ORD 23-973 - Amending the Winco Foods Concomitant Zoning AgreementORDINANCE NO.23-973
AN ORDINANCE of the City of Federal Way, Washington, relating to
approval of an amendment to the WinCo Foods Concomitant Zoning
Agreement to remove the applicability of the Concomitant Zoning
Agreement to the WinCo Foods property. (Amending Ordinance No. 91-
99)
WHEREAS on August 10, 2021, the Community Development Department of the City of
Federal Way received a Process V Land Use application (file #21-103294-UP) and Environmental
Checklist (file #21-103298- UP) from WinCo Foods, LLC ("Applicant"), proposing an amendment
to the existing Concomitant Zoning Agreement ("CZA") governing the property located at 160 SW
Campus Drive, King County tax parcel 4159200710 ("WinCo Foods Property"); and
WHEREAS the CZA was originally adopted by Ordinance No. 91-99, passed by City
Council on June 4, 1991; and
WHEREAS the CZA limits allowable uses and establishes specific development standards on
both the WinCo Foods Property as well as King County tax parcels 4159200715, 4159200720 and
4159200725, which are respectively developed with a Starbucks store and dental office, an IHOP
restaurant and surface parking; and
and
WHEREAS the CZA limits the maximum square footage of the WinCo Foods grocery store;
WHEREAS the applicant has requested to amend the CZA to remove the applicability of the
CZA to the WinCo Foods property, resulting in removal of the limitation on the maximum square
footage of the grocery store, and returning the property to solely the Community Business (BC) zone
without any additional development restrictions or entitlements; and
Ordinance No. 23-973 Page I of 14
WHEREAS, the proposal does not seek to amend the CZA as to the other properties
governed by the CZA; and
WHEREAS the Section 3 of the CZA allows the agreement to be amended by the City or the
owner by filing an application therefore, which shall be considered and heard in the same manner as
a City -initiated quasi-judicial rezone of the property; and
WHEREAS any such amendment shall not be effective unless and until such amendment has
been approved by the City; and
WHEREAS under Chapter 19.75 Federal Way Revised Code ("FWRC"), Process V, a City -
initiated quasi-judicial rezone is reviewed as a non -project -related rezone; and
WHEREAS pursuant to Process V the application is considered in an open record public
hearing in front of the Hearing Examiner, who thereafter provides a written recommendation on the
application to the City Council; and
WHEREAS under Process V the City Council makes the final decision on the land use
application based solely on the record established by the Hearing Examiner; and
WHEREAS the City issued a determination of nonsignificance ("DNS") on the proposal on
May 27, 2022, one comment was received, and no person appealed the DNS; and
WHEREAS pursuant to Federal Way Revised Code Process V, the Federal Way Hearing
Examiner held a public hearing on the application on October 11, 2023; and
WHEREAS after the hearing, the Federal Way Hearing Examiner issued findings of fact,
conclusions of law, and a recommendation that the City Council approve the amendment, as
contained in Exhibit A.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
Ordinance No. 23-973 Page 2 of 14
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Findings and Conclusions. The findings of fact and conclusions of law in the
Hearing Examiner's October 24, 2023; "Findings of Fact, Conclusions of Law and
Recommendation," attached hereto as Exhibit A and incorporated by this reference, are hereby
adopted as the findings and conclusions of the Federal Way City Council. Any finding deemed to be
a conclusion, and any conclusion deemed to be a finding, shall be treated as such.
Section 2. Mlication Approval. Based upon the recommendation of the Federal Way
Hearing Examiner and the findings and conclusions contained therein as adopted by the City Council
immediately above, the WinCo Foods CZA amendment request, file No. 21-103294-UP, is hereby
approved and the CZA amended as set forth in Exhibit B.
Section 3. Severability. Should any section, subsection, paragraph, sentence, clause, or phrase
of this ordinance, or its application to any person or situation, be declared unconstitutional or invalid
for any reason, such decision shall not affect the validity of the remaining portions of this ordinance
or its application to any other person or situation. The City Council of. the City of Federal Way
hereby declares that it would have adopted this ordinance and each section, subsection, sentence,
clauses, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections,
sentences, clauses, phrases, or portions be declared invalid or unconstitutional.
Section 4. Corrections. The City Clerk and the codifiers of this ordinance are authorized to
make necessary corrections to this ordinance including, but not limited to, the correction of
scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any
references thereto.
Ordinance No. 23-973 Page 3 of 14
Section 5. Ratification. Any act consistent with the authority and prior to the effective date of
this ordinance is hereby ratified and affirmed.
Section 6. Effective Date. This ordinance shall take effect and be in force thirty (30) days
from and after its passage and publication, as provided by law.
PASSED by the City Council of the City of Federal Way this 21 st day of November, 2023.
ATTEST:
CITY OF FEDERAL WAY:
JI RRAL, MAYOR
COURTNEY, CMC, CITY CLERK
AS TO FORM:
(: RYAN CALL, C TY A &NEY
FILED WITH THE CITY CLERK: 11/01/2023
PASSED BY THE CITY COUNCIL: 11/21/2023
PUBLISHED: 12/01/2023
EFFECTIVE DATE: 12/31/2023
ORDINANCE NO.: 23-973
Ordinance No. 23-973 Page 4 of 14
EXHIBIT A
FIRST AMENDMENT TO
CONCOMITANT ZONING AGREEMENT
This First Amendment to Concomitant Zoning Agreement (this "First Amendment") is dated for
reference purposes , 2023, and is made and entered into by and between
the CITY OF FEDERAL WAY, a non -charter optional municipal code city incorporated under
the laws of the State of Washington (the "City"), and WINCO FOODS, LLC, a Delaware limited
liability company ("Owner").
RECITALS
A. The City and Quadrant Corporation, a Washington corporation ("Quadrant") were parties
to the Concomitant Zoning Agreement dated July 24, 1990 (the "Concomitant Zoning
Agreement"). The Concomitant Zoning Agreement concerns a certain property as described in
Exhibit A of the Concomitant Zoning Agreement, which was subject to subsequent binding site
plan and boundary line adjustments, and which is currently legally described as follows:
LOT A of City of Federal Way Boundary Line Adjustment No. 13-104768-00-SU,
recorded December 24, 2013 under Recording No. 20131224900009, in King County,
Washington.
LOT B of that certain Boundary Line Adjustment No. 13-104768-00-SU recorded on
December 24, 2013 in Volume 305, Page 78, as Instrument No. 2013224900009 in the
official records of King County, Washington.
LOT C of that certain Federal Way Binding Site Plan No. BSP97-0001 recorded on
November 20, 2000 in Volume 141, Page 280, as Instrument No. 20001120900005 in the
official records of King County, Washington, except that portion conveyed to the City of
Federal Way recorded March 04, 2009 by recording No. 20090304001869.
LOT D of that certain Boundary Line Adjustment No. 13-104768-00-SU recorded on
December 24, 2013 in Volume 305, Page 78, as Instrument No. 20131224900009 in the
official records of King County, Washington.
Subject to Non -Exclusive easements contained in Declaration of Easements and
Conditions, recorded April 24, 2000 under Recording No. 20000424000088 and
amended by first amendment to Declaration of Easements and Conditions recorded
November 29, 2000 under Recording No. 20001129000245 which was Re -Recorded
January 10, 2017 under Recording No. 20170110000377 and as further amended by
Second Amendment to Declaration of Easements and Conditions recorded February 22,
2017 under Recording No. 20170222000604.
B. The City passed Ordinance No. 91-99, by City Council approval on June 4, 1991, with an
effective date of June 12, 1991. This ordinance was for rezoning an approximate 14 acres site
from a Single -Family Residential (RS 9.6) zone to a Community Business (BC) zone with
Ordinance No. 23-973 Page 5 of 14
conditions: 1) On -site mitigation sufficient to mitigate all impacts of the development; 2) Off -site
drainage mitigation measures at the maximum level anticipated within the terms of the
Concomitant Zoning Agreement; and 3) All other development conditions, and/or obligations,
and/or terms as contained in the Concomitant Zoning Agreement.
C. WinCo has requested to amend the Concomitant Zoning Agreement, and specifically
Exhibit A to the Concomitant Zoning Agreement identifying the property subject to the
agreement, to remove the applicability of the Concomitant Zoning Agreement to the property
located at 160 SW Campus Drive, parcel number 415920-0710, as legally described as follows:
LOT A of City of Federal Way Boundary Line Adjustment No. 13-104768-00-SU,
recorded December 24, 2013 under Recording No. 20131224900009, in King County,
Washington.
D. The Concomitant Zoning Agreement, per Section 3, allows the agreement to be amended
by the City or the Owner by filing an application therefore, which shall be considered and heard
in the same manner as a City -initiated quasi-judicial rezone of the property. Such action shall not
release the Owner or the City from any obligations assumed under the Concomitant Zoning
Agreement, unless and until such amendment has been approved by the City.
E. A City initiated quasi-judicial rezone is treated as a non -project -related rezone and
conducted pursuant to procedures of a non -project -related Process V "Quasi -Judicial Rezone" in
accordance with the City of Federal Way Revised Code 19.75. Process V land use applications
require a public hearing in front of the Hearing Examiner, written recommendation from the
Hearings Examiner, and final decision from the City Council.
AGREEMENTS
The City and WinCo Foods, LLC agree to the following:
1. Amendment to the Concomitant Zoning Agreement. By way of application and approval
process for a City -initiated quasi-judicial, non -project -related rezone of the property,
Exhibit A to the Concomitant Zoning Agreement is amended and replaced in its entirety
with Exhibit A-1 to this First Amendment.
[Signature page follows]
Ordinance No. 23-973 Page 6 of 14
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to
Concomitant Zoning Agreement as of the date set forth above.
CITY:
City of Federal Way
By:
Name:
Title:
OWNER:
WinCo Foods, LLC
By:
Name:
Title:
Ordinance No. 23-973 Page 7 of 14
EXHIBIT A-1
CONCOMITANT ZONING AGREEMENT AMENDED LEGAL DESCRIPTION
LOT B of that certain Boundary Line Adjustment No. 13-104768-00-SU recorded on December
24, 2013 in Volume 305, Page 78, as Instrument No. 2013224900009 in the official records of
King County, Washington.
LOT C of that certain Federal Way Binding Site Plan No. BSP97-0001 recorded on November
20, 2000 in Volume 141, Page 280, as Instrument No. 20001120900005 in the official records of
King County, Washington, except that portion conveyed to the City of Federal Way recorded
March 04, 2009 by recording No. 20090304001869.
LOT D of that certain Boundary Line Adjustment No. 13-104768-00-SU recorded on December
24, 2013 in Volume 305, Page 78, as Instrument No. 20131224900009 in the official records of
King County, Washington.
Subject to Non -Exclusive easements contained in Declaration of Easements and, Conditions,
recorded April 24, 2000 under Recording No. 20000424000088 and amended by first
amendment to Declaration of Easements and Conditions recorded November 29, 2000 under
Recording No. 20001129000245 which was Re -Recorded January 10, 2017 under Recording No.
20170110000377 and as further amended by Second Amendment to Declaration of Easements
and Conditions recorded February 22, 2017 under Recording No. 20170222000604.
Ordinance No. 23-973 Page 8 of 14
EXHIBIT B
BEFORE THE HEARING EXAMINER FOR THE CITY OF FEDERAL WAY
Phil Olbrechts, Hearing Examiner
RE: Winco Foods CZA Amendment
FINDINGS OF FACT, CONCLUSIONS OF
No. 21-103294-UP / 21-103298-SE LAW AND RECOMMENDATION
INTRODUCTION
The Applicant requests approval of an amendment to a concomitant zoning agreement (CZA) to
remove all CZA restrictions that apply to the Winco Foods store located at 160 SW Campus
Drive. CZA restrictions include a maximum gross leasable area at the Winco site of 67,000
square feet. Winco plans to expand its store beyond this maximum area. All requirements of
the underlying Community Business (BC) zone would still apply upon approval of the requested
CZA amendment. The CZA amendment request must be processed as a rezone application'. It
is recommended that the City Council approve the CZA amendment.
The only public comments regarding the proposal were limited to two emails. An October 4,
2023 email from T. Whiting inquired what the project was about and expressed concern about
homeless persons, cars and motorhomes in the Winco parking lot. A June 6, 2022 email from
Diana Noble -Guilford inquired about whether the proposed expansion would affect access on the
west side of the project site2. A letter from the Applicant's legal counsel was also submitted
providing an overview of the review criteria. No one other than the staff and Applicant testified
at the rezone hearing.
The CZA was approved by the City in 1991, just one year after the City's incorporation. In the
more than three decades since the City was incorporated 1991 the City has adopted numerous
detailed development standards designed to address development impacts at levels tailored to the
Federal Way community. At hearing, staff testified there were no special circumstances still in
place today that necessitate the additional restrictions imposed by the CZA. The nearest
sensitive land use are some multi -family units located to the south. Those units are already in a
mixed -use area and likely will benefit more from the added groceries of a larger Winco then any
adverse impacts from the expansion. For all these reasons, there is ample justification to approve
the requested rezone.
' The CZA legally qualifies as added zoning restrictions on the project site and hence its amendment qualifies as a
rezone. Consistent with this principle, Section 3 of the CZA requires CZA amendment applications to be processed
as rezone applications. This recommendation references the CZA amendment application as a rezone application.
2 Ms. Noble Guilford's comments were directed at a Process III application to expand the Winco store. That Process
III application was withdrawn on August 11, 2022. Traffic impacts will be addressed when a project application is
submitted.
Ordinance No. 23-973 Page 9 of 14
ORAL TESTIMONY
No one testified except Chaney Skadsen, senior City planner, and the Applicant's legal
counsel, John Sitkin. Mr. Sitkin expressed support for the staff report and thanked staff for
their work on the project.
EXHIBITS
The September 29, 2023 staff report along with attachments A-Q as identified on the last page of
the report were admitted during the October 11, 2023 hearing. The following additional exhibits
were also admitted during the hearing:
Exhibit R: September 29, 2023 email from T. Whiting along with staff response
Exhibit S: City staff power point
Exhibit T: October 5, 2023 letter from Jon Sitkin, counsel for Winco
FINDINGS OF FACT
Procedural:
1. Applicant . Nathan Coombs, Petersen-Staggs Architects, LLP, 5200 West State St.
Boise, ID 83703
2. Hearing. A hearing was conducted on the application on October 11, 2023 at 10:00 am at
Federal Way City Hall.
Substantive:
3. Site/Proposal Description. The Applicant requests approval of an amendment to a
concomitant zoning agreement (CZA) to remove all CZA restrictions that apply to the Winco
Foods store located at 160 SW Campus Drive. The CZA limits maximum gross leasable area at
the Winco site to 67,000 square feet. Winco plans to expand to a size of 81,591 square feet. All
requirements of the underlying Community Business (BC) zone would still apply upon approval
of the requested CZA amendment.
The City and Quadrant Corporation, a Washington corporation ("Quadrant") were parties to the
original Concomitant Zoning Agreement dated July 24, 1990. The CZA applies to the following
parcels outlined in Table 1 below.
Table 1: Current Properties Governed by the CZA
Parcel TE—xisting
Use
4159200710
1 Grocery WinCo Foods
4159200715
Medical Office Retail (Starbucks, Federal Way Modern Dentistry,
Victoria Chang,DMD
4159200720
Restaurant IHOP
Ordinance No. 23-973 Page 10 of 14
4159200725 1. Surface Parking
On June 4, 1991, the Federal Way City Council approved Ordinance No.91-99 (Exhibit D),
rezoning an approximate 14-acre site located at the northwest corner of Southwest 348th Street
and 1st Avenue South from Single Family Residential (RS 9.6) to Community Business (BC)
and adopting specific conditions as contained in the adopting ordinance. The rezone permitted
development of the site consistent with the Community Business Land Use Classification of the
City's Comprehensive Plan in effect at that time, as supplemented by the simultaneously adopted
CZA.
The CZA contains, among other things, limits to allowable uses on the property, specific
development standards for maximum building size, fagade modulations, location of parking,
buffers, open space, park development fees and surface water improvements. The CZA outlines
that the allowable uses on the property shall be limited to those set forth in Chapter 40,
Neighborhood Business District Regulations of the Federal Way Zoning Code as the same now
exists or may hereafter be amended with the exception of the following provisions per Section
2B:
(i) Owner shall be permitted to develop on the property one grocery store of a size
not to exceed 45,000 square feet gross leasable areas, and
(ii) Owner shall be permitted to develop on the property one drug store of a size not
to exceed 22,000 square feet of gross leasable area, and
(iii)No vehicle service station use shall be permitted on the property.
If the Council approves the requested CZA amendment, no specific size restrictions will apply to
the Winco grocery store.
4. Surrounding Uses. The closest sensitive land uses are the Fox Run apartments located
on the east side of the project site and a single-family residential development to the west across
Campus Drive. Commercial/medical offices are located to the south and Panther Lake Park is
located to the north.
5. Adverse/Positive Impacts. No significant adverse impacts are associated with the
proposal and the proposal is found to be in the best interests of the residents of the City. As noted
in the staff report, the proposal removes 30-year old CZA restrictions and leaves the applicable
land use restrictions to the current zoning code, which according to staff reflects best planning
practices and conforms to the current day development practices of the City. As the Council is
aware, the City has adopted detailed development standards since its incorporation in 1990, just
one year before adoption of the CZA. Those standards address what the Council over the years
has found to be acceptable development impacts. Removing the added CZA limitations would
put the Winco development on par with surrounding development.
The hearing examiner inquired at the hearing whether there were any special circumstances that
necessitated the CZA limitations in 1991 that might still apply today. Staff were not aware of
any. There are some apartments located on the east side of the project site. However, those
apartments are already located in a mixed use area and it doesn't appear that some additional
Ordinance No. 23-973 Page 11 of 14
grocery space will adversely affect that use. In point of fact, the availability of additional
grocery store space will benefit the apartments as well as the surrounding community by
providing additional food choices.
It's unclear if the surrounding road network is suited for additional trip generation that would be
facilitated by approval of the rezone. However, the proposed rezone was reviewed by public
works staff and they expressed no concerns. Project specific traffic impacts will be addressed
during specific project review and the proposal will have to conform to the City's traffic level of
service standards.
As noted in the staff report, the proposal will also provide increased job opportunities and add to
the City's tax base.
6. Change in Circumstances. As outlined in Finding of Fact No. 5, the City's development
standards have significantly evolved since the City was incorporated in 1990 and the CZA was
adopted in 1991. The staff report notes that the maximum square footage allowances for the
defined uses are no longer appropriate as the retail market has changed in the over 30 years since
the limitations were originally established. The population of the City has also increased
dramatically. Given Federal Way's large increase in population since incorporation, it can stand
to benefit from the added grocery services made available by approval of the requested rezone.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner: FWRC 19.75.010 classifies rezones as Process V
applications, which provides the Examiner with the authority to conduct a hearing and make a
recommendation to the City Council. As noted in Footnote No. 1, CZA applications are rezone
applications.
Substantive:
2. Zoning Designation: BC.
3. Review Criteria and Application. FWRC 19.75.130(3)(a) governs the criteria for "non -
project -related" rezones. FWRC 19.745.020(1) limits "non -project -related" rezones to (1)
rezones initiated by the City for properties not owned by the City; and (2) rezones from one
single-family zone classification to another single-family zone classification. The current Winco
rezone application wasn't initiated by the City. However, Section 3 of the CZA provides that
any rezone application filed by the "owner" shall be considered "in the same manner as a City -
initiated quasi-judicial rezone of the property." Consequently, the proposed rezone will be
considered non -project -related for purposes of application of the FWRC 19.75.130(3)(a) criteria.
Ordinance No. 23-973 Page 12 of 14
FWRC 19.75.130(3)(a): The city may approve an application for a quasi-judicial
nonproject rezone only if it finds that:
N The proposed rezone is in the best interest of the residents of the city; and
4. The criterion is met for the reasons identified in Finding of Fact No. 5.
FWRC 19.75.130(3)(a)ii: The proposed rezone is appropriate because either. -
(A) Conditions in the immediate vicinity of the subject property have so significantly
changed since the property was given its present zoning and that, under those
changed conditions, a rezone is within the public interest; or
(B) The rezone will correct a zone classification or zone boundary that was
inappropriate when established;
5. The criterion is met as a change in circumstances for the reasons identified in Finding of
Fact No. 6.
FWRC 19.75.130(3)(a)iii: It is consistent with the comprehensive plan;
6. The criterion is met. As identified in the staff report, the request is consistent with the
Federal Way Comprehensive Plan (FWCP) as the existing zoning of Community Business
complies with the FWCP Community Business designation. No change is being requested to the
Community Business zoning designation. The application is also consistent with the following
comprehensive policies as well:
LUP40 — Encourage a range of pedestrian -oriented retail, while continuing to
accommodate auto -oriented retail uses, and provide supportive uses to meet the needs
of residents and employees in the area.
EC7 — Promote an economic climate that is supportive of business formation,
expansion, and retention, and emphasizes the importance of small businesses in
creating jobs.
EDG2 — Help attract, expand, and retain businesses, jobs, and investments that provide
employment and enhance income opportunities for Federal Way residents.
EDP8 — Promote the redevelopment of existing underdeveloped areas as a means to
sustain the economy and provide jobs.
Allowing the increased floor area is also consistent with the Land Use Concept in
Chapter 2 of the FWCP, which states:
Ordinance No. 23-973 Page 13 of 14
"The land use concept should result in the following:
Accommodation of adopted growth targets for households and jobs and Puget Sound
Regional Council (PSRC) growth projections within the proposed land use plan area."
Allowing the increased floor area is also consistent with the Land Use Concept in
Chapter 2 of the FWCP, which states
"The land use concept should result in the following:
Accommodation of adopted growth targets for households and jobs and Puget Sound
Regional Council (PSRC) growth projections within the proposed land use plan area."
FWRC 19.75.130(3)(a)iv: It is consistent with all applicable provisions of the title,
including those adopted by reference from the comprehensive plan; and
7. The criterion is met. Staff have found the current development to be consistent with
applicable zoning code standards and the amendment will subject any alterations to the proposal
to the zoning code standards in place at the time of vesting.
FWRC 19.75.130(3)(a)v: It is consistent with the public health, safety, and welfare.
The criterion is met for the reasons identified in Finding of Fact No. 5.
RECOMMENDATION
The Examiner recommends that the City Council approve the requested rezone application,
which renders the 1991 CZA inapplicable to the Winco property.
DATED this 24th day of October, 2023.
14-A A. Ol wvchu
Hearing Examiner for Federal Way
Ordinance No. 23-973 Page 14 of 14
CONFORMED COPY
20240116000460
AMENDMENT Rec: $315.50
1/16/2024 12:24 PM
FOURTH KING COUNTY, WA
TO CONCOMITANT DE
Encha......
_ THIS FOURTH AMENDMENT is made and entered into this I Zak day of
`i C4r1W%r� 2�i , 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
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:
2023 Amendment to Concomitant Agreement
ND: 15361.018 4881-7477-5946v2
Ordinance No. 23-978 page 6 of 17
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.
Anplications for future Non -Regional Commercial Recreational Facility uses or
development shall be subject to SEPA transportation impact fees and concurrency mans ement
processes consistent with Q ity codes at that time and shall vrepare a traffic study and miti ate al
iml2acts not mitigated in the SEPA Baseline to the satisfaction of the City's Public Works
Director pursuant to City codes and a licable City Comprehensive Plan policies.
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.
2023 Amendment to Concomitant Agreement
ND: 15361.018 4881-7477-5946v2
Ordinance No. 23-978
page 7 of 17
Applications for future pion -Regional Commercial Recreational Facilitymes or
development shall be subject to SEPA, transportation impact fees. and concurrence 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 PA,eiit�q249;thirt 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.
2023 Amendment to Concomitant Agreement
ND: 15361.018 4881-7477-5946v2
Ordinance No. 23-978
page 8 of 17
Dated as of the date first written above.
EPI REALTY HOLDINGS, INC.,
a Washington c oration
By
ame
Title fA+silL4
STATE OF WASHINGTON )
I�/,� ) ss.
COUNTY OF MA 04-- )
On thi-S, day personally appeared before me M , to me known to be the
`C QA,,� of EPI Realty Holdings. In _. 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 10 day of -7CAV)UCLV-Lt, 2024,
Notary's signatureIca
Notary's printed name
�,��;+i�����►i� Notary Public in and for the State of
LF�+1'1 Washington.
_- ''` ►�p;''f, ��, My commission expires
Z�
O
i'°uo'- �10 s Ur
`
2023 Amendment to Concomitant Agreement
ND: 15361.018 4881-7477-5946v2
Ordinance No. 23-978
page 9 of 17