AG 05-070 - DONALD L. GARDNER INC
DATE IN:
DATE OUT:
TO:
~\\9~'S
REQUEST FOR CONTRACT PREPARATION/DOCUMENT REVIEW/SIGNATURE ROUTING SLIP
CITY OF FEDERAL WAY LAW DEPARTMENT
1. ORlGINATING DEPT.IDIV: LOJ / P {fliJLUJI,..,....
2. ORIGINATING STAFF PERSON: .:J)md\ J.I tj ((I) r/J"/tf( EXT';}(,.,lf ( 3. DATE REQ. BY:
4.
TYPE OF DOCUMENT REQUESTED (CHECK ONE)
o PROFESSIONAL SERVICE AGREEMENT
o MAINTENANCE/LABOR AGREEMENT
[] PUBLIC WORKS CONTRACT
CJ SMALL PUBLIC WORKS CONTRACT
o SECURITY DOCUMENT (E.G. AGREEMENT &
PERF/MAIN ROND; ASSIGNMENT OF fUNDS IN LIEU OF BOND)
o CONTRACTOR SELECTION DOCUMENT
(LESS THAN $200,000)
o PURCHASE AGREEMENT)
(MATERIALS, SUPPLIES, EQUIPMENT)
u REAL ESTATE DOCUMENT
(E.G.. RFH, RFP, RFQ)
o CONTRACT AMENDMENT AG#:
o CDBG
11( OTHER t(J!'- c...VM" t ^ "- f hJ (.u IV'-t_ t
5.
PROJECT NAME:
G(Y\f uJ__ H~'~ tt.AJ~ 1 DWrJ hof'N.
.:D_t~/~..~6rifdnlf (~
f(u~L1 /ruv-p'.JoL\L-Pj t f{ql.
6.
NAME OF CONTRACTOR:
ADDRESS:
SIGNATURE NAME:
TELEPHONE
TITLE
7. ATTACH ALL EXHIBITS AND CHECK BOXES 0 SCOPE OF SERVICES 0 ALL EXHIBITS REFERENCED IN DOCUMENT
[] INSURANCE CERTIFICATE 0 DOCUMENT AUTHORIZING SIGNATURE
8.
t'Jl\
TOTAL COMPENSATION $ n.__c}..f} (iNCLUDE EXPENSES AND SALES TAX, IF ANY)
(IF CALCULArED ON HOURLY LAROR CIIARGE - AITACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES)
REIMBURSABLE EXPENSE: n YES 0 NO IF YES, MAXIMUM DOLLAR AMOUNT: $
IS SALFS lAX OWED 0 YES 0 NO IF YES, $~.____.m_..
PAID BY: D CONTRACTOR 0 CITY
TERM: COMMENCEMENT DATE:
COMPLETION DATE:
9.
10.
CONTRACT REVIEW
~PROJECT MANAGER
[] DIRECTOR
[] RISK MANAGEMENT
[] LAW
INITIALIDAl APPRQYEI2
:) -~~-_.
~.-
INITIAL/DATE APPROVED
- ,1t~/oL.
,
11. CONTRACT SIGNATURE ROUTING
o LAW DEPARTMENT
CJ CITY MANAGER
~-CLERK
ZSIGN COPY BACK TO ORGINATING DEPT.
)i'fASSIGNED AG# 05' -.JO ___
o PURCHASING: PLEASE CHARGE TO:
INITIALfDATE APPROVr])
COMMENIS I I I
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10/09102
AG"it-O,'-70
CONCOMITANT AGREEMENT
BETWEEN THE CITY OF FEDERAL WAY AND DONALD L. GARDNER INC. FOR
DEVELOPMENT OF CAMPUS HIGHLANDS TOWNHOME PROPERTY (PARCEL 7)
MA Y _, 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
7").
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 the previous
owners, Polygon 2000 and Quadrant Corporation, in February 1990 regarding the zoning of
Campus Crest Property Parcel 7; and
WHEREAS, an additional amendment to the 1990 concomitant agreement via Resolution
93-144 altered the original conditions applicable to Parcel 7; and
WHEREAS, various terms of the 1990 concomitant agreement as amended are no longer
applicable to the proposed use and development of Parcel 7; and
WHEREAS, the Owner desires to develop Parcel 7 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 buffer area,
maximum density requirements, and right-of-way 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 ofthe 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 supersedes the 1990 concomitant agreement as amended by Resolution 93-144 as it
applied to Parcel 7.
2. Location. Donald L. Gardner Inc. is the owner of certain real property, King County tax
parcel numbers 192104-9008 and 192104-9043, situated in Federal W ay, Washington, located along
the west side ofSW Campus Drive south ofthe intersection at 1 Oth Avenue SW ("Parcel 7"). Parcel
7 is more particularly described on Exhibit A attached hereto and incorporated herein by this
reference.
3. Project Description. The Project consists of development of 114 single-family lots as
depicted on the Development Plan, attached hereto as Exhibit B (the "Development Plan").
4. Concomitant Agreement. If the allowed use of Parcel 7 is changed from multi-family to
single-family by the Federal Way City Council, Owner and the City agree that Parcel 7 may be
developed only in accordap.ce with the standards and mitigation set forth in the Agreement.
Parcel 7 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 7 shall be inconsistent with the Agreement or City
Code. Parcel 7 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 7 to
single-family residences, as depicted in the Development Plan, attached as Exhibit B.
5.2 Relationship Between City Development Regulations and Development Standards
Identified in Agreement. Development Regulations include all provisions ofthe 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 7, as
specified herein.
2
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 Proiect Design and Site Configuration.
6.1.1 Permitted Development. Owner agrees that development shall be of
single-family residences only. No other development will be allowed without an
amendment to this Agreement.
6.1.2 Buffer Open Space Tract. Owner agrees to provide an open space tract,
averaging 45 feet in width along SW Campus Drive, as depicted in the Development
Plan, attached as Exhibit B. City agrees that up to two percent (2%) ofthis tract will
qualify as buffer open space under FWCC 20-155.
6.1.3 Maximum Densitv. The maximum density for Parcel 7 shall be 114
single-family lots, as depicted in the Development Plan, attached as Exhibit B.
6.2 Right-of-wav Improvements. Owner shall perform, as part of Project construction
and prior to issuance of [mal 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 12th Avenue SW. The portion of lzth Avenue SW located within Parcel 7:
a. Dedicate 14 feet of Right-of-Way to the City. Right-of-Way dedication to be
via Statutory Warranty Deed.
b. Provide street improvements for the east side of the right-of-way: six-foot
planter strip with street trees and street lights, eight-foot concrete sidewalk,
and three-foot utility strip.
6.2.2 SW Campus Drive. SW Campus Drive, along Parcel 7 frontage:
a. Dedicate seven feet of Right-of- W ay to the City. Right-of- Way dedication to
be via Statutory Warranty Deed.
b. Construct additional asphalt paving to widen SW Campus Drive to provide for
a full-width Section 'E' Roadway per City Standards, complete with concrete
curb and gutter, six-foot planter strip with street trees and street lights, eight-
foot concrete sidewalk, and three-foot utility strip.
c. Provide sufficient new roadway tapers and transitions from the widened paved
edge at the property boundary.
7. Other Project Review Processes. 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
3
utilities, determination of access points, and other design issues will be determined during that
process and must be consistent with the Agreement and the Development Plan.
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 7 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 7 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 Law. This Agreement shall be governed by and interpreted in accordance
with the laws ofthe 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 7, 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 7.
9.5 Amendment. This Agreement maybe modified only by written instrument authurized by
the City Council and duly executed by the City Manager and Owner, and their successors and
4
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 7 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 is not vested at that time, pursuant to the prior submittal to the City of a
complete building permit application.
9.6 Exhibits. All exhibits attached hereto are incorporated herein by this reference as if fully
set forth herein.
9.7 Headings. 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 ofthis 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 material breach
ofthis Agreement by Owner, and after notice to the Owner and an opportunity for Owner to
cure the breach as set forth below, 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 7. 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 ofthe alleged default and the manner in which the default may be 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 ifthe party commences a cure within thirty (30)
days and, thereafter, diligently pursues completion ofthe 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.
5
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 ofthe City's police powers, the authority granted
under RCW 36.708.170-.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.
IN WITNESS WHEREOF the parties have hereunto placed their hand and seaIs on the day and
year indicated.
BY:
DONALD L. GARDNER INC.
~:~[j]lliL
Donald L. Gardner
President
Date: r;!t+~j
f I ~
TTEST: This~=aay of May 2005.
Date:
'5 - s-(:)5
Approved as to Form
for City of Federal Way:
6
STATE OF WASHINGTON
COUNTY OF ~~C'YlZ...
)
)ss.
)
On this day, personally appeared before me, the undersi ned, a Notary Public in and for
the State of Washington, duly commissioned and swom,bc""'-.O-.\ '--. a.Qv&. VV~V to me known
to be the~ rtS-; d.a~ofDonald 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 thatdi'Wshe is authorized to execute said instrument on behalf of said corporation,
Given under_~~,~,~~ and official seal this3,-L dayof ~ ,2005.
-'4e""oNEA 1.1:, tWCl
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(typed/printed name of notary)
Notary Public in and for the State
of Washington. \ j 1.'"+-t'J [ /"Ie.,
My commission expires:~
K:\CD\Campus Crest Concomitant
7
EXHIBIT A
TO CONCOMITANT AGREEMENT
LEGAL DESCRIPTION OF PARCEL 7
8
EXHIBIT" A" TO CONCOMITANT AGREEMENT
Legal Description
Those Portions ofthe Northeast Quarter of the Northwest Quarter and the Southeast Quarter
of the Northwest Quarter all in Section 19, Township 21 North, Range 4 East, Willamette
Meridian, in King County, Washington, said portions being more particularly described as
follows:
"Commencing at the west quarter corner of said Section 19, thence along the east/west
centerline of said Section 19 South 88052'22" East 1,282.94 feet to the Southwest corner
of the Southeast Quarter of said Northwest Quarter;
Thence along the west line thereof North 01013 '12" East 202.55 feet to the Northwesterly
line of that certain easement granted to the United States of America for electrical
transmission lines by documents recorded under recording numbers 3194572, 3258849
and 5029580, in King Country, Washington and the true point of beginning;
Thence continuing along said west line and the west line of said Northeast Quarter of
said Northwest Quarter north 01013 '12" east 1,502.83 feet to a point on the southerly
margin of the lands described in deed recorded under recording number 8501170665, in
King County, Washington, said point being on a curve concave to the northeast having a
radius of842.00 feet and to which point a radial line bears south 47011 '42" west;
Thence along said margin southeasterly and easterly 801.22 feet along said curve
through a central angle of 54031 '16" to the beginning of a reverse curve concave to the
southwest having a radius of 618.00 feet (a radial line through said beginning bears
north Or19'34" west);
Thence continuing along said margin easterly and southeasterly 647.38 feet along said
curve through a central angle of 60001 '11" to said northwesterly line of that certain
easement granted to the United States of America for electrical transmission lines by
document recorded under recording numbers 3194572, 3258849 and 5029580, in King
Country, Washington;
Thence along said northwesterly line south 5)058 '44" west 1,662.66 feet to the true point
of beginning. "
EXHIBIT B
TO CONCOMITANT AGREEMENT
DEVELOPMENT PLAN
9
EXHIBIT C
TO CONCOMITANT AGREEMENT
SECTION 6.2 RIGHT-OF-WAY IMPROVEMENTS
10
NOTES:
3'
PRfNCIPAL
.30' CLASS A
.85' CLASS E
.50' CSTC
PUBLIC WORKS
OEPARTMENT
12' '
3'
36'
70'
MfNfMUM SECTfiJN
MfNoR
.67' CLASS A
.50' CSTC
OR
.30' CLASS A
.85' A TB
COLLEC TOR
.50' CLASS A
.50' CSTC
OR
.30' CLASS A
.70' ATB
3 LANES
SECTION M
ARTERIAL/ COLLECTOR
DWG. NO.
.3-2M,
NOTES: '
12'
12'
~12' 16' 12'~
UlldIon
(where LT not nlleded)
64'
98'
MINIMUM
SECTION
MINOR
.67' CLASS A
.50' CSTC
OR
.30' CLASS A
.85' ATB
PRINCIPAL
.30' CLASS A
.85' CLASS E
.50' CSTC
, 4 LANES
+ MEDIAN
SECTION E
CAMPUS DRIVE swEXH'B'T
PAGE ;L OF
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~
PUBLIC WORKS
DEPARTMENT
ARTERIAL
DWG. NO.
3-2E
Return Address:
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p.O. go/<; <lll8
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111111111111 III nun
20050603001038
CAROLYN M BACK AG 83 00
PAGE001 OF 015 .
06/03/2005 13'48
KING COUNTY, WA
Please print or type information WASHINGTON STATE RECORDER'S Cover Sheet (RCW 65,04)
Document Title(s) (or transactions contained therein): (all areas applicable to your document must be filled in)
1. _~o(\~o~.l I..,..~ A ~)f" l rH'" ~ fur JI. ~./\I\ OJJ ~ttJ k/MJ) l()vl~::',^,OM,,-
,
3. ;J r .:.,;2" ~ 4.
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Reference Number(s) of Documents assigned or reIeased:
Additional reference #'s on page_ of document
Nit
Grantor(s) (Last name, first name, initials) (,1'1 r ~J.ud
1. -,---~~ ~~;d ~:zAJ~~v,[ ~nc. , 0 lAJ&;"j
2.
,
Additional names on page ~ of document.
Grantee(s) (Last name first, then first name and initials)
1. CI~~J8/ent-{LJfAJI ' ~.~~-'.... "" ~ ..,.~,-~.~'".._--
2. D . "" ,. ardner' I -/'Ii I , ~~..,~".".",. , ,,,.,.._,,~-,,,,,,.~-~~~
I
Additional names on page _ of document.
Legal description (abbreviated: i.e. lot, block, plat or section, township, range)
....",.,..-- ~ .~ / ~~oq~ .'''''''.''~,.', &~r_~.~'~_,._.~_
-~~"q /Th'1J ~ I
Additional legal is on page bh.b ~ document.
r A.
Assessor's Property Tax Parcel/Account Number o Assessor Tax # not yet
assigned Il1<2l o\.( -q()'-{J I ?1,;{1 O\.( -- <~JO{)g
,'-
The Auditor/Recorder will rely on the information provided on the form. The staffwiII not read the document to
verify the accuracy or completeness ofthe indexing information provided herein.
I am requesting an emergency nonstandard recording for an additional fee as provided in RCW
36.18.010. I understand that the recording processing requirements may cover up or otherwise
obscure some part of the text of the original document.
ignature of Requesting Party
6-1 ~or
CONCOMITANT AGREEMENT
BETWEEN THE CITY OF FEDERAL WAY AND DONALD L. GARDNER INC. FOR
DEVELOPMENT OF CAMPUS HIGHLANDS TOWNHOME PROPERTY (PARCEL 7)
MAYf.1, 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
7").
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 ,?f property within its jurisdiction; and
WHEREAS, a concomitant agreement was entered into between the City and the previous
owners, Polygon 2000 and Quadrant Corporation, in February 1990 regarding the zoning of
Campus Crest Property Parcel 7; and
WHEREAS, an additional amendment to the 1990 concomitant agreement via Resolution
93-144 altered the original conditions applicable to Parcel 7; and
WHEREAS, various terms of the 1990 concomitant agreement as amended are no longer
applicable to the proposed use and development of Parcel 7; and
WHEREAS, the Owner desires to develop Parcel 7 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 buffer area,
maximum density requirements, and right-of-way 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
1
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, ifthe 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 supersedes the 1990 concomitant agreement as amended by Resolution 93-144 as it
applied to Parcel 7.
2. Location. Donald L. Gardner Inc. is the owner of certain real property, King County tax
parcel numbers 192104-9008 and 192104-9043, situated in Federal Way, Washington, located along
the west side of SW Campus Drive south ofthe intersection at 1 Oth Avenue SW ("Parcel 7"). Parcel
7 is more particularly described on Exhibit A attached hereto and incorporated herein by this
reference.
3. Project Description. The Project consists of development of 114 single-family lots as
depicted on the Development Plan, attached hereto as Exhibit B (the "Development Plan").
4. Concomitant Agreement. If the allowed use of Parcel 7 is changed from multi-family to
single-family by the Federal Way City Council, Owner and the City agree that Parcel 7 may be
developed only in accordapce with the standards and mitigation set forth in the Agreement.
Parcel 7 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 7 shall be inconsistent with the Agreement or City
Code. Parcel 7 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 7 to
single-family residences, as depicted in the Development Plan, attached as Exhibit B.
5.2 Relationship Between City Development Regulations and Development Standards
Identified in Agreement. 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 7, as
specified herein.
2
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 Proiect Design and Site Configuration.
6.1.1 Permitted Development. Owner agrees that development shall be of
single-family residences only. No other development will be allowed without an
amendment to this Agreement.
6.1.2 Buffer Open Space Tract. Owner agrees to provide. an open space tract,
averaging 45 feet in width along SW Campus Drive, as depicted in the Development
Plan, attached as Exhibit B. City agrees that up to two percent (2%) of this tract will
qualify as buffer open space under FWCC 20-155.
6.1.3 Maximum Densitv. The maximum density for Parcel 7 shall be 114
single-family lots, as depicted in the Development Plan, attached as Exhibit B.
6.2 Right-of-wav 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 12th Avenue SW. The portion of 12th Avenue SW located within Parcel 7:
a. Dedicate 14 feet of Right -of-Way to the City. Right -of- W ay dedication to be
via Statutory Warranty Deed.
b. Provide street improvements for the east side of the right-of-way: six-foot
planter strip with street trees and street lights, eight-foot concrete sidewalk,
and three-foot utility strip.
6.2.2 SW Campus Drive. SW Campus Drive, along Parcel 7 frontage:
a. Dedicate seven feet of Right-of-Way to the City. Right-of-Way dedication to
be via Statutory Warranty Deed.
b. Construct additional asphalt paving to widen SW Campus Drive to provide for
a full-width Section 'E' Roadway per City Standards, complete with concrete
curb and gutter, six-foot planter strip with street trees and street lights, eight-
foot concrete sidewalk, and three-foot utility strip.
c. Provide sufficient new roadway tapers and transitions from the widened paved
edge at the property boundary.
7. Other Project Review Processes. The Project will be subject to preliminary plat approval,
engineering plan review, final plat approval, and any other applicable review processes. The final
design ofthe buildings and other improvements, precise location of building footprints, location of
3
utilities, determination of access points, and other design issues will be determined during that
process and must be consistent with the Agreement and the Development Plan.
8. Waiver and Mutual Release of Claims of Invalidity. The City and Owner acknowledge
and represent that the terms of this Agreement have been j ointIy 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 7 and to protect the public health, safety, and welfare ofthe
City. Therefore, the covenants set forth herein shall be construed to and do touch and
concern Parcel 7 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 Law. This Agreement shall be governed by and intetpreted 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 ofthis 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 7, 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 7.
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
4
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 7 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 is not vested at that time, pursuant to the prior submittal to the City of a
complete building permit application.
9.6 Exhibits. All exhibits attached hereto are incorporated herein by this reference as if fully
set forth herein.
9.7 Headings. 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 ofthis 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 material breach
ofthis Agreement by Owner, and after notice to the Owner and an opportunity for Owner to
cure the breach as set forth below, the City may enforce this Agreement under the
enforcement provisions of the Federal Way City Code in effect at the time ofthe breach,
and/or it may terminate this Agreement and take action to amend the Comprehensive Plan
and zoning designation of the Parcel 7. 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 may be 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 ifthe party commences a cure within thirty (30)
days and, thereafter, diligently pursues completion of the cure.
9.10 Attornevs 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.
5
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-.21 0, 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 ofthe
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.
IN WITNESS WHEREOF the parties have hereunto placed their hand and seals on the day and
year indicated.
CITY OF FEDERAL WAY,
a Wm' ..... 0 m.~ic..i............l corporation..,....._'
, ...,] /
BY: /(!~"
David H. Moseley, City Mana er
DONALD L. GARDNER INe.
::~Q]lk
Donald L. Gardner
President
Date: c;j; :J~ j----
f ( ~
~ATTEST: This! /-;rayofMay2005.
Date:
r:>_ '5-(::)5
Approved as to Form
for City of Federal Way:
6
STATE OF WASHINGTON
COUNTY OF ~ \,J-;(v-LL
)
)ss.
)
On this day, personally appeared before me, the undersi ed, a Notary Public in and for
the State of Washiqgton, duly commissioned and swom,Dt; \'-t\. ~, L bo if (~ n ~ v to me known
to be the~ cO.., c([-\..t'"ofDonald 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 thatdl&she is authorized to execute said instrument on behalf of said corporation.
^
'-, ,J\;
Given under my hand and official seal this/""":) \"_- day of \\\0-->--j
t l(J Q .~? ---
(notWRReRrre)
,2005.
(typed/printed name of notary)
Notary Public in and for the State
of Washington. . ,
My commission eXPires:~ att (C<-r
K:\CD\Campus Crest Concomitant
7
EXHIBIT A
TO CONCOMITANT AGREEMENT
LEGAL DESCRIPTION OF PARCEL 7
8
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EXHIBIT "A" TO CONCOMITANT AGREEMENT
Legal Description
Those Portions of the Northeast Quarter of the Northwest Quarter and the Southeast Quarter
of the Northwest Quarter all in Section 19, Township 21 North, Range 4 East, Willamette
Meridian, in King County, Washington, said portions being more particularly described as
follows:
"Commencing at the west quarter corner of said Section 19, thence along the east/west
centerline of said Section 19 South 88052'22" East 1,282.94 feet to the Southwest corner
of the Southeast Quarter of said Northwest Quarter;
Thence along the west line thereof North 01013 '12" East 202.55 feet to the Northwesterly
line of that certain easement granted to the United States of America for electrical
transmission lines by documents recorded under recording numbers 3194572, 3258849
and 5029580, in King Country, Washington and the true point of beginning;
Thence continuing along said west line and the west line of said Northeast Quarter of
said Northwest Quarter north Or13 '12" east 1,502.83 feet to a point on the southerly
margin of the lands described in deed recorded under recording number 8501170665, in
King County, Washington, said point being on a curve concave to the northeast having a
radius of842.00 feet and to which point a radial line bears south 4r11 '42" west;
Thence along said margin southeasterly and easterly 801.22 feet along said curve
through a central angle of 54031 '16" to the beginning of a reverse curve concave to the
southwest having a radius of 618.00 feet (a radial line through said beginning bears
north 070]9'34" west);
Thence continuing along said margin easterly and southeasterly 647.38 feet along said
curve through a central angle of 60001 '11" to said northwesterly line of that certain
easement granted to the United States of America for electrical transmission lines by
document recorded under recording numbers 3194572, 3258849 and 5029580, in King
Country, Washington;
Thence along said northwesterly line south 5)058 '44" west 1,662.66 feet to the true point
of beginning. "
EXHIBIT B
TO CONCOMITANT AGREEMENT
DEVELOPMENT PLAN
9
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EXHIBIT C
TO CONCOMITANT AGREEMENT
SECTION 6.2 RIGHT-OF-WAY IMPROVEMENTS
10
NOTES,
3'
Strip
36'
70'
MINIMUM SECTION
PRINCIPAL
.30' CLASS A
.85' CLASS E
.50' CSTC
MINOR
.67' CLASS A
.50' CS TC
DR
.30' CLASS A
.85' A TB
3 LANES
SECTION M
12TH AVENUE SW I
PU8L1C WORKS
DEPARTMENT
12'
3'
COLLECTOR
.50' CLASS A
.50' CSTC
OR
.30' CLASS A
.70' ATB
EXHIBIT G
PAGE-LOF ~
ARTERIAL/COllECTOR
DWG. NO.
3-2M
,3'
6'
12'
,3'
th. SIdewalk Planter
Strip
/----12' 16' 12'----1
....dian
(where LT not needed)
64'
98'
MINIMUM
SECTION
MINOR
.67' CLASS, A
.50' CSTC
OR
.30' CLASS A
.85' ATB
PRINCIPAL
.30' CLASS A
.85' CLASS E
.50' CSTC
.4 LANES
+ MEDIAN
SECTION E
NOTES: '
CAMPUS DRIVE swEXHIBIT
PAGE .... OF
c..
,~
PUBLIC, WORKS
DEPARTMENT
, AR'TERIAL
owe. NO.
3-2E