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HomeMy WebLinkAbout2017 - Common Area Cost-Sharing Agreement and Easements, Covenants, Conditionas and Restrictions - Southcenter Corporate Square - 20170719000147WHEN RECORDED RETURN TO: Southcenter Corporate Square, LLC c/o Pacific Realty Advisors LLC 411 University Street, Suite 1200 Seattle, WA 98101 Attention: Jack Rader N i i i N i i i 11 1 i i 20170719000147 COVENANT Rec: $105.00 Pages:33 7/19/2017 10:12 AM KING COUNTY, WA i Document Title: Common Area Cost Sharing Agreement and Easements, Covenants, Conditions and Restrictions for Southcenter Corporate Square Grantor: Southcenter Corporate Square, LLC Grantee: Southcenter Corporate Square, LLC Legal Description: Abbreviated Legal Description: Lots 3 and 4, City of Tukwila Short Plat Number L97-0049 (Southcenter Corporate Square), According to the Short Plat recorded under Recording Number 9711069009, records of King County, Washington Full Legal Description: See Exhibit A attached Assessor's Tax Parcel Nos.: 2623049143; 2623049144 Reference Nos. of Documents Amended: 9711060371; 20040708000011 COMMON AREA COST -SHARING AGREEMENT AND EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS FOR SOUTHCENTER CORPORATE SQUARE This Agreement is made as of as of June 19, 2017, by SOUTHCENTER CORPORATE SQUARE, LLC, a Delaware limited liability company ("Declarant"). RECITALS: A. Declarant is the owner of the real property located in Tukwila, King County, Washington, legally described in Exhibit A attached (the "Property"). The Property is currently improved with 11 buildings used for office and other commercial purposes. 3924/060 06/19/17 tbarke\southcenter corp square -1- cc&rs final B. The Property and the improvements thereon are currently known as Southcenter Corporate Square (the "Park"). C. Declarant desires to create certain easements in, to, over and across the Property to assure the proper and efficient development, operation and functioning of the Park, to create provisions for the construction, maintenance and operation of the Common Areas and other buildings and improvements now or hereafter constituting the Park, and to make certain other covenants and agreements relating to the Park as more specifically set forth in this Agreement. AGREEMENT: Declarant covenants, agrees and declares that all of the Property, and the buildings, structures and other improvements now or hereafter constructed thereon, are and will be held, developed, used, sold, conveyed, leased and encumbered subject to and burdened by the following covenants, conditions, restrictions and easements, all of which will be binding upon and benefit Declarant and all future holders of all or any interest in the Property, and their respective successors, legal representatives and assigns. All of the provisions of this Agreement will be binding upon all parties having or acquiring any right, title and interest in the Property or any part thereof, and will in all respects be regarded as covenants running with the land. The Property is subject to Protective Covenants dated October 30, 1997 and recorded on November 6, 1997 in the real property records of King County, Washington under recording number 9711060371, as amended by an Amendment to Protective Covenants dated June 25, 2004 and recorded on July 8, 2004 in the real property records of King County, Washington under recording number 20040708000011 (the "1997 Covenants"). Declarant is the successor in interest to the Declarant under the 1997 Covenants and is the Owner of more than 65% of the square footage of all Sites, as defined in the 1997 Covenants. In accordance with Section 8.02 of the 1997 Covenants, Declarant has the right to terminate, modify or amend the 1997 Covenants, as to the whole of the property covered by the 1997 Covenants, or any portion thereof. Therefore, Declarant covenants, agrees and declares that this Agreement supersedes the 1997 Covenants with respect to only the Property legally described on Exhibit A attached to this Agreement and, to the extent that any provisions of the 1997 Covenants conflict with or contradict the provisions of this Agreement with respect to that Property, the provisions of this Agreement will control. For purposes of clarity, and not intending to limit anything in the preceding sentence, the following provisions of the 1997 Covenants will not be applicable to the Property: Article III and Sections 4.04, 4.06, 4.07, 4.12, and 6.02. This Agreement will not supersede or replace the 1997 Covenants to the extent the 1997 Covenants apply to real property not described in Exhibit A attached to this Agreement. 3924/060 06/19/17 - 2 - cc&rs final tbarke\southcenter corp square ARTICLE I: DEFINITIONS 1.1 "Allocable Share" means that part of the Common Area Costs allocable to each Lot. The Allocable Share of each Lot will be determined by dividing the rentable area of the office and commercial space on the applicable Lot by the total rentable area of • all office and commercial space constituting the Park. Rentable area will be calculated in accordance with BOMA Standards. The current Allocable Shares of the Lots are set forth in Exhibit B attached. To the extent any Common Facilities are located in a building on a Lot, the Allocable Share of that Lot will be reduced by the rentable area of the space occupied by such Common Facilities. 1.2 "BOMA Standards" means the Standard Method for Measuring Floor Area in Office Buildings (ANSI/BOMA Z65.1-2010). 1.3 "Common Areas" means any of the following improvements or facilities located on any Lot in the Park: drainage swales and basins and other surface water management facilities and systems, any streams or open space areas, private roadways, driveways and drive aisles, the planting strips, sidewalks and traffic islands located in or adjacent to private roadways (including easement roadways and driveways),, and the planting strips, sidewalks and traffic islands adjacent to public roadways (to the extent that such strips, sidewalks and islands are not maintained at the expense of a public body), including without limitation all medians, boulevards, jogging and walking trails and picnic areas. The Common Areas will also include the Park signage, but not signage located on the Owner's Lots or individual buildings. The Common Areas will not include any of the parking areas located on an Owner's Lot. 1.4 "Common Area Costs" means all reasonable expenses paid or incurred in maintaining, operating, repairing, replacing and administering the Common Areas and the Common Facilities, and the personal property used in connection therewith, including without limitation, the costs of water, electricity, fuel; services; supplies; snow, garbage and refuse removal; landscape maintenance; service of independent contractors; the cost of liability insurance covering the Common Areas and the Common Facilities naming all Owners (and their Mortgagees) as additional insureds; taxes on personal property owned by the Operator and used primarily in connection with the operation or maintenance of the Common Areas and the Common Facilities; subsidies and other payments required by public bodies, including those for traffic signals and controls to the extent that they benefit all of the Owners; legal and accounting expenses and all other expenses or charges whether or not described above which, in accordance with generally accepted accounting and management practices, would be considered an expense of maintaining, operating, repairing, replacing and administering the Common Areas and the Common Facilities. Common Area Costs will include an administrative fee to the Operator in the amount of ten percent (10%) of all other Common Area Costs, excluding the administrative fee. 3924/060 06/19/17 - 3 - cc&rs final tbarke\southcenter corp square 1.5 "Common Facilities" means facilities located in• a building on a Lot and operated by Declarant or any successor Operator, which are available for the use of all tenants of the Park. The Common Facilities consist of (a) an exercise facility located in Suite 109 on the first floor of Building 8 of the Park at 635 Andover Park West in Tukwila, Washington, and (b) a conference room located in. Suite 105 on the first floor, of Building 8 of the Park at 635 Andover Park West in Tukwila, Washington. 1.6 "Development Standards" means those specifications set forth in Article VII of this Agreement. 1.7 "First Class Condition" means those standards upheld in maintenance, operation and/or condition of a well maintained suburban office/business complexes of similar age, design and composition to that of the Park located in south King County, Washington. 1.8 "Index" means the Consumer Price Index for All Urban Consumers (CPI- U) - Seattle -Tacoma -Bremerton (1982-1984 = 100), as published by the U.S. Department of Labor's Bureau of Labor Statistics (the "Bureau"). If the Bureau ceases to quote the Index or the Index is otherwise discontinued, the Index will be the replacement index of consumer prices published by the Bureau or if none a substitute index of consumer prices selected by the Operator. 1.9 "Lender" has the meaning given to it in Section 9.1. 1.10 "Lender's Deed of Trust" has the meaning given to it in Section 9.1. 1.11 "Lot" means and refers to any legally segmented and alienable portion of the Park, now existing or hereafter created through subdivision, short subdivision, boundary line adjustment, binding site plan approval or any other legal process for dividing land, with the exception of public streets and other publicly owned areas. 1.12 "Mortgage" means any recorded mortgage or deed of trust encumbering one or more of the Lots, including without limitation the Lender's Deed of Trust. 1.13 "Mortgagee" means and refers to the holder or beneficiary of any mortgage and will not be limited to institutional mortgagees. 1.14 "Occupant" means a lessee, tenant, or licensee of any Owner, or any person or entity other than Owner in lawful possession of a Lot or any portion thereof, with the permission of the Owner of such parcel. 3924/060 06/19/17 - 4 - cc&rs final tbarke\southcenter corp square 1.15 "Operator" means the Owner (or third party manager) responsible for the maintenance, repair, operation and management of the Common Areas under the terms of this Agreement. 1.16 "Owner" means and refers to the record owner. (whether one or more persons or entities) of a fee interest in any Lot, but excluding Mortgagees or other persons or entities having such interest merely as security for the performance of an obligation. Purchasers or assignees under recorded real estate contracts will be deemed Owners as against their respective sellers or assignors. Where a Lot is subject to a ground lease from the Owner of a Lot, with respect to such Lot, the term "Owner" means the ground lessee and not the ground lessor under the ground lease. ARTICLE II: MAINTENANCE OF LOTS, COMMON AREAS AND COMMON FACILITIES 2.1 Control of Common Areas and the Common Facilities. So long as Declarant owns any of the Lots, unless Declarant resigns or is removed as provided in this Agreement, Declarant will be the Operator and will have exclusive control over the Common Areas and the Common Facilities for maintenance purposes, responsibility for maintaining the Common Areas and the Common Facilities, and the right to contract with others and employ personnel at reasonably competitive market ,rates for such purposes. After Declarant no longer has any interest in any of the Lots, the Owners will select an Owner or third party property manager to act as Operator in accordance with the voting provisions of Section 2.5. 2.2 Common Area Standards. Except as otherwise provided in this Agreement, the Operator will operate and maintain or cause to be operated and maintained the Common Areas and the Common Facilities, in good order, condition and repair, reasonable wear and tear excepted, and in a First Class Condition. The Operator may delegate its duties under this Agreement to a property management company who performs property management functions with respect to portions of the Park owned by the Operator, provided as between the Owners and Operator, Operator will continue to remain principally responsible for the performance of the obligations and liabilities delegated to Operator under this Agreement. 2.3 Reimbursements. (a) Each Owner will pay to Operator its Allocable Share of all Common Area Costs in accordance with the terms of this Section 2.3. By December 1 of each calendar year, the Operator will provide to each Owner an estimated Common Area Costs budget for the Common Areas and the Common Facilities for the coming calendar year (the "Budget"). Except as provided below, the Budget will not require the approval of the 3924/060 06/19/17 - 5 - cc&rs final tbarkelsouthcenter corp square Owners. Each Owner will pay to the Operator, within ten (10) days after the beginning of each calendar month during the applicable calendar year, 1/12t of the amount estimated by Operator as such Owner's Allocable Share of the estimated Common Area Costs for such calendar year. Within one hundred fifty (150) days after the end of each calendar year, the Operator will provide to each other Owner a full and complete statement of the Common Area Costs incurred during the preceding calendar year, and if any Owner has paid more than its Allocable Share, the Operator will refund to such Owner the amount of the excess within thirty (30) days following receipt of such statement. Should any Owner have paid less than its Allocable Share during the preceding calendar year, then such Owner will pay to the Operator, within thirty (30) days following the receipt of such statement, the deficiency in its Allocable Share. (b) Notwithstanding any other provision in this Agreement, if the Budget for any calendar year provides for an increase in the estimated Common Area Costs for any calendar year over the actual Common Area Costs for the prior calendar year by an amount greater than the sum of (i) the percentage increase in the Index most recently published prior to December 1 in the then current calendar year over the Index most recently published prior to the preceding December 1, plus (ii) an additional five percentage points per annum, the Budget will be subject to the approval of Owners with at least sixty percent (60%) of the aggregate of all Allocable Shares. In addition, if the actual Common Area Costs exceed the estimated Common Area Costs in the annual Budget submitted to the Owners under Section 2.3(a) above by more than ten percent (10%), the amount of the increase must be approved by Owners with at least sixty percent (60%) of the aggregate of all Allocable Shares. (c) The Operator will maintain (or cause its property manager, if any, to maintain) books and records regarding Common Area Costs and the determination of the respective Allocable Share of each Owner for the applicable calendar year in accordance with a system of accounts and accounting practices consistently maintained on a year to year basis. The Operator will keep (or cause its property manager, as applicable, to keep), such books and records for a period of two (2) years after the end of each calendar year; provided, in the event of a dispute regarding the Allocable Share of any party, all such books and records will be maintained until resolution of the dispute. Each Owner will have the right, exercisable not more than once during any calendar year, and upon at least ten (10) days notice to the Operator, to review the books and records of the Operator (or its property manager) relevant to any statement or statements rendered by Operator under this section. If in an Owner's opinion, such review discloses an error in the Operator's (or its property manager's) books and records with regards to the calculation of the Allocable Share of such Owner, such Owner may cause an audit of the Operator's (or its property manager's) books and records which will be conducted by an independent certified public accountant designated by such Owner and reasonably acceptable to the Operator, who does not represent and is not employed by either the Owner or Operator (or their respective 3924/060 06/19/17 - 6 - cc&rs final tbarke'southcenter corp square property managers, if any) on any other matters. If any such audit discloses that an Owner overpaid its Allocable Share for any calendar year, the Operator will pay the Owner the amount of the overpayment within thirty (30) days after the results of the audit have been disclosed to all parties. If any such audit discloses an Owner underpaid its Allocable Share during any calendar year, such Owner will pay the Operator the amount of the underpayment within thirty (30) days after the results of the audit have been disclosed to both parties. All costs and expenses of the audit will be paid by the Owner who requests the audit; however, if any such audit discloses an error which results in the .overpayment by such Owner of its Allocable Share of Common Area Cost by ten percent (10%) or more, the Operator will promptly reimburse such Owner for the costs of the audit, which costs will not be charged as a Common Area Cost. Any audit or review of the Operator's books and records will occur at the principal office of the Operator (or its property manager, as applicable) in Seattle, Washington, or at such other location as the Operator (or its property manager) designates in the Seattle metropolitan area, and will occur during the normal business hours of the Operator (or its property manager). The results of any audit or review of the Operator's (or its property manager's) books and records and any information obtained from such review or audit will be kept confidential and any Owner conducting an audit or review under this section will require that its agents and representatives agree in writing to keep such information confidential. 2.4 Taxes. Except as otherwise provided in this Section 2.4, each Owner will pay before delinquency all real and personal property taxes, general and special assessments, including local improvement assessments, and other charges of every description, levied on or assessed against its Lot and on personal property located on or in its Lot. 2.5 Removal or Resignation of Operator. Any Owner acting as the Operator may be removed as the Operator upon written notice by an affirmative vote of Owners with greater than sixty percent (60%) of the Allocable Shares of all Owners. If an Operator is so removed the replacement Operator will be the Owner designated as the Operator by an affirmative vote of the Owners with greater than sixty percent (60%) of the Allocable Shares of all Owners. In the event that such vote does not result in any replacement Operator receiving 'a vote of more than sixty percent (60%) of the Allocable Shares of all Owners, then the Owner with the greatest number of Allocable Shares will serve as replacement Operator. Any such replacement Operator will be subject to all of the rights and obligations of the Operator under this Agreement accruing after the effective date of its appointment. Any Owner acting as the Operator will have the right, upon ninety (90) days prior written notice to the other Owners, to resign as. the Operator in which event the Owners will designate a replacement Operator by a vote of at least by an affirmative vote of the Owners with greater than sixty percent (60%) of the Allocable Shares of all Owners. In the event of the removal or resignation of an Operator., if the Owners have not within thirty (30) days thereafter designated an Owner as the Operator as provided above, 3924/060 06/19/17 - 7 - cc&rs final tbarke\southcenter corp square then unless otherwise agreed by the Owners, the Operator will be a property management company, with experience operating suburban office/business complexes in the Seattle, Washington metropolitan area, which will be selected and be approved by vote of the Owners, with the property management company receiving the votes with the greatest numbers of the Allocable Shares of all Owners becoming the Operator. In lieu of the 10% administrative fee, which shall not be paid, such property manager will be paid the standard market fee to act as the Operator and such fee will constitute a Common Area Cost. Notwithstanding any other provision of this Agreement, any Owner acting as the Operator under this Agreement will have no liability to the other Owner for acts undertaken in good faith in the exercise of reasonable business judgment, and in no event will any Owner acting as the Operator be liable to the other Owners other than for acts or omissions which constitute gross negligence or willful misconduct. 2.6 Rules and Regulations. The Operator will have the power to adopt (and from time to time amend) reasonable, nondiscriminatory rules and regulations concerning the Common Areas and the Common Facilities provided that such rules and regulations are not inconsistent with the provisions of this Agreement. Each Owner agrees to observe and comply with, and cause its Occupants to observe and comply with, such rules and regulations related to the Common Areas and the Common Facilities. 2.7 Maintenance and Operation of Lots. (a) Maintenance and Operation of Lots. Each Owner will maintain its Lot, buildings and improvements, including any signage present on the Lot, in First Class Condition and in compliance with all laws, rules, regulations, orders and ordinances of the relevant governmental authorities, as well as the provisions of this Agreement. Each Owner further agrees to maintain and repair, at its sole cost, in a clean, sightly and safe condition any exterior shipping/receiving dock area, any truck ramp or truck parking area and to store all trash and garbage in adequate containers maintained in a neat and clean condition and to be shielded in such a way that they will not be readily visible from any portion of the Common Areas or public streets. Each Owner will also arrange, at its sole cost, for regular removal of such trash and garbage from that Owner's Lot. The landscaping on all Lots will be neatly and attractively maintained, and will be cultivated and planted to the extent required to maintain an appearance in harmony with other Lots in the Project. Each Owner will maintain the landscaping on its Lot at its sole cost. The signage on each Lot will be stylistically consistent with signage throughout the Park. Each Owner shall maintain all parking areas, driveways, curbs and walkways located on its Lot in a clean and safe condition, including the paving and repairing or resurfacing of such areas when necessary with the type of material originally installed thereon or such substitute therefor as shall, in all respects, be equal or superior in quality, appearance and durability. In the event that an Owner fails to maintain its Lot, buildings, improvements, signage and landscaping in a First Class Condition, the Operator may have . the Lot, buildings., improvements and/or 3924/060 06/19/17 tbarke\southcenter corp square -8- cc&rs final landscaping maintained in a First Class Condition, subject to the notice provisions in subsection (b) below, and may charge the Lot Owner for the work in accordance with the provisions of Section 2.7(b). An Owner will not allow a condition to exist on its Lot which will materially and adversely affect any other Lot or any other Owner, and that is inconsistent with the terms of this Agreement. (b) Substitute Performance. Each Owner affirms its covenant to perform the maintenance and repair obligations stated in subsection (a) above. If the Operator reasonably believes that the conditions on any Lot do not meet the requirements of this Section 2.7 the Operator will provide the Owner with thirty (30) days prior written notice (except in the case of emergency where only reasonable notice prior to or after the emergency will be required and except after three such notices in any twelve month period where no further prior notice will be required) to perform the required maintenance and repair on such Owner's Lot. If the Owner does not perform such maintenance and repair within the 30-day period (except in case of emergency) or, to the extent the obligation cannot be fully performed within such 30-day period due to unavailability of materials or other causes beyond the Owner's reasonable control, fails to commence performance of the obligation within such 30-day period and/or fails thereafter to pursue performance diligently to completion, the Operator will have the right to perform such maintenance and repair on the Owner's Lot without the necessity of giving any further notice under this Agreement. In connection therewith, each Owner grants to the Operator and its agents, employees, representatives and contractors the right to enter upon such Owner's Lot for the purposes of performing such maintenance and repair. The non -performing Owner will pay all reasonable costs and expenses incurred by the Operator in connection with performing the maintenance and repair within ten (10) days after receipt of any statement form the Operator. If the Owner fails to timely reimburse the Operator for all reasonable costs and expenses incurred by the Operator in the performance of such work, the costs and expenses, together with interest thereon at determined in accordance with Section 10.3 of this Agreement, from the date due until paid in full, and together with such costs and reasonable attorneys' fees as may be incurred in seeking to collect such amounts, will be not only the personal obligation of such Owner, but will also be a charge on the land and will be a continuing lien upon the Owner's Lot, provided that such lien will be subordinate and inferior to (a) the lien of all taxes, bonds, assessments and other levies which by law would be superior thereto, and (b) the lien of any Mortgage against the Owner's Lot recorded prior to the recording of the lien. Such lien will be recorded and foreclosed in accordance with Section 10.3 hereof. ARTICLE III: INDEMNIFICATION AND INSURANCE 3.1 Indemnity - Buildings. Each Owner ("Indemnifying Party") will indemnify, defend and hold harmless each other Owner and their Occupants (each an "Indemnified Party") from and against all claims and all costs, expenses and liabilities 3924/060 06/19/17 - 9 - cc&rs final tbarke\southcenter corp square (including reasonable attorneys' fees and costs) incurred in connection with all claims, including any actions or proceedings brought thereon, arising from or as a result of the death of or any action, injury, loss or damage to any person or to the property of any person as will occur within the portion of the Park owned by the Indemnifying Party, except for claims caused by the negligence or willful misconduct of an Indemnified Party, its licensees, agents, employees and contractors. Whenever a provision for indemnity is set forth in this Agreement, in the event of the concurrent negligence of any party bound by this Agreement, which concurrent negligence results in injury or damage to person or property and relates to the construction, alteration, repair, addition to, subtraction from, improvement to or maintenance of the Park, the obligation to indemnify (including payment of the costs, expenses and attorneys' fees incurred by the party being indemnified in connection with the claim, action or proceeding brought with respect to such injury or damage) will be limited to the extent of the negligence of the party required to indemnify. The obligations of the Indemnifying Party under any indemnity provided for in this Agreement will not be limited by, and all persons now or hereafter bound by this Agreement waive, any worker's compensation provision (including but not limited to RCW Title 51) to the contrary or so limiting. EACH PARTY NOW OR HEREAFTER BOUND BY THIS AGREEMENT ACKNOWLEDGES AND AGREES THE INDEMNIFICATION AND WAIVER PROVISIONS SET FORTH IN THIS AGREEMENT WERE SPECIFICALLY NEGOTIATED AND AGREED TO BY THE PARTIES. 3.2 Property Insurance. Each Owner will carry or cause to be carried fire and extended coverage insurance in an amount equal to at least ninety percent (90%) of the replacement cost (exclusive of the cost of excavation, foundations and footings) of the improvements (including the Common Areas and the Common Facilities) located on its Lot, insuring against loss by fire and such other risks generally covered by extended coverage insurance. Such insurance will be carried with financially responsible companies licensed to do business in the State of Washington. Each Owner will use reasonable efforts to cause any Mortgagee of its Lot to agree to allow insurance proceeds to be used to pay for the cost of repairing and restoring Common Areas and the Common Facilities located on the Lot as provided for in this Agreement. During construction of improvements on its Lot, the insurance required under this Agreement must be in "builder's all-risk" form. 3.3 Liability Insurance. Each Owner will at all times during the term of this Agreement, maintain or cause to be maintained in full force and effect, commercial general liability insurance covering its Lot or Lots. Such insurance will (i) include coverage for any action resulting in personal injury to or death of any person and consequential damages arising therefrom, (ii) be in an amount of not less than $2,000,000 per occurrence, (iii) be issued by a fmancially responsible insurance company or companies licensed to do business in the State of Washington, and (iv) at the request of any other Owner expressly 3924/060 06/19/17 - 10 - cc&rs final tbarke\southcenter corp square name such other Owner as an additional insured. Unless otherwise agreed in writing by the Owners, the Operator will purchase and maintain for the benefit of all Owners, commercial general liability insurance covering the Common Areas and the Common Facilities in the amounts set forth above. The reasonable cost of any such insurance obtained by the Operator will be treated as a Common Area Cost, and any insurance policy so obtained by Operator will name all Owners (and their Mortgagees) as additional insureds. Each Owner (including Operator) will famish to any other Owner requesting the same evidence that the insurance required of it under this Agreement is in place. 3.4 Waiver of Subrogation. No Owner will be liable to any other Owner or to any insurance company (by way of subrogation or otherwise) insuring another Owner for any loss or damage to any building, structure or tangible personal property of the other occurring in or about the Park, even though such loss or damage might have been occasioned by the negligence of such party, its agents or employees, if such loss or damage is covered by insurance benefiting the party suffering such loss or damage or was required to be covered by insurance under terms of this Agreement. Each Owner will cause each insurance policy obtained by it to contain the waiver of subrogation clause. ARTICLE IV: RESTORATION 4.1 Restoration of Common Areas and the Common Facilities. In the event of any damage or destruction to, or taking by any governmental authority of all or any part of the Common Areas or the Common Facilities, the Operator will restore, repair or rebuild such Common Areas or the Common Facilities with reasonable diligence. Such restoration and repairs must be in accordance with the requirements of this Article 4. To the extent insurance or condemnation proceeds are insufficient to pay for the cost of such work, then all such excess costs and expenses of restoration and repair will be paid by the Owners in accordance with their respective Allocable Shares within thirty (30) days after written notice from the Operator. 4.2 Insurance and Condemnation Proceeds. Each Owner covenants that, unless the terms of the Mortgage on its Lot directs otherwise, all insurance and condemnation proceeds, if any, payable on the account of any damage or destruction to or taking of the Common Areas or the Common Facilities will first be made available to the Operator for the repair and restoration of any such damaged Common Areas or Common Facilities. Subject to the terms of the preceding sentence, any award for damages, whether obtained by agreement prior to or during the time of any court action or by judgment, verdict or order, or by agreement after any such action, resulting from a taking by exercise of the right of eminent domain of all or any portion of an Owner's Lot will belong to the Owner of any Lot so affected. Each Owner will use reasonable efforts to cause any Mortgagee of its Lot to agree to allow insurance and condemnation proceeds to be used to pay for the 3924/060 06/19/17 - 11 - cc&rs final tbarke\southcenter corp square cost of repairing and restoring Common Areas or the Common Facilities located on the Lot as provided for in this Agreement. 4.3 Licenses for Reconstruction. From time to time, an Owner may require and is granted a temporary license to use portions of the Common Areas for purposes of: (a) performing maintenance upon and making repairs to and/or making construction alterations, additions and improvements, or raising and replacing the whole or any part of the improvements located on its Lot including the Common Areas located thereon, and (b) obtaining access, ingress and egress to and from the improvements located on its Lot, including the Common Areas located thereon, as the case may be, to carry on such maintenance, repair and construction activities. With respect to all purposes for which a temporary license is needed, within a reasonable time prior to commencement of any such maintenance, repair or construction activities, the Owner desiring to undertake the same will submit to the other Owner whose Lot is affected, for its approval (which approval will not be unreasonably withheld or delayed), a plot plan of the Park on which will be delineated those portions of the Common Areas with respect to which such Owner reasonably requires a temporary license in connection with such repair, maintenance and construction activities, together with a description of and a schedule of the work, and the other Owner will, within ten (10) business days thereafter, notify the requesting Owner whether it approves or disapproves of such use. A failure to notify the requesting Owner in writing of the approval or disapproval thereof within the foregoing ten (10) business day period will constitute approval. If an Owner disapproves of any such use proposed by the other Owner, it must so notify the requesting Owner in writing and then the Owners will promptly meet and, acting in good faith, use their best efforts to resolve their differences. At all times during any Owners' use of the portion of the Common Areas as permitted by this section, such Owner will comply with all applicable requirements of this Agreement and upon cessation of such use will promptly restore the portions of the Common Areas so used to the condition in which the same were prior to the commencement of such use, including the clearing from such area of all loose dirt, debris, equipment and construction materials. Such Owner will also restore, at its cost and expense, any portions of the Park which may be damaged by such activities, promptly upon the occurrence of any such damage, and will at all times during the period of any such activities keep all portions of the Park, except that portion of those improvements upon which such activities are being performed, and except the portions of the Common Areas being utilized by such Owner under this section, free from and unobstructed by any loose dirt, debris, equipment or materials related to such activities. 4.4 Clearing. In the event of damage or destruction to any improvements to a Lot, if the Owner of such Lot elects not to repair, restore or rebuild such improvements that have been damaged or destroyed, then such Owner will demolish such improvements or the part thereof so damaged or destroyed, and all areas not restored to their original 3924/060 06/19/17 - 12 - cc&rs final tbarke\southcenter corp square condition will be leveled and cleared. All leveled and cleared areas will be kept weed free and clean at the expense of the Owner until such time as buildings are constructed thereon. ARTICLE V: RESTRICTIVE COVENANTS; USES 5.1 Prohibited Uses. (a) The following operations and uses will not be permitted in the Park: (a) trailer courts or recreation vehicle campground; (b) heavy industrial uses, junkyards, wrecking yards or recycling facilities, including, without limitation, battery and commercial solvent recycling or reclamation facilities; (c) mining, drilling for, or removing oil, gas or other hydrocarbon substances; (d) refining of petroleum, or of its products; (e) commercial excavation of building or construction materials, provided that this prohibition will not be construed to prohibit any excavation necessary in the course of approved construction on a Lot; (f) a storage, treatment or disposal facility for "Hazardous Substances" (defined below), provided that this prohibition will not be construed to prohibit storage or treatment of Hazardous Substances that are normally used in a general business office so long as .such storage and treatment is in compliance with Section 5.3 below; (g) dumping, disposal, incineration, or reduction of garbage, sewage, offal, dead animals, Hazardous Substances or other refuse; (h) smelting of iron, tin, zinc or any other ore or ores; (i) automobile, go-cart, motorcycle or quarter -midget race tracks or other vehicle endurance racetracks; (j) wood treating facilities; (k) pesticide formulators; (1) asphalt production; (m) single family or multi -family residential housing; (n) massage parlor, or adult bookstore, video store or arcade or entertainment facility selling, distributing or displaying pornographic materials, or (o) the use or operation of any facility selling, growing, distributing or handling marijuana or cannabis based substances. Notwithstanding the foregoing, each Owner and its Occupants shall be permitted to park commercial vehicles upon such Owner's Lot in connection with the use, operation and occupancy of the Lot. (b) No Owner will use or permit the use of its Lot, or any portion thereof, whether by an Occupant or otherwise: (i) for the conduct of any offensive, noisy or dangerous trade, business, manufacturing activity or occupation inconsistent with the operation of a of a well maintained suburban office/business complex in south King County; (ii) for the maintenance of any legal nuisance or the conduct of any activity which violates public policy, (iii) for any activity which physically and substantially interferes with the business of any other Occupant of the Project except as otherwise permitted under this Agreement, (iv) in violation of any law, ordinance, rule or regulation of any government authority having jurisdiction over the Project or any portion thereof, (v) use of its Lot not compatible with the operation of a of a well maintained suburban office/business complex in south King County, Washington and related parking facilities, including, without limitation, Occupant advertising media which can be heard or 3924/060 06/19/17 - 13 - cc&rs final tbarke\southcenter corp square experienced from the exterior of any Building or other improvement from which it emanates, such as search lights, loud speakers, phonographs, radios or televisions. 5.2 Liens and Encumbrances. Each Owner will keep the Common Area free and clear of, and will indemnify, defend and hold the other Owners harmless from, any and all liens and encumbrances arising or growing out of such Owner's acts or omissions, other than a Mortgage on the Owner's own Lot. If any lien is so filed against the Common Areas, the Owner responsible therefor will cause the same to be fully discharged and released of record within thirty (30) days after the filing of the same. Each Owner will have the right to contest in good faith by appropriate legal or administrative proceeding the validity of any prohibited lien, encumbrance or charge so long as (i) the Owner immediately commences its contest of such lien, encumbrance or charge, and continuously pursues the contest in good faith and with due diligence; (ii) foreclosure of the lien, encumbrance or charge is stayed pending the resolution of the contest; and (iii) the Owner pays any judgment rendered for the lien claimant or other third party within ten (10) days after the entry of the judgment. 5.3 Hazardous Substances. No Owner will keep nor permit any of its Occupants, employees, invitees, or contractors or agents to keep any substances designated as, or containing components now or hereafter designated as, hazardous, dangerous, toxic or harmful and/or subject to regulation under any federal, state or local law, regulation or ordinance ("Hazardous Substances") on or about its Lot. Notwithstanding the preceding sentence, an Owner may use, store and dispose of, or may permit others to use, store and dispose of, in, on and from its Lot, materials and supplies otherwise constituting Hazardous Substances that are normally used in the operation or maintenance of commercial real estate or generally used in a general business and/or office, provided such materials and supplies are used, handled, stored and disposed of in accordance with all applicable governmental rules, regulations, laws and requirements, and in accordance with all applicable manufacturers' or suppliers' recommendations. As between the Owners (but not for the purpose of establishing the liability of any Owner to a third party), each Owner will be fully and completely liable to the other Owners for any and all cleanup costs and expenses and any and all other charges, expenses, fees, fines, penalties (both civil and criminal) and costs imposed with respect to the use, disposal, transportation, generation and/or sale of Hazardous Substances, in or about the responsible Owner's Lot, and each Owner will indemnify, defend and hold the other Owners and the Occupants of the other Owners' Lots, harmless from any and all of the costs, fees, penalties, charges and expenses (including reasonable attorneys' fees and costs) assessed against or incurred by such other Owners or their Occupants as a result of the use, disposal, transportation, generation and/or sale of Hazardous Substances on or from the indemnifying Owner's Lot. 5.4 Notification Regarding Hazardous Substance From Governmental Authority. Any Owner that receives a notice, claim, lawsuit, or other correspondence from 3924/060 06/19/17 - 14 - cc&rs final tbarke\southcenter corp square any federal, state or other governmental authority relating to the threat, presence or investigation of any "hazardous material" or "hazardous substance" or "pollutant" or "contaminant" on its Lot or any adjacent area, will provide copies of same to all Owners within ten (10) days of receipt. 5.5 Condition of Property. Each Owner will be obligated to maintain its Lot at its own expense in a First Class Condition. ARTICLE VI: CONSTRUCTION OF IMPROVEMENTS 6.1 Required Approvals of Plans Required. (a) All buildings and improvements now or hereafter located on any Lot will be subject to the Development Standards and will be built and maintained in compliance with all applicable laws. In addition, so long as Declarant owns any of the Lots, no improvements will be erected or placed on any Lot and no exterior alterations will be made to existing improvements on a Lot or improvements hereafter erected or placed on a Lot until descriptive plans and specifications have been submitted to and approved in writing by Declarant, which such approval shall not be unreasonably withheld, conditioned or delayed. Approval required by this subsection will apply to and include signs. The descriptive plans and specifications will be submitted in duplicate over the authorized signature of the Owner or Occupant, or both, of the Lot or the authorized agent thereof, to Declarant, as required by this Section 6.1. The plans and specifications must be in a reasonably informative and detailed form, but will in any event include the following to the extent applicable to the improvements: (i) a site development plan of the Lot showing the nature, grading, scheme, kind, shape, composition and location of all structures with respect to the particular Lot (including proposed front, rear and side setback lines); (ii) a landscaping plan for the particular Lot; (iii) a plan for the location of signs and lighting; (iv) general building elevations and plans showing dimensions, materials and the external color scheme; and (v) site drainage plan showing water flows and collection and containment facilities, if any. (b) Material changes (whether at the initiative of the Owner or Occupant or to comply with applicable laws) in plans and specifications previously approved by Declarant must be similarly submitted to and approved by Declarant, as required by this Section 6.1. For purposes of the foregoing, a "material change" means any change that requires the approval of the local governmental jurisdiction or a change in exterior appearance, color or finishes. (c) In addition to the review process set forth in Section 6.1(a), exterior alterations to any Lot must meet the following: (i) no Owner without the consent of the 3924/060 06/19/17 - 15 - cc&rs final tbarke\southcenter corp square other Owners may change any of the Common Areas located on its Lot, and (ii) all exterior alterations must be in conformance with the Development Standards. 6.2 Future Development. By acquiring its Lot subject to the terms of this Agreement, each future Owner agrees it will not oppose any future development by any other Owner on a Lot so long as such development is done in accordance with the Development Standards. 6.3 Basis for Approval. Approval of plans and specifications submitted to Declarant under Section 6.1 above will be based upon, among other things, conformity and harmony of external design and placement with neighboring structures and streets, effect of location and use of proposed improvements -upon adjacent Lots, and adequacy of screening of mechanical, air conditioning or other rooftop or exterior installations. Disapproval must be specific. Upon disapproval of plans or specifications (or changes thereto) submitted to Declarant, neither the Owner nor the Occupant requesting the approval will take any further action regarding the proposed improvement or alterations to improvements until revising, resubmitting and obtaining the approval of such revised plans and specifications by Declarant. 6.4 Result of Inaction. If Declarant fails to either approve or disapprove plans and specifications submitted to it within fifteen (15) days after the same have been received, the submission will be deemed approved. Notwithstanding any deemed approval of plans and specifications submitted, the Owner or Occupant seeking the approval must comply with the provisions of this Agreement in connection with making any planned Improvements to its Lot. Declarant will notify the Owner and/or Occupant seeking its approval in writing upon receipt of all required plans and specifications, and the aforementioned fifteen (15) day period will commence on the date all required plans and specifications and other information are received by Declarant. Unless within seven (7) days after receiving a submission Declarant notifies in writing the Owner or Occupant requesting its approval of the submission that the plans and specifications and other information are incomplete, the submission will be deemed complete for purposes of this Section 6.4. 6.5 Proceeding with Work. Upon receipt of approval of the descriptive plans and specifications from Declarant, the Owner or Occupant, or both, to whom the same is given, will, as soon as practicable, satisfy any and all conditions of such approval and will diligently proceed with the commencement and completion of all approved excavation, construction, refinishing and alterations. In all cases, work will commence within one (1) year from the date of last approval, and if work is not so commenced approval will be deemed revoked unless Declarant, underwritten request made and received prior to the expiration of the one (1) year period, extends the period of time within which work must be commenced. Any and all excavation, construction, refinishing and alteration work will 3924/060 06/19/17 - 16 - cc&rs final tbarke\southcenter corp square proceed only if in conformity with all applicable laws and under valid permits from all necessary governmental authorities. 6.6 Completion of Work. Any improvements commenced under this Agreement will be completed in accordance with approved descriptive plans and specifications within two (2) years from commencement of construction of that Improvement, except that such period may be extended for so long as such completion is delayed due to strike, fire, national emergency, natural disaster or other cause (other than financial) beyond the control of the Owner or Occupant. Declarant may, upon written request received prior to the expiration of the two (2) year period, extend the period of time within which work must be completed. Failure to comply with this Section 6.6 will constitute a breach of this Agreement and subject the party in breach to the enforcement procedures set forth in this Agreement. 6.7 Construction Without Approval. If any improvement or sign will be erected, altered, placed or maintained upon any Lot, or any new use commenced upon any Lot, other than in accordance with the approval by Declarant under the provisions of this Article 6, such alteration, erection, placement, maintenance or use will be deemed to have been undertaken in violation of this Agreement, and upon written notice from Declarant any such improvement so altered, erected, placed, maintained or used upon any Lot in violation of this Agreement will be removed or altered so as to conform to this Agreement. Should such removal, alteration or cessation or amendment of use not be accomplished within thirty (30) days after receipt of such notice, and then the party in breach of this Agreement will be subject to the enforcement procedures set forth in this Agreement. 6.8 Enforcement. Declarant's approval and enforcement of the terms and conditions under this Section and the entire Agreement shall be performed in a nondiscriminatory manner. ARTICLE VII: DEVELOPMENT STANDARDS 7.1 Total Building Area. The total area of all buildings, including any dock areas, within any Lot will not exceed the total area allowed by applicable zoning laws or any recorded binding site plan or map affecting the Park. 7.2 Underground Utilities. Except for easements or utilities existing as of the date of this Agreement, and hoses and the like which are reasonably necessary in connection with normal lawn maintenance, and except as otherwise required by any utility provider, no water pipe, sewer pipe, gas pipe, drainage pipe, telephone, power or television cable, or similar transmission line on the Property shall be installed or maintained above the surface of the ground; provided, however, an Owner shall be permitted to install 3924/060 06/19/17 - 17 - cc&rs final tbarke\southcenter corp square underground utilities within its Lot provided that is obtains all necessary permits and complies with the terms and conditions set forth in Section 7.3 below. 7.3 Utility Lines and Rooftop Equipment. 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 or radio signals, will be constructed, placed or maintained any where in or upon any portion of a Lot other than within buildings or structures or on rooftops, unless the same will be contained in conduits or cables constructed, placed or maintained underground or concealed in or under buildings or other structures. 7.4 Mechanical Equipment. All mechanical equipment, storage tanks, generators, air conditioning equipment and similar items will be screened with landscaping or attractive architectural features integrated into the structure itself which screening will include both acoustic barriers and visual screening appropriate to reduce noise and unsightliness of equipment. So long as Declarant owns any Lot., Declarant must approve all screening. ARTICLE VIII: EASEMENTS 8.1 Ingress and Egress. Subject to the terms and conditions set forth in Section 8.2 below, Declarant, as grantor, grants to all present and future Owners, as grantees, for their benefit and the benefit of their respective tenants, contractors, employees, agents, customers, licensees and invitees, and the subtenants, contractors, employees, agents, customers, licensees of such tenants (collectively the "Benefited Parties"), a nonexclusive easement for ingress and egress from the public streets and roadways adjacent to the Park for vehicular and pedestrian traffic over and across the driveways, drive aisles, and private roadways located on the grantor's Lot. Nothing in this Agreement is intended to create any reciprocal parking easements among the Lots with respect to the use of the parking areas now or hereafter located on the Lots. 8.2 No Barriers, Etc. Except as set forth in this Section 8.2, no walls, fences or barriers of any kind will be constructed or maintained on any Lot or in the Common Areas or any portion thereof by any Owner. Subject to obtaining the necessary permits from the applicable governing agencies, however, the Owner or Occupant of Lot 2 shall be permitted to install security gates restricting access to or through the west side of its Lot. The type and location of such gates shall be approved by the applicable governing agencies. 3924/060 06/19/17 tbarkelsouthcenter Corp square - 18 - cc&rs final 8.3 Utility Lines and Facilities. (a) Declarant, as grantor, grants to all present and future Owners, as grantees, a nonexclusive easement under, through and across the Utility Easement Areas (as defined below) located on the Lots for the installation, operation, maintenance, repair and replacement of water drainage systems or structures, water mains, sewers, water sprinkler system lines, telephones, gas mains and other public or private utilities. All such systems, structures, mains, sewers, lines and other facilities must be installed and maintained below the ground level or surface of such easement except for ground mounted electrical transformers and such other facilities as are required to be above ground by the utility providing such service (including temporary service required during the construction, maintenance, repair, replacement, alteration or expansion of any buildings or improvements located in the Park). The installation, operation, maintenance, repair and replacement of such facilities will not unreasonably interfere with the use of the improved Utility Easement Areas or with the normal operation of any business conducted on a Lot. The grantee will bear all costs related to the installation, operation, maintenance, repair and replacement of such easement facilities, will repair to the original specifications and damage to the Utility Easement Areas on a Lot resulting from such use and will provide as -built plans for all such facilities to the Owners of all Lots upon which lines of facilities are located within thirty (30) days after the completion of construction of the same. No Owner will commence any work on the Utility Easement Areas on any Lot without first, obtaining the approval of the Owner of such Lot of plans and specifications for the proposed installations and facilities, which approval will not be unreasonably withheld, delayed or conditioned. For the purposes of this Agreement, the "Utility Easement Areas" will be those areas within the Park on which no building is located at the time the applicable utility is being installed. (b) At any time and from time to time the Owner of a Lot will have the right to relocate on its Lot any line or facility installed under Section 8.3(a) above provided that any such relocation location will (i) be performed only after sixty (60) days advance written notice of the Owner's intention to undertake the relocation has been given to the Owner of each Lot served by the utility line or facility, (ii) not unreasonably interfere with or diminish utility service to the Lot served by the utility line or facility, (iii) not reduce or unreasonably impair the usefulness or function of the utility line or facility, (iv) be performed without cost or expense to any other Owner or Occupant of any Lot served by the utility line or facility, and (v) provide for the original and relocated area to be restored to the original specifications. The Owner performing such relocation will provide as -built plans for such relocated utility lines or facilities to the Owners of all Lots served by such utility lines and facilities within thirty (30) days after the completion of the relocation. 3924/060 06/19/17 - 19 - cc&rs final tbarke\southcenter corp square (c) Any work proposed to be undertaken by an Owner under this Section 8.3 must be scheduled in advance with any other Owners who will be affected by the work. 8.4 Conduits. Declarant, as grantor, grants to all present and future Owners and their tenants, as grantees, a nonexclusive easement under, through and across the Lots for the operation, maintenance, repair and replacement of the existing telecommunications and fiber optic cable conduits presently located in the Park. The operation, maintenance, repair and replacement of such conduits will not unreasonably interfere with the use of the normal operation of any business conducted on a Lot. 8.5 Intentionally Deleted. 8.6 Common Facilities. Declarant, as grantor, grants to all present and future Owners and their tenants, as grantees, a nonexclusive easement over the Property for the purpose of using the Common Areas and the Common Facilities located on the Lots. Access to the Common Facilities will be subject to such reasonable security systems and procedures as may be in effect from time to time. 8.7 Telecommunications Demarcation Facility. Declarant, as grantor, grants to all present and future Owners and their tenants, as grantees, a nonexclusive easement for access to the main telecommunications demarcation facility for the Park located in the building currently known as Building 1 in Southcenter Corporate Square in Tukwila, Washington. In the event of the damage or destruction of such Building, if the Owner of such building elects to repair and restore such building, it also will repair and restore the main telecommunications demarcation facility to its condition immediately prior to the damage or destruction. Access to the telecommunications switching facility will be subject to such reasonable policies and procedures as the Owner of such building may implement from time to time. 8.8 Termination of Easements. Any easement granted under this Article 8 may be terminated by execution of an agreement so terminating the same, by the Owners of the Lots benefited thereby; provided, however, that the ingress and egress and utility easements may not be terminated without the prior written consent of the City of Tukwila. ARTICLE IX: MORTGAGEES 9.1 Consent of Current Mortgagee. Wells Fargo Bank, National Association ("Lender") is the present beneficiary of a Deed of Trust encumbering the Property, recorded in the real property records of King County, Washington (the "Lender's Deed of Trust"). By executing this Agreement in the space below, Lender consents to this Agreement and agrees the Lender's Deed of Trust will be subordinate to this Agreement, 3924/060 06/19/17 - 20 - cc&rs final tbarke\southcenter corp square except as provided in Sections 9.1, 9.2 or 9.4 of this Agreement or as otherwise provided in this Agreement. This Agreement will not in any way amend, modify, waive or otherwise affect the Lender's Deed of Trust or related loan documents, nor Lender's rights thereunder. This Agreement may not be amended, including without limitation any termination of an easement under Section 8.6, without the prior written consent of all Mortgagees. 9.2 Breach will not Defeat Mortgage. Notwithstanding the subordination of any Mortgage to this Agreement or that a lien arising under this Agreement may be prior to the lien of a Mortgage, neither the breach of any of the terms, conditions, covenants or restrictions of this Agreement, nor the Foreclosure of or pursuit of any remedy with respect to any lien arising under this Agreement, will affect, defeat or render invalid the lien or terms of any Mortgage, but (except as otherwise provided in this Agreement) such term, condition, covenant or restriction will be binding upon and effective upon any person (including any Mortgagee) who acquires title to such property affected by the lien of a Mortgage or any portion thereof, whether by foreclosure, trustee's sale, suit or by transfer in lieu of foreclosure or other method (such process being referred to as "Foreclosure"). 9.3 Mortgagee Notice. The Mortgagee under any Mortgage affecting a Lot will be entitled to receive notice of any default under this Agreement by the Owner whose Lot is encumbered by such Mortgage, provided that such Mortgagee delivers a copy of a notice in the form hereinafter contained to each Owner. The form of such notice will be substantially as follows: The undersigned, whose address is certifies that it is a Mortgagee, as defined in that certain Common Area Cost Sharing Agreement and Covenants, Conditions and Restrictions for Southcenter Corporate Square, of Lot _ of Southcenter Corporate Square, a legal description attached hereto as Exhibit A and made a part hereof. If any notice of default will be given to the Owner of such Lot, a copy will be delivered to the undersigned who will have all rights of such Owner to cure such default. Failure to deliver a copy of such notice to the undersigned will in no way affect the validity of the notice of default as it respects such Owner, but will make the same invalid as it respects the interest of the undersigned and its Mortgage upon such Lot. So long as the Lender's Deed of Trust encumbers any Lot, provided that Declarant or Lender has provided each party with Lender's notice address, Lender will be entitled to receive notice of any default under this Agreement by the party sending such notice. Any notice given to a Mortgagee (including Lender) will be given in the same manner as provided in Section 11.5 below. Each Owner agrees that if an Owner has failed to cure such default within the time provided for in this Agreement, then Mortgagee will have the 3924/060 06/19/17 - 21 - cc&rs final tbarke\southcenter corp square right, but not the obligation, to cure such default for a reasonable time (but in no event less than 30 days), or if such default cannot be cured within such reasonable time, then such additional time as may be necessary to cure such default, provided Mortgagee has commenced and is diligently pursuing the remedies necessary to cure such default, in which event the rights of the Owner will not be foreclosed, forfeited or adversely affected by virtue of the pursuit of any remedy arising under this Agreement during such reasonable time or while such remedies are being so diligently pursued. Nothing in this Section will impose any duty on any Mortgagee to cure any default. 9.4 Mortgagee's Title. A Mortgagee, its designee or nominee, or other person that acquires title to such Lot (other than the Owner) through Foreclosure will acquire title to the encumbered Lot free and clear of any lien or claim authorized by or arising out of the provisions of this Agreement, insofar as such lien secures, or such claim is for, the payment of any assessment, charge or other amount relating to events prior to the fmal conclusion of any such Foreclosure proceeding, including the expiration date of any period of redemption, but subject to all the terms, covenants, conditions, restrictions of this Agreement. After any such Foreclosure, any unpaid assessments, charge or other amount relating to events prior to the fmal conclusion of such Foreclosure will continue to exist and remain a personal obligation of the former Owner against whose Lot the same was levied. Any liens authorized, provided for in, or arising out of the provisions of this Agreement will be . subject and subordinate to the lien of any Mortgage upon a Lot (provided the Mortgagee is a third party and the Mortgage was given to secure a good faith obligation of the Owner whose Lot is encumbered). The sale or transfer of any Lot or any interest therein will not affect the liens provided for in this Agreement except as otherwise specifically provided for in this Agreement, except that any Foreclosure of :Lender's Deed of Trust will foreclose and discharge all such liens arising under this Agreement against all Lots encumbered by the Lender's Deed of Trust for any assessment, charge or other amount relating to events prior the final conclusion of such Foreclosure, including the expiration date of any period of redemption. In the event of a conflict between this Agreement and a Mortgage, the Mortgage will control. ARTICLE X: ENFORCEMENT 10.1 Right to Enforce. Subject to Section 10.2 below, any Owner will have the right to enforce, by any appropriate proceeding at law or in equity, all covenants, conditions, restrictions, reservations, liens and charges now or hereafter imposed by the provisions of this Agreement. Failure or forbearance by any person or entity so entitled to enforce the provisions of this Agreement to pursue enforcement will in no event be deemed a waiver of the right to do so thereafter. 10.2 Binding Arbitration. Except as provided below in this Section 10.2, all disputes among the Owners relating to this Agreement will be settled by binding 3924/060 06/19/17 - 22 - cc&rs final tbarke\southcenter corp square arbitration if requested by Declarant or any other party to the dispute. Unless otherwise agreed in writing by the parties to the dispute, the arbitration proceeding will be held in Washington State in accordance with the commercial arbitration rules of the American Arbitration Association, and the arbitration will be convened in Seattle, Washington. Unless otherwise agreed in writing by the parties there will be one arbitrator who will decide whether an issue is arbitrable and whether any claim is barred by a statute of limitation. Judgment on any arbitration award may be entered in any court having jurisdiction. Commencement of a lawsuit will not constitute a waiver of the right of any party to request arbitration if the lawsuit is contested. The arbitrator will be paid by both parties, provided, the arbitrator will have the power to award the prevailing party with its costs and expenses (including reasonable attorneys' fees and costs and reasonable travel and other related costs and expenses). Notwithstanding any of the foregoing, any party to the dispute will have the right, during and after the commencement of any arbitration proceeding, to exercise any of the following remedies, in any order or concurrently: (i) self-help remedies provided for in this Agreement; (ii) judicial foreclosure of any lien provided for in this Agreement; and (iii) equitable remedies such as seeking an injunction of any actual or alleged violation of any of the provisions of this Agreement or seeking specific performance of any provision of this Agreement. The exercise of any such remedies will not waive the parties' right to later request arbitration. 10.3 Effect of Non -Payment. If any payment of any assessment or charge due from an Owner under this Agreement is not made in full within thirty (30) days after it was first due and payable, the unpaid amounts will constitute a lien attaching as of the end of such thirty (30) day period in favor of the Operator against the Lot owned by such Owner and will bear interest from such due date at a rate not to exceed the greater of (a) twelve percent (12%) per annum, or (b) the highest rate then permitted by law. By acceptance of a deed to a Lot, execution of a real estate contract for the purchase of a Lot, or any other means of acquisition of an ownership interest, and whether or not it will be so expressed in any such deed or other instrument, each Owner will be deemed to grant thereby to the Operator, the right and power to bring all actions against such Owner for the collection of such assessments as a debt, together with reasonable attorneys' fees related thereto and to enforce the liens created by this Agreement by foreclosure of the continuing liens in the same form of action as is then provided for the foreclosure of a Mortgage on real property under applicable law; provided that in any Foreclosure of a lien created by or pursuit of any remedy arising under this Agreement, no Occupant of any portion of the Park will be named as a party to the action, nor will any other action be taken which would terminate any such occupancy without the prior written consent of all affected Mortgagees. 10.4 Remedies Cumulative. Except as otherwise provided in Section 10.2 above, the remedies provided for in this Agreement will not be exclusive and are in addition to all other remedies available at law or in equity. The obligations of the Owners and Occupants under this Agreement are unique and any remedy at law (such as damages) is inadequate. 3924/060 06/19/17 - 23 - cc&rs final tbarke\southcenter corp square In the event of a breach or violation or an attempted breach or violation of this Agreement, except as otherwise provided in Section 10.2 above, the party seeking to enforce this Agreement will be entitled to an injunction or specific performance, in addition to any other rights, remedies and awards available under this Agreement;at law or in equity. ARTICLE XI: GENERAL PROVISIONS 11.1 Non -Waiver. No waiver of any breach of this Agreement will constitute a waiver of any other breach, whether of the same or any other covenant, condition or restriction. 11.2 Attorneys' Fees. In the event of a suit, arbitration or other action or legal proceeding to enforce any provision of this Agreement or to collect any money due under this Agreement or to foreclose a lien, the unsuccessful party (including the Operator) in such suit or action will pay to the substantially prevailing party all costs and expenses, including title reports and all attorneys' fees that the substantially prevailing party has incurred in connection with the suit or action (including without limitation proceedings in bankruptcy court), in such amounts as the court may deem to be reasonable therein, and also including all costs, expenses and attorneys' fees incurred in connection with any appeal from the decision of a trial court or any intermediate appellate court. 11.3 Interpretation. The captions of the various articles and sections of this Agreement are for convenience of use and reference only and do not define, limit, augment or describe the scope, content or intent of this Agreement or any parts of this Agreement. The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the masculine and neuter, and each includes a legal entity when the context so requires. The singular includes the plural whenever the context so requires. 11.4 Severability. Invalidation of any one of these covenants, conditions, restrictions, easements or provisions by judgment or court order will in no way affect any other of the same, all of which will remain in full force and effect. 11.5 Notices. All notices, demands or other communications ("Notices") required or otherwise given under this Agreement must be in writing. Notices given by mail will be sent postage prepaid by certified or registered U.S. mail, return receipt requested, and will be deemed given three (3) business days after the date of mailing thereof, or on the date of actual receipt, if sooner. Notices will be addressed to the last known address of the addressees. Notice to any Owner may be given at any Lot owned by such Owner; provided,, however, that an Owner may from time to time by Notice to Operator designate such other place or places or individuals for the receipt of future Notices. If there is more than one Owner of a Lot, Notice to any one such Owner will be 3924/060 06/19/17 - 24 - ' cc&rs final tbarke\southcenter corp square sufficient. Notices to the Operator shall be given at the following addresses; provided, however, that the Operator may from time to time by Notice to the Owners designate such other place or places or individuals for the receipt of future Notices: Southcenter Corporate Square, LLC c/o Pinnacle Commercial 635 Andover Park West, Suite 107 Tukwila, WA 98188 Attention: Tamara K. Maloney, CPM And to: Pacific Realty Advisors LLC 411 University Street, Suite 1200 Seattle, WA 98101 Attention: Jack Rader 11.6 Computation of Time. Unless otherwise specified, the word "day" means a calendar day, and the computation of time under this Agreement will include all Saturdays, Sundays and holidays for purposes of determining time periods specified in this Agreement. The term "business day" means any day other than a Saturday, Sunday or other day on which United States national banks are authorized or required by law to close. 11.7 No Public Right or Dedication. Nothing contained in this Agreement will be deemed to be a gift or dedication of all or any part of the Park to the public, or for any public use, except as may be specifically set forth on any recorded final plat or subdivision map. 11.8 Applicable Law. This Agreement will be construed in all respects in accordance with the laws of the State of Washington. 11.9 Covenants Running with the Land. The covenants, conditions, restrictions, liens, easements, enjoyment rights and other provisions contained in this Agreement are intended to and will run with the land and will be binding upon all persons purchasing, leasing, subleasing or otherwise occupying any portion of the Park, their heirs, executors, administrators, successors, grantees and assigns. All instruments granting or conveying any interest in any Lot and all leases or subleases will refer to this Agreement and will recite that it is subject to the terms hereof as if fully set forth therein; provided, however, all terms and provisions of this Agreement are binding upon all successors in interest despite an absence of reference thereto in the instrument of conveyance, lease or sublease. 3924/060 06/19/17 - 25 - cc&rs final tbarke\southcenter corp square 11.10 Release from Liability. Any Owner will be bound by this Agreement only during the period such person is an Owner, except as to obligations, liabilities or responsibilities that accrue during the period. 11.11 Not a Partnership. This Agreement is not intended to create, nor will it in any way be interpreted or construed to create, a joint venture, partnership or other such relationship among the Owners. Further, this Agreement is not intended to create, nor will it in any way be interpreted or construed to create, any third party beneficiary rights in any person or entity, other than the Owners, unless otherwise expressly provided for in this Agreement. 11.12 Amendments. This Agreement may only be amended by a written instrument executed by all of the Owners with at least eighty percent (80%) of the total Allocable Shares, and agreed by Mortgagees under any Mortgage affecting a Lot. Amendments to this Agreement will take effect upon the recording thereof in the real property records of King County, Washington. Notwithstanding anything to the contrary in this Agreement, however, the ingress and egress and utility easements in this Agreement will not be modified without the prior written consent of the City of Tukwila. (This Agreement continues on the following page) 3924/060 06/19/17 - 26 - cc&rs final tbarke\southcenter corp square 11.13 Exercise of Rights; Performance of Obligations. Each Owner and Operator, in exercising its rights or performing its obligations under this Agreement, will do so in a manner which minimizes any interference with the business activities of the lawful occupants of the Park. DATED as of the day and year first above written. DECLARANT: SOUTHCENTER CORPORATE SQUARE, LLC, a Delaware limited liability company By: PCCP CS Southcenter Corporate Square, LLC, a Delaware limited liability company, its Managing Member By: PacificCal II, LLC, a Delaware limited liability company, its Sole Member By: PacificCal, LLC, a Delaware limited liability company, its Sole Member By: PCCP CS Holdings, LLC, a Delaware limited liability company, its Managing Member 3924/060 06/19/17 - 27 - cc&rs final tbarke\southcenter corp square A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document ofState California^ ` County of L�,� %'m e S On J obe. 301.)- before me, C. le--. ?-aos , t.)c v\l.IR \o\ic (insert name and title of the officer) personally appeared Uj 1`1\iam ty1G who proved to me on the basis of satisfactory evidence to be/the persor}(.$) whose names' is/art subscribed to the within instrurnent and acknowledged to me that he/sbefth y executed the same in his/hoithetr authorized capacity(061, and that by his/h_erAPKir signatures.} on the instrument the person(, or the entity upon behalf of which the person(acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. C. K. RECINOS Notary Public - California 1 Los Angeles County +ny� Commission # 2197743 My Comm. Expires Jun 10, 2021 3924/060 06/19/17 - 28 - cc&rs final tbarke\southcenter corp square EXHIBITS: Exhibit A: Exhibit B: Legal Description of Property Allocable Shares 3924/060 06/19/17 - 29 - - cc&rs final tbarke\southcenter corp square CONSENT BY LENDER: WELLS FARGO BANK, NATIONAL ASSOCIATION By Name Title STATE OF COUNTY OF ) ss. On this day of Notary Public in and for the State of personally appeared , 2017, before me, the undersigned, a , duly commissioned and sworn , known to me to be the of WELLS FAR ¢b BANK, NATIONAL ASSOCIATION, the national banking association that executed the foregoing instrument, and acknowledged the instrument to be the free and voluntuy act . • deed of the bank, for the purposes therein mentioned, and on oath stated that he/sh . • authorized to execute the instrument. I certify that I know o haves . factory evidence that the person appearing before me and making this acknowledg>ti > is the person whose true signature appears on this document. WITNESS y hand and official seal hereto affixed the day and year in the certificate above ritten. 3924/060 06/19/17 tbarke\southcenter corp square Signature Print Name NOTARY PUBLIC in and for the State of , residing at My commission expires - 30 - cc&rs final EXHIBIT A LEGAL DESCRIPTION OF LAND LOTS 3 AND 4, CITY OF TUKWILA SHORT PLAT NUMBER L97-0049 (SOUTHCENTER CORPORATE SQUARE), ACCORDING TO THE SHORT PLAT RECORDED UNDER RECORDING NUMBER 9711069009, RECORDS OF KING COUNTY, WASHINGTON; EXCEPT RAILROAD TRACKAGE AND APPURTENANCES AS RESERVED BY UNION PACIFIC RAILROAD COMPANY, AS DISCLOSED BY DEED RECORDED UNDER RECORDING NO. 7607070502. 3924/060 06/19/17 - 31 - cc&rs final tbarke\southcenter corp square EXHIBIT B ALLOCABLE SHARES Buildings Allocable Share Buildings 1— 9 and 11 91.77% Building 10 8.23% 3924/060 06/19/17 - 32 - cc&rs final tbarke\southcenter corp square