Amendement to Declaration of Easment 10-27-2021After Recording Mail to:
Bryce H. Dille
Dille Law, PLLC
2010 Caton Way SW Ste. 101
Olympia, WA 98502
Document Title: First Amendment and Restatement of Declaration of Easement and
Maintenance Agreement
Reference Numbers of Related Documents: Declaration of Easements and Maintenance
Agreement recorded January 09, 2017 under Recording No. 4543024 in Thurston County,
Washington
Grantor: Yelm Creek Apartments, LLC, a Washington Limited Liability Company
Grantee: Owners of Property described herein
Legal Description (abbreviated): A portion of the Northwest quarter of Section 29 Township 17
N., Range 2 East of the W.M., City of Yelm, Thurston County, Washington
Assessor’s Tax Parcel Numbers: 64303400402, 64303400403, 64303400404, 64303400405
FIRST AMENDMENT AND RESTATEMENT OF DECLARATION OF EASEMENT
AND MAINTENANCE AGREEMENT
This First Amendment and Restatement of Declaration of Easement and
Maintenance Agreement (“Declaration”) is made and entered into this ______ day of
______________, 2021 by Yelm Creek Apartments, LLC (“Declarant”).
1. Background.
A. Declarant is developing a mixed-use project in the City of Yelm, Washington on property
identified in the Amended Biding Site Plan referred to in paragraph B of this Declaration the
“Property”. The property is being developed for multi-family residential and commercial uses and
that there is already constructed a multi- family residence development on Unit 3 of the Amended
Binding Site Plan.
B. The Declarant previously prepared an Amended Binding Site Plan approved by the City of
Yelm recorded under Thurston County Auditor’s recording number 4596870 in which the property
was divided into three “Units” that can be conveyed separately. The City of Yelm has approved or
will approve a further amendment to said amended binding site plan identified as “Amendment
Number 2 Creek Road Binding Site Plan” (“Amendment”) through which Tract A and Unit 2 of
original amended binding site plan will be eliminated and Unit 1 and Tract B reshaped; Unit 3
shall have no modification. A copy of the amended binding site plan number 2 is attached hereto
as Exhibit B.
There previously was recorded a Declaration of easements and maintenance agreement under
Thurston County, Washington Auditor’s recording number 4543024 which by reference is
incorporated herein. As a result of the Amendment Number 2 to the Binding Site Plan it is
necessary to restate and amend provisions of that Declaration are more particularly set forth in this
Amended and Restated Declaration which shall amend and replace the previously recorded
Declaration identified above. The Declarant in this Declaration shall establish an easement for the
joint use of Tract B of said site plan along with other common facilities and to provide a mechanism
for the permanent maintenance of certain improvements to serve the overall development of the
property.
Therefore the Declarant does hereby state and agree as follows:
1. Dedication and Easement Reservation.
1.1 Tract B. Tract B is dedicated to the owners of the Unit 1and Unit 3 of said Amended
Binding Site Plan in equal and undivided interests. The use and maintenance of said Tract B shall
be in accordance with that set forth in this Declaration in paragraph 2.1. A permanent easement is
hereby reserved and conveyed for the benefit of Unit 1 and 3 of the Amendment Number 2 Creek
Road Binding Site Plan over, under and across Tract B. The purpose of the easement is for the use,
maintenance, repair and replacement of ingress and egress improvements, utilities, landscaping
and signage in Tract B all in accordance with the design as approved by the City of Yelm in the
binding site plan and the amendment thereto. In addition Tract B may be used for parking for the
exclusive benefit of Unit 3 as shown on the Amendment.
1.2 Storm Drainage System. A permanent easement for use, maintenance, repair and
replacement of the storm drainage system as originally constructed is hereby reserved for the
benefit of Units 1 and 3 over the entire Property.
2. Easement Maintenance and Cost Sharing.
2.1 Tract B. The owner of Unit 3 together with the owner of Unit 1 shall maintain,
repair and replace all improvements, including landscaping, within said Tract B in accordance with
applicable City standards and consistent with the general standard for institutional owned multi-
family and commercial projects in the Pacific Northwest. The owner of Unit 3 shall be responsible
to contract for the maintenance services as set forth herein, and the cost of the same should be paid
60% by the owner of Unit 3 and 40% by the owner of Unit 1. However, any costs of maintaining
utility improvements within Tract B, that exclusively serves one of the Units, shall be paid 100%
by the owner of the benefited Unit. The owner of Unit 3 shall invoice the owner of Unit 1 its share
of the cost incurred as set forth above and shall be paid by the owner of Unit 1 to the owner of
Unit 3 within 30 days of invoice. Any invoice not paid when due shall be at interest at the highest
rate allowable by law until paid.
2.2 Storm Water Facility Maintenance and Cost Sharing. The cost of maintaining,
repairing, and replacing the storm water improvements serving the Property shall be shared by the
owners of the Units, with the owners of Unit 1 being responsible for 12% of the costs and the
owner of Unit 3 being responsible for 88% of the costs. The owner of Unit 3 shall invoice the
Owner of Unit 1 its share of costs incurred by the owner of Unit 1 and the responsible party’s share
shall be payable within 30 days of invoice. Any invoice not paid when due shall bear interest at
the highest rate allowable by law until paid.
2.3 Extraordinary Expenses. If any Unit owner, or its contractors, employees, tenants,
agents, or permittees cause damage or is otherwise responsible for an extraordinary cost of
maintenance repair or replacement to improvements within the easement areas described above,
that party shall be responsible for all costs of the extraordinary work.
2.4 Failure to Maintain. If any Unit Owner fails to perform the maintenance of Tract B
described in Paragraph 2.1 above, the Unit Owner may notify the non-performing Unit Owner in
writing of the maintenance required. If said notice is delivered to the non-performing Lot Owner
and the noted condition is not remedied after a period of thirty (30) days, the Owner may enter
upon Tract B and provide such maintenance, and levy an assessment against the non-performing
Unit Owner and his Unit for the costs of providing said maintenance. Said assessment shall
constitute a lien against the Unit owned by the non-performing Unit Owner, and may be collected
in the same manner as any other annual or special assessment as hereinafter provided. If said
assessment is not paid within thirty (30) days after it is levied, the Owner shall have all the
remedies for collection.
3. Operation and Use. The use of any roadway surfaces within Tract B shall be for ingress
and egress of the Unit owners and their invitees only. No party’s use of these easements shall be
conducted in such a way as to limit or interfere with the other Unit owners’ use of the roadway
surfaces.
4. No Liens. No party shall permit any mechanics, materialman’s, or other liens against any
portion of the others property arising through the performance of work or the provision of materials
under the terms of this Declaration, and all parties agree to indemnify and hold harmless the other
owners from any such liens that may arise.
5. Indemnity. The owner of each Unit agrees to indemnify and defend the others owners, their
employees, contractors, agents, and permittees, against all demands, claims, causes of action of
judgments and all reasonable expenses (including attorney’s fees) for personal injuries or damage
to property arising out of the use, occupancy, maintenance or repair of the easement areas by them,
their employees, contractors, agents or permittees.
6. Insurance. Each party agrees to maintain insurance in commercially reasonable amounts
covering its obligations under this Agreement with respect to injury to person or property and loss
of life, and will furnish the other parties with evidence of such coverage upon written request.
7. Compliance With Laws. Each party agrees that its use of the easement areas shall be in
compliance with all applicable laws, and that all improvements installed within the easement areas
shall be installed, used and maintained in compliance with applicable laws and regulations.
8. Easements Running with the Land. This Agreement and the easements contained herein
shall run with the affected parcels and shall be binding upon the parties, and their heirs, successors,
and assigns.
9. Applicable Law. This agreement shall be governed by and interpreted in accordance with
the laws of the State of Washington. Any litigation arising out of or in connection with this
Agreement shall be conducted in Thurston County, Washington..
10. Attorney’s Fees. In the event any action is instituted or interpret or enforce any of the terms
or provisions of this Agreement, the prevailing party shall be entitled to recover reasonable
attorney’s fees and expenses as well as costs incurred from the non-prevailing party, including any
fees and expenses incurred on appeal.
11. Waiver. No delay in exercising any right or remedy by any party shall constitute a waiver
thereof, and no waiver of the breach of any provision of this agreement shall be construed as a
waiver of preceding or succeeding breach of the same or any other covenant or condition of this
Agreement.
12. Severability. If any term, covenant or condition of this Agreement is found to be invalid or
unenforceable in any respect, such invalidity or unenforceability shall not affect any other
provision of this Agreement, and this Agreement shall be construed as if such invalid or
unenforceable provision had never been contained in this Agreement.
13. Entire Agreement. This agreement and all Exhibits attached constitute the entire
Agreement of the parties with respect to the subject matter, and any property understandings or
agreements of the parties are merged herein. This Agreement may not be modified in any manner
except by a written instrument signed by both parties.
IN WITNESS WHEREOF, the parties hereto have set their hands on this _____ day of
______________________, 2021.
Approved By: City of Yelm Yelm Creek Apartments, LLC a
limited liability company, by SEB, Inc., its
Administrative Manager
By: By:______________________________
Its: Stephen Berg, President
STATE OF WASHINGTON )
) ss.
COUNTY OF ______________)
On this _______ day of ________________, 2021, before me personally appeared
_______________________________, to me known to be the __________________ of the City
of Yelm, the municipality that executed the within and foregoing instrument, and acknowledged
said instrument to be the free and voluntary act and deed of said corporation, for the uses and
purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
NOTARY PUBLIC - State of Washington
Commission expires:
STATE OF WASHINGTON )
) ss.
COUNTY OF ______________)
On this _______ day of ________________, 2021, before me personally appeared Steven
Berg, to me known to be the President of SEB, Inc, the Administrative Manager of Yelm Creek
Apartments, LLC, the limited liability company that executed the within and foregoing instrument,
and acknowledged said instrument to be the free and voluntary act and deed of said corporation,
for the uses and purposes therein mentioned, and on oath stated that he is authorized to execute
said instrument.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
NOTARY PUBLIC - State of Washington
Commission expires:
EXHIBIT B