Loading...
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 = 2 4 4 ` t r 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. — 1 — "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, —2— 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. —3— 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 — 4 — 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 — 5 — 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 — 6 — 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: —7— (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 —8— 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 —9— 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. — 10 — 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