Public Safety
Insurance Required? No
Mail to: Airport Business Park, LLC, P.O. Box 1432, Yakima, WA
98907
Phone:
APPROVED FOR
SUBMITTAL: City Manager
RECOMMENDATION:
Adopt the Resolution.
ATTACHMENTS:
Description Upload Date Type
0 YAT - Creekside West Declaration of Covenants-6- 6/24/2014 Resolution
2014
YAT - Creekside West Declaration - Almon- 062314 6/24/2014 Contract
YAT - Creekside West Declaration -Cover Page 6/24/2014 Backup Material
Almon -6 -2014