Loading...
Draft Development Agreement AmendmentError! Unknown document property name. page 1 ND: 15361.018 4881-7477-5946v2 FOURTH AMENDMENT TO CONCOMITANT DEVELOPMENT AGREEMENT Enchanted Park THIS FOURTH AMENDMENT is made and entered into this _____ day of ____________________, by and between the CITY OF FEDERAL WAY, a non-charter optional municipal code city organized and existing under the laws of the State of Washington (the “City” or “Federal Way”), and EPI REALTY HOLDINGS, INC., a Washington corporation (“EPI”). RECITALS A. The Enchanted Parks Property is owned by Jeffrey W. Stock descendants trust and Leanne M. Stock descendants trust under the entity of EPI Realty Holdings, Inc., and leased to EPR Properties for park operations. B. The Property is situated in the City of Federal Way, Washington, and is more particularly described in Attachment A attached hereto and incorporated herein by this reference (the “Property” or “Enchanted Parks”). The Property is subject to zoning and use provisions and development standards of the Concomitant Development Agreement between the City of Federal Way and Enchanted Parks, Inc., dated January 30, 1998, as amended by first amendment dated June 30, 2000, second amendment dated January 17, 2002 and third amendment dated December 5, 2017 (“2017 CZA” or “Concomitant Development Agreement”). C. The parties desire to extend the term of the Concomitant Development Agreement, amend Exhibit C – “Office Park Zone (OP-4) Development Regulations” to provide additional flexibility within the future uses allowed, specify hours of operation parameters for the Regional Commercial Recreation Facility use, and clarify application of traffic mitigation to future potential Non-Regional Commercial Recreation Facility uses. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Fourth Amendment, the parties hereby covenant and agree as follows: AGREEMENTS 1. Section 4.1 Hours of Operation shall be amended as follows: 4.1 Hours of Operation. The normal hours of operation for the Regional Commercial Recreational Facility uses on Enchanted Parks Property shall be permitted from 9:30 a.m. to 10:00 p.m., seven days a week; provided that Enchanted Parks may, from time to time, but not exceeding 15 times per year, maintain operations later than 10:00 p.m. for special events, such as high school graduation parties. In addition, operations of facilities on the Northern portion of the property (as depicted by a dividing line on EXHIBIT J) shall be permitted until 1: 00 a.m. No outdoor music audible to any residential areas shall be allowed after 10:00 p.m. Enchanted Parks shall fully comply with the City Noise Ordinance, glare and lighting requirements; and shall modify, if directed by the Director of Community Development, noise and lighting to minimize any impacts to the developed adjacent residential areas. 2. Section 4.3 Traffic shall be amended as follows: Error! Unknown document property name. page 2 ND: 15361.018 4881-7477-5946v2 4.3 Traffic. As of the date of this Amended Agreement, the parties agree that the traffic generated by the existing uses and activities on the Enchanted Park Property has been mitigated up to the attendance and trip levels set forth in Table 1 below (the "SEPA Baseline"), which were established using EXHIBIT K-2 (REVISED 2003 Traffic Assessment for Wooden Roller Coaster (Sept. 4, 2002)), attached hereto and incorporated herein. The traffic generated by the Enchanted Park Property for any future Regional Commercial Recreational Facility Replacement or Expansion project (hereafter “Expanded Ride Capacity") that requires land use approval or a building/engineering permit shall be calculated using the Methodology of Exhibit K-2 and a 2.5 occupant-to-vehicle ratio. In the review of any future Expanded Ride Capacity Project on the Property, the City shall recognize the methodology used to derive new trips as specified in the traffic report, EXHIBIT K-2, and an occupant-to-vehicle ratio of 2.5 for such uses, consistent with the traffic report, EXHIBIT K-2. Other methods may be used to calculate traffic generation by Enchanted Park as approved by the City. Enchanted Park shall provide a trip generation study consistent with the methodology in EXHIBIT K-2 for all future Expanded Ride Capacity Projects on the property and shall be subject to concurrency management program requirements of Chapter 19.90 FWRC if such Expansion Project generates new trips in the PM Peak hour in excess of the SEPA Baseline. Applications for future Non-Regional Commercial Recreational Facility uses or development shall be subject to SEPA, transportation impact fees, and concurrency management processes consistent with City codes at that time, and shall prepare a traffic study and mitigate all impacts not mitigated in the SEPA Baseline to the satisfaction of the City's Public Works Director pursuant to City codes and applicable City Comprehensive Plan policies. 3. Section 6 Mitigation and Impact Fees shall be amended as follows: 6. Mitigation and Impact Fees. Except as otherwise provided for in this Amended Agreement, Federal Way shall not impose or attempt to recapture any fees from Enchanted Park or impose other requirements on Enchanted Park to mitigate potential impacts associated with the present Regional Commercial Recreational Facility use of the Enchanted Park Property (including uses authorized under Sections 8.1, 8.2, and 8.3 below), except to the extent that street, sidewalk, or other public improvements may be required under FWRC Section 19.135.030. Enchanted Park shall be entitled to conduct Regional Commercial Recreational Facility uses and activities throughout the year on the Property that do not exceed the average of 10 highest days trips or peak hour traffic levels identified in Table 1, or another measure from the City's Guidelines for the Preparation of Transportation Impact Analyses, without the need or requirement to pay mitigation or impact fees of any kind; provided that Regional Commercial Recreation Facility uses or development that exceeds such traffic levels in the future shall be subject to transportation impact fees and concurrency management processes consistent with City codes at that time. In the event traffic generated by an Expanded Ride Capacity project exceeds the SEPA Baseline established in section 4.3 and is deemed significant by the City, Enchanted Parks shall prepare a traffic study and mitigate such impacts to the satisfaction of the City's Public Works Director pursuant to Chapter 19.135 FWRC and applicable Federal Way Comprehensive Plan policies. Error! Unknown document property name. page 3 ND: 15361.018 4881-7477-5946v2 Applications for future Non-Regional Commercial Recreational Facility uses or development shall be subject to SEPA, transportation impact fees, and concurrency management processes consistent with City codes at that time, and shall prepare a traffic study and mitigate all impacts not mitigated in the SEPA Baseline to the satisfaction of the City's Public Works Director pursuant to City codes and applicable City Comprehensive Plan policies. 4. Section 11.6 Term of Agreement shall be amended as follows: 11.6 Term of Agreement. This Amended Agreement shall remain in full force and effect for twenty (20)thirty (30) years from the effective date of this Amended Agreement unless terminated prior to that date by the mutual agreement of the parties or by the City pursuant to Section 13 of this Amended Agreement. 5. Exhibit C to the Concomitant Development Agreement shall be amended as set forth in Attachment B hereto. Error! Unknown document property name. page 4 ND: 15361.018 4881-7477-5946v2 Dated as of the date first written above. EPI REALTY HOLDINGS, INC., a Washington corporation By__________________________ Name _________________ Title __________________ STATE OF WASHINGTON ) ) ss. COUNTY OF ____________) On this day personally appeared before me ______________________, to me known to be the _______________________ of EPI Realty Holdings, Inc. that executed the within and foregoing instrument, and acknowledged the 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 or she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN under my hand and official seal this ______ day of ____________________, 20__. Notary’s signature ______________________________ Notary’s printed name______________________________ Notary Public in and for the State of Washington. My commission expires_________________ Error! Unknown document property name. page 5 ND: 15361.018 4881-7477-5946v2 CITY OF FEDERAL WAY, a Washington municipal corporation By _________________________ Name__________________ Title ___________________ STATE OF WASHINGTON ) ) ss. COUNTY OF ____________) On this day personally appeared before me ______________________, to me known to be the _______________________ of City of Federal Way that executed the within and foregoing instrument, and acknowledged the 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 or she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN under my hand and official seal this ______ day of ____________________, 20__. Notary’s signature ______________________________ Notary’s printed name______________________________ Notary Public in and for the State of Washington. My commission expires_________________ Error! Unknown document property name. page 6 ND: 15361.018 4881-7477-5946v2 ATTACHMENT A [Legal Description of Enchanted Parks Property] Error! Unknown document property name. page 7 ND: 15361.018 4881-7477-5946v2 ATTACHMENT B Exhibit C Office Park Zone (OP-4) Development Regulations 1. PURPOSE AND OBJECTIVES These Office Park Zone (OP-4) development regulations are established to govern the operation and development of a Regional Commercial Recreation Facility and other permitted uses as defined herein, and as described in any Concomitant Development Agreement pursuant to Federal Way City Code (FWCC) 19-104 for property zoned OP-4. 2. APPLICABILITY A. The provisions of this Section will apply to all lands zoned OP-4, which shall be subject to its own unique standards and review processes as set forth herein and in any Concomitant Development Agreement pursuant to Federal Way City Code (FWCC) 19-104 for property zoned OP-4. If the provisions relating specifically to the OP-4 Zone conflict with other provisions of City codes or any Concomitant Development Agreement, these OP-4 Zone provisions shall prevail. After the effective date of a Concomitant Development Agreement, any change in FWCC referenced in any Concomitant Development Agreement shalt not be deemed to modify this Zone except as otherwise provided in the Concomitant Development Agreement. B. Reference herein to the "FWCC" shall refer to Chapters 18, 20, 21 and 22 of the Federal Way City Code. Reference herein to the "Director" shall refer to the City's Director of the Department of Community Services or designee. 3. USES PERMITTED A. In addition to the uses allowed in the Office Park Zone of the FWCCFWRC, the following principal uses are permitted outright: l. Regional Commercial Recreational Facility as defined herein; 2. Hotel, on a parcel not to exceed five (5) acres and as regulated by Sec. 22-757 FWCC, except as otherwise subject to the height limitations and other standards set forth in these Concomitant Development Agreement and these Development Regulations, and subject to project-level environmental review under SEPA, Title 14 FWRC; 3. Restaurants as regulated by Sec. 22-753 FWCC, except as otherwise set forth in these Development Regulations; 4. Retail establishments that provide entertainment, recreational and cultural services, or activities; and Retail Sales, general and specialty not to exceed an amount of square feet of gross floor area on land described in a Concomitant Development Error! Unknown document property name. page 8 ND: 15361.018 4881-7477-5946v2 Agreement pursuant to Federal Way City Code (FWCC) 19-104; 5. Caretaker residence.; 6. Warehousing and distributing, subject to project-level environmental review under SEPA, Title 14 FWRC. B. Regional Commercial Recreational Facility shall mean a use operated for profit, with private facilities, equipment and/or services, both indoor and outdoor for entertainment and recreational purposes, including large- and small-scale amusement rides, roller coasters, aquatic park facilities, swimming pools, accessory video and movie facilities, petting zoos, and other similar uses. Such a use shall be of a scale or offer unique recreational opportunities so as to provide recreational services of a regional nature. The use of such area may be limited to private membership or may be open to the public upon payment of a fee. C. Accessory Uses. The following accessory uses shall be reviewed using that process associated with the permitted use to which it is attached: l. Warehousing and distributing, secondary to permitted primary uses provided such use does not exceed twenty-five percent (25%) of the permitted use; 21. Outdoor storage; and 32. Any other use determined by the Director to be compatible with the above accessory or permitted uses pursuant to Section 22 946 of the FWCC. D. Temporary Uses. The following temporary uses may be conducted in this Zone and are exempt from the requirement of Article X, Chapter 22 of the FWCC: Temporary use in this Zone shall include seasonal retail sale of agricultural products such as vegetables, fruit, or flower stands; community festivals; outdoor sales of recreational vehicles; boat shows; or other parking lot sales, provided each temporary use exists for no more than seventy-five (75) days in every three hundred (300) days. 4. GENERAL DEVELOPMENT STANDARDS AND REVIEW PROCEDURES A. Except for Regional Commercial Recreational Facilities, the development standards and review procedures for all uses, except as otherwise set forth in a Concomitant Development Agreement pursuant to Federal Way City Code (FWCC) 19- 104, shall conform with those identified by the corresponding use in the FWCC Office Park Zone as appropriate. In the event a non Regional Commercial Recreational Facility use permitted in the OP-4 zone is not permitted in the FWCC Office Park Zone, then those development standards and review procedures identified for the specific use in the first zone where the use is allowed, shall apply, except as otherwise set forth in this Agreement; provided, however, that Process II, Article V, Chapter 22, of the FWCC shall be applied to all such uses. For Regional Recreational Facilities within the developed area as shown on EXHIBIT J, Chapter 22, of the FWCC. Article IV.A, Process I - Director's Approval, shall Error! Unknown document property name. page 9 ND: 15361.018 4881-7477-5946v2 be utilized for all such proposed uses. For all other Regional Recreational Facilities, Process II, Article V, Chapter 22 of the FWCC shall govern. B. The height restriction for property zoned OP-4 shall be thirty-five (35) feet unless otherwise established by a Concomitant Development Agreement pursuant to Federal Way City Code (FWCC) 19-104 between the City of Federal Way and the Property Owner. C. Any proposed new development, requiring a development permit, approval of a plan and a landscaping plan, shall submit such plans in compliance with the requirement of the FWCC, except as otherwise set forth in a Concomitant Development Agreement pursuant to Federal Way City Code (FWCC) 19-104; l. The required site plan for any Regional Commercial Recreational Facility use shall be limited to the area which would be disturbed by any proposed structure or proposed impervious surface. 2. The boundaries of any required landscape plan for a Regional Commercial Recreational Facility use shall be coterminous with the disturbed area. 5. ENVIRONMENTALLY SENSITIVE AREAS A. Any portion of property zoned OP-4 which is classified as environmentally sensitive pursuant to Chapter 22, Article XIV (environmentally sensitive areas) of the Federal Way City Code, and on which new development is proposed shall comply with the requirements therein, except as provided in subsection B below. B. The provisions of Chapter 22, Article XIV (environmentally sensitive areas) shall not apply: to new development within artificially-created lakes, wetlands, streams, or surface water retention ponds, or their required setbacks or buffers, except that the provisions of Chapter 22, Article XIV shall apply to any development proposed in lakes, wetlands, or streams (or their required setbacks or buffers) created as mitigation for impacts to wetlands , lakes or streams . 6. SIGNS Notwithstanding any requirements in FWCC Section 22-335 or FWCC Section 22- 1601, a Regional Commercial Recreational Facility may have no more than one regional , high profile, freestanding sign as defined in this Section of the OP-4 Zone. Such a sign shall be in lieu of, not in addition to, one of the two high profile signs that might otherwise be allowed under FWCC Section 22-1601 A regional, high profile, freestanding sign shall be allowed only in connection with Regional Commercial Recreational Facility use, and shall be removed at such time when more than fifty percent (50%) of the square footage of the area devoted to such existing uses as shown on EXHIBIT Bare converted to uses other than Regional Commercial Recreational Facility uses. Upon removal of a regional, high- profile, freestanding sign, FWCC Section 22-1601 shall regulate high profile signs on the OP-4 Zoned property. Error! Unknown document property name. page 10 ND: 15361.018 4881-7477-5946v2 A regional, high profile, freestanding sign must be located near to a regional transportation system (such as an interstate highway), must be located at least three hundred (300) feet from any area zoned residential along SR 161 and S. 369th Street, and may be up to seventy-five (75) feet high and up to thirteen hundred (1,300) square feet in area.