20050603001039CONFORMED COPY
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Return Address: ` CAROLYN M BACK AG 86.00
06 03 2005 013:48
KING COUNTY, WA
�,Aerat Wa�0- W& _9 003--cl711
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3. 4.
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1.Al I_ My L4` Erd ,;� t I Way
2. ou CCU= 77 1
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1. mif
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I64030
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verify the accuracy or completeness of the indexing information provided herein.
I am requesting an emergency nonstandard recording for an additional fee as provided in RCW
36.18.010. 1 understand that the recording processing requirements may cover up or otherwise
obscure some part of the text of the
Sig ature of Requesting Party
CONCOMITANT AGREEMENT
BETWEEN THE CITY OF FEDERAL WAY AND DONALD L. GARDNER INC.
FOR DEVELOPMENT OF WYNSTONE PROPERTY (PARCEL 5B)
MAYL2, 2005
The City of Federal Way ("City") and Donald L. Gardner Inc., ("Owner"), a Washington
corporation, collectively referred to herein as "the Parties", enter into the following concomitant agreement
("Agreement") replacing an earlier concomitant agreement, changing the allowed use under that earlier
agreement, and defining the necessary right-of-way improvements associated with the development of a
parcel of property, specifically described below in Section 2 ("Parcel 5B").
WHEREAS, the City of Federal Way, Washington, a non -charter optional municipal code city
incorporated under the laws of Washington, has authority to enact laws and enter into agreements to
promote the public health, safety, and general welfare of its citizens and thereby control the use and
development of property within its jurisdiction; and
WHEREAS, a concomitant agreement was entered into between the City and Polygon in February
1990 regarding the zoning of Campus Crest Property Parcel 5, which included the Property subject to this
Agreement; and
WHEREAS, an amendment to the 1990 concomitant agreement via Resolution 93-128 split the
Campus Crest Property Parcel 5 into two parcels referred.to as Parcel 5A and 5B and removed parcel 5A
from the terms of the 1990 concomitant agreement; and
WHEREAS, an additional amendment to the 1990 concomitant agreement via Resolution 93-144
altered the original conditions applicable to Parcel 513; and
WHEREAS, various terms of the 1990 concomitant agreement as amended are no longer
applicable to the proposed use and development of Parcel 5B; and
WHEREAS, the developer working with Polygon desires to develop Parcel 5B in a manner
different than what is allowed in the 1990 concomitant agreement as amended and has initiated a
discussion with the City with respect to amending the 1990 concomitant agreement; and
WHEREAS, both Parties agree that a new Agreement is appropriate; and
WHEREAS, the City wishes to preserve its rights under the 1990 concomitant agreement as
amended, including development being restricted to residential use, predetermined setbacks, maximum
density requirements, and right-of-way improvements; and
WHEREAS, both Parties seek clarification regarding the construction of the I Oh Avenue SW
extension and SW Campus Drive improvements; and
NOW THEREFORE, in consideration of the mutual promises and obligations set forth herein, it is
hereby covenanted and agreed by and between the Parties hereto as follows:
1. Description of Agreement. This Agreement is a concomitant agreement that allows for a change
in the allowed use of certain property subject to a previous concomitant agreement, as well as,
development standards and conditions governing the use of the property. The Agreement provides the
developer with certainty regarding the local regulations and mitigation requirements that will govern
development for a specified project. The concomitant agreement is a condition to and limitation upon the
change of use of the property, if adopted by the City Council. That is, if the allowed use is changed
subject to concomitant agreement, its use and development is restricted both by the regulations applicable
to the underlying zoning classification and the provisions of the concomitant agreement, and where
development standards in the agreement are more restrictive, they govern property development. The
development of the property is conditioned and limited by the concomitant agreement. This Agreement
supercedes the 1990 concomitant agreement as amended by Resolutions 93-128 and 93-144 as it applied to
Parcel 5B.
2. Location. Donald L. Gardner Inc. is the owner of certain real property, King County tax parcel
number 192104-9044, situated in Federal Way, Washington, located along the southwest side of Campus Drive
at the intersection of loth Avenue SW ("Parcel 5B"). Parcel 5B is more particularly described on Exhibit A
attached hereto and incorporated herein by this reference.
3. Project Description. The Project consists of development of 44 single family lots and one acre of
multi -family units as depicted on the Development Plan, attached hereto as Exhibit B (the "Plan" or
"Development Plan'). The Plan encompasses a larger area of real property than is covered by this
Agreement. It is the intention of the Parties that the terms of this Agreement do not apply to the entire area
of real property encompassed by the Plan, but only to Parcel 5B as described above in Section 2.
4. Concomitant Agreement. If the allowed use of Parcel 5B is changed from exclusive multi-
family to both single-family and multi -family by the Federal Way City Council, Owner and the City agree
that Parcel 5B may be developed only in accordance with the standards and mitigation set forth in the
Agreement. Parcel 5B shall be developed as described in the Agreement, and as depicted in the
Development Plan. The allowable use of the property shall be limited to that described in the Agreement.
All development standards, including mitigation, identified in the Agreement shall apply to property
development. No development on Parcel 5B shall be inconsistent with the Agreement or City Code.
Parcel 5B is subject to the Agreement, and shall be developed only in accordance with the development
standards identified within the Agreement, including the Development Plan, unless and until the
Agreement is amended or rescinded, as authorized by the City.
5. Development of Property.
5.1 Permitted Uses. Owner covenants and agrees that it will limit any use of Parcel 5B to single-
family and multi -family residences, as depicted in the Development Plan, attached as Exhibit B.
5.2 Relationship Between City Development Regulations and Development Standards
Identified in AMement. Development Regulations include all provisions of the Federal Way City
Code (FWCC), including without limitation FWCC Chapters 18 through 22. The Agreement
establishes site -specific development standards, including mitigation. Property development shall
be consistent with both development regulations and the development standards identified in the
Agreement. Where the development standards in the Agreement are more restrictive, they shall
govern development of Parcel 5B, as specified herein.
6. Development Standards, Including Mitigation. The Project shall be consistent with all specified
development standards. Owner shall construct, install or implement, as part of Project construction, all
Mitigation required by the Agreement.
6.1 Project Design and Site Configuration.
6.1.1 Permitted Develo ment. Owner agrees that development shall be of residences only.
Both single-family and multi -family development will be permitted, but no other
development will be allowed without an amendment to this Agreement.
6.1.2 Building Setback. All site improvements, except utilities, right-of-way improvements,
and entry signage, shall be setback from SW Campus Drive a minimum of 60 feet as depicted
in the Development Plan, attached as Exhibit B.
6.1.3 Maximum Density. The maximum density for the one acre multi -family portion
of Parcel 5B, as designated in the Development Plan, shall be 16-units.
6.2 Right -of way Improvements. Owner shall perform, as part of Project construction and
prior to issuance of final plat approval unless otherwise noted, the following right-of-way
improvements described in the attached Exhibit C as required and approved by the Director of
Public Works.
6.2.1 10'h Avenue SW. That portion of 10'h Avenue SW located within Parcel 5B:
a. Dedicate the full 70 feet Right -of -Way to the City. Right -of -Way dedication to be via
Statutory Warranty Deed. Additional right-of-way, dedicated by the City Parks
Department and additional slope easement, will be necessary to complete the full -
width dedication to SW Campus Drive.
b. Clear and grade the entire 70 feet right-of-way limits, required for the full street
improvements, including clearing and grading outside the right-of-way, sufficient to
provide a 2:1 slope, and as identified and allowed by the geo-technical report, from
the westerly right-of-way to top of slope.
c. Stabilize and control erosion of the graded area, outside the westerly edge of the hard-
. surface street improvements.
d. Grant a slope easement to the City, where needed, for the graded area that falls outside
the westerly right-of-way limit.
e. Provide street improvements for the east half of the right-of-way, as measured from
the centerline: 18-foot paved roadway (centerline to face of curb), curb and gutter, six-
foot planter strip with street trees and street lights, eight -foot sidewalk, and three-foot
utility strip.
f. Provide street improvements for the west half of the right-of-way, as measured from
the centerline: six -feet of paved roadway, plus thickened -edge, and provisions for
drainage. The crown of the roadway pavement shall be located at the right-of-way
centerline, in anticipation of the future 36-foot pavement section.
g. Construct asphalt roadway taper, at a 25:1 ratio, where the roadway section transitions
from the 36-foot roadway section within Tax Lot 30, to the 24-foot roadway section
within Tax Lot 44 (Parcel 5B).
6.2.2 SW Campus Drive. SW Campus Drive, southeast of 10t` Avenue SW, along
Parcel 5B frontage:
a. Dedicate seven feet of Right -of -Way to the City. Right -of -Way dedication to be via
Statutory Warranty Deed.
b. Provide additional asphalt paving to create a twelve -foot wide left -turn pocket to
access 10t' Avenue SW from SW Campus Drive per City Standard Roadway Section
`E', with concrete curb and gutter, six-foot planter strip with street trees and street
lights, eight -foot sidewalk, and three-foot utility strip.
c. Provide sufficient new roadway taper east from the widened paved edge at the easterly
property boundary.
6.2.3 Intersection of 10 h Avenue SW and SW Cam us Drive:
a. Extend existing curb, gutter, planter strip, and sidewalk around the radius to the
southwest, terminating at the end of the curb return at the NW quadrant of
intersection. This section of the new 10'h Avenue SW roadway, including pavement
width, shall be constructed to the City's Type `M' street section.
b. Construct asphalt paved taper, at a 25:1 ratio within the new 10t' Avenue SW right-of-
way, from the end of the curb return, to meet the proposed 24-foot paved roadway
section, described above.
c. Construct City -standard handicap access ramps at the NW and SW quadrants of the
intersection.
d. Add. channelization in SW Campus Drive to create a left turn lane onto 10I' Avenue
SW, into the proposed plat of Parcel 5B.
e. Revise the left turn marking for traffic on the existing leg of I Oh Avenue SW so that it
will be a combined thru and left turn pavement marking (WSDOT Type 3L marking).
f. Provide channelization for the new section of 10t' Avenue SW marked for two lanes
of traffic: one lane westbound, with the southerly lane allowing for
thru-, left, and right -turns.
g. Provide signal modifications, including, but not limited to, wiring and conduit, loops,
new signal poles, mast arms, etc., to the existing traffic signal system to be
coordinated with City Traffic Division for all required modifications.
7. . Other Project Review Processes.
7.1 Single -Family Portion. The single-family portion of the Project will be subject to preliminary
plat approval, engineering plan review, final plat approval, and any other applicable review processes.
The final design of the buildings and other improvements, precise location of building footprints,
location of utilities, determination of access points, and other design issues will be determined during
that process and must be consistent with the Agreement and the Plan.
7.2 Multi -Family Portion. The multi -family portion of the Project will be subject to site plan
and design review pursuant to the design requirements outlined in the FWCC and any other
applicable review processes. The final design of the buildings and other improvements, precise
location of building footprints, location of utilities, determination of access points, and other
design issues will be determined during that process and must be consistent with the Agreement
and the Plan.
4
8. Waiver and Mutual Release of Claims of Invalidity. The City and Owner acknowledge and
represent that the terms of this Agreement have been jointly negotiated and that each party enters into this
Agreement voluntarily. Further, Owner and the City agree that this Agreement is authorized under law and
each party waives any claim that the Agreement is invalid or illegal. The agreements and representations
in this Section are material to this Agreement and are being relied upon by both Parties.
9. General Provisions.
9.1 Binding on Successors.
9.1.1 The Agreement shall bind and inure to the benefit of the Parties and their successors
in interest, and may be assigned to any successor in interest to the Project property.
9.1.2 This Agreement is intended to protect the value of, and facilitate the use and
development of, Parcel 5B and to protect the public health, safety, and welfare of the City.
Therefore, the covenants set forth herein shall be construed to and do touch and concern
Parcel 5B and the benefits and burdens inuring to Owner and to the City from this Agreement
shall run with the land and shall be binding upon Owner, its heirs, successors, and assigns,
and upon the City.
9.2 Governing I.aw. This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Washington. Venue for any action to enforce the terms of this Agreement shall be
in King County Superior Court.
9.3 Severability. The provisions of this Agreement are separate and severable. The invalidity of any
clause, sentence, paragraph, subdivision, section, or portion or the invalidity of the application thereof
to any person or circumstance, shall not affect the validity of the remainder of this Agreement, or the
validity of its application to other persons or circumstances.
9.4 Authority. The City and Owner each represents and warrants to the other that it has the respective
power and authority, and is duly authorized, to execute and deliver this Agreement and that the
persons signing on its behalf are duly authorized to do so. Owner further represents and warrants that
it is the fee owner of Parcel 513, that it has authority to agree to the covenants and provisions contained
herein, and that there are no other persons, entities, or parties with any fee interest in Parcel 5B.
9.5 Amendment. This Agreement may be modified only by written instrument authorized by the City
Council and duly executed by the City Manager and Owner, and their successors and assigns;
provided, however, notwithstanding the provisions of this Agreement to the contrary, the City of
Federal Way may, without the agreement of Owner, adopt and impose upon Parcel 5B restrictions and
development regulations different than those set forth herein, if required by a serious threat to public
health and safety. Moreover, five years after the date of the execution of the Agreement, the City may
elect, without the agreement of Owner, to apply development regulations in effect at that time to any
development within the scope of the Agreement that has not been completed at that time.
9.6 Exhibits. All exhibits attached hereto are incorporated herein by this reference as if fully set forth
herein.
9.7 Heading . The headings in this Agreement are inserted for reference only and shall not be
construed to expand, limit or otherwise modify the terms and conditions of this Agreement.
9.8 Integration: Scope of Agreement. This Agreement and its exhibits represent the entire agreement
of the Parties with respect to the subject matter hereof. There are no other agreements, oral or written,
except as expressly set forth herein. This Agreement does not set forth all conditions applicable to the
Project to the extent that additional conditions may be imposed as part of any permit issued by the
City, as required by the Federal Way. City Code as determined by the discretion of the Directors of the
Departments of Community Development Services and/or Public Works.
9.9 Enforcement. Subject to the notice and cure provisions of this section, in the event either party
fails to satisfy any of its obligations under this Agreement, the other party shall have the right to
enforce this Agreement by an action at law for damages or in equity for specific performance. The
Parties acknowledge that damages are not an adequate remedy for breach by either party. In addition
to the remedies set forth herein, in the event of a breach of this Agreement by Owner, the City may
enforce this Agreement under the enforcement provisions of the Federal Way City Code in effect at
the time of the breach and/or it may terminate this Agreement and take action to amend the
Comprehensive Plan and zoning designation of the Parcel 5B. No party shall be in default under this
Agreement unless it has failed to perform its duties or obligations under this Agreement for a period of
thirty (30) days after written notice of default from the other party. A notice of default shall specify
the nature of the alleged default and the manner in which the default maybe cured. If the nature of the
default is such that it cannot be reasonably cured within thirty (30) days, then a party shall not be
deemed in default if the party commences a cure within thirty (30) days and, thereafter, diligently
pursues completion of the cure.
9.10 Attorneys Fees. In any action brought to enforce this Agreement or for damages resulting
from a breach thereof, the prevailing party as determined by the court, shall be entitled to recover its
reasonable attorneys' fees.
9.11 Police Power. Nothing in this Agreement shall be construed to diminish, restrict or limit the
police powers of the City granted by the Washington State Constitution or by general law. This
Agreement is an exercise of the City's police powers, the authority granted under RCW 36.70B.170-
.210, and other laws.
9.12 Recording, Assignment. The Agreement shall be recorded with the Real Property Records
Division of the King County Records and Elections Department.
9.13 No Third Parties. The Agreement is made and entered into for the benefit of the parties
hereto and their successors and assigns. No other person or entity is an intended third party
beneficiary. No other person or entity shall have any right of action under this Agreement.
0
IN WITNESS WHEREOF the parties have hereunto placed their hand and seals on the day and year
indicated.
CITY OF FEDERAL WAY,
-- - . corporation
a
Date:
David H. Moseley, City Manager
ST: ` dddaay of May 2005.
C
N. stine Green,
Federal Way City Clerk
Approved as to Form
for City of Federal Way:
xty Attorney, P -cia A. Rich on
STATE OF WASHINGTON )
)ss.
COUNTY OF INKG
DONALD L. GARDNER INC.,
a Washington corporation
1
BY:
Donald L. Gardner
President
Date: 5 - 3 - Qj
On this day, personally appeared before me, the undersigned, a Notary Public in and for the State
of Washington, duly commissioned and sworn, hoR �-. &a KthPrto me known to be the C<S',G�+ �
of Donald L. Gardner Inc., a Washington corporation, the corporation 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 thaCheAhe is authorized to
execute said instrument on behalf of said corporation.
Given under m�,hK4 and official seal this- day of ! �- 2005.
xF %-4 wi:7� •r"; �• �� (rit e)
c (typed/printed name of notary)
Notary Public in and for the State
yZ-29.G(� f of WashiAV
ngton.
' y y W !�v'` . M_ My commission expires: I C G
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EXHIBIT A
TO CONCOMITANT AGREEMENT
LEGAL DESCRIPTION OF PARCEL 5B
Exhibit A
Plat of Wynstone
Federal Way, Washington
LEGAL DESCRIPTION:
PARCEL 1:
That portion of Government Lot 1, Section 19, Township 21 North, Range 4 East, W.M.,
records of King county, Washington, said portion being more particularly described as
follows:
Commencing at the Northwest corner of said Section 19;
THENCE along the North line thereof South 89°00' 18" East 335.78 feet:
THENCE South 0195' 16" West 42.00 feet to the Southerly margin of the lands
described in deed recorded under Recording No. 8501170665, records of King County,
Washington;
THENCE along said Southerly margin South 89°00' 18" East 18.07 feet to the beginning
of a curve concave to the Southwest having a radius of 658.00 feet;
THENCE Easterly and Southeasterly 700.54 feet along said curve through a central angle
of 60°59'59";
THENCE South 28000' 19" East 422.43 feet to the true point of beginning and the
beginning of a curve concave to the Northeast having a radius of 842.00 feet;
THENCE Southeasterly 217.49 feet along said curve through a central angle of
14°47'59" to a radial line of said curve which bears South 47'11'42" West;
THENCE leaving said margin along the non -tangent East line of said Government Lot
South 01°13' 12" West 390.17 feet to the Southeast corner thereof;
THENCE along the South line of said Government Lot North 88059'20" West 561.92
feet to the beginning of a non -tangent curve concave to the Southeast having a radius of
897.03 feet (a radial line through said beginning bears North 74°48'34" West);
THENCE Northerly and Northeasterly 732.77 feet along said curve through a central
angle of 46048' 15" to the true point of beginning.
Situate in the County of King, State of Washington.
Tax Parcel No. 192104-9044-09
LEGAL DESCRIPTION (continued):
PARCEL 2:
That portion of Government Lot 2 in Section 19, Township 21 North, Range 4 East,
W.M., lying Northerly of a line beginning on the Westerly line of said Government Lot at
a point 412.00 feet Southerly of the Northwest corner thereof;
THENCE East to the Easterly line of said Government Lot;
EXCEPT the Westerly 264.00 feet thereof,
AND EXCEPT that portion thereof described as follows:
Commencing at the Northwest corner of the Southwest quarter of the Northwest quarter
of said Sectionl9;
THENCE South 89°27'31" East along the North line thereof, a distance of 264.01 feet to
the point of beginning;
THENCE continuing South 89°27'31" East, a distance of 298.22 feet;
THENCE South 21°47'27" West, a distance of 122.98 feet;
THENCE South 70°08'00" West, a distance of 83.38 feet;
THENCE South 53°44'33" West, a distance of 164.46 feet;
THENCE North 36°15'27" West, a distance of 44.74 feet to the beginning of a 340.00
foot radius curve the center of which bears South 53°44'33" West;
THENCE Northwesterly along said curve trough a central angle of 05°00'38", an arc
distance of 29.73 feet;
THENCE North 01°06'36" East parallel with the West line of the Southwest quarter of
said Northwest quarter, a distance of 183.39 feet to the point of beginning.
Situate in the County of King, State of Washington.
Tax Parcel No. 192104-9030-05
PARCEL 2A:
An easement for ingress and egress over the South 30 feet of the West 264 feet of the
North 412 feet of Government Lot 2, section 19, Township 21 North, Range 4 East,
W.M., records of King County, Washington
Situate in the County of King, State of Washington
EXHIBIT B
TO CONCOMITANT AGREEMENT
DEVELOPMENT PLAN
EXHIBIT C
TO CONCOMITANT AGREEMENT
SECTION 6.2 RIGHT-OF-WAY IMPROVEMENTS
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.30' CLASS A
.85' CLASS E
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.50' CSTC
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.30' CLASS A
.85' ATB
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.50'
CLASS A
.50'
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.30'
CLASS A
.70'
ATB
SECTION M
EXHIBIT
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