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AG 05-070 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 ;Ib.ll.. (O^((Jf\Il, tf:u_f\_gLe.i.. r(\€^"~ 58(\1' dj) 1 J{-L D O^ ~ :260 c;- 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 - l;."p" 'I, ' '\........... ~ ..:i"~f.:,.......:..>.. 1'1 . w ~---- .. \; .' ,Ot-l 0.,0 '. " (' .l ' ~'~00" BY 0~.... '~ not'1DWARN!RIre) i !!:J: o'\~' U"l\ _ ~ ",' : -<: ";~ ,.<'fI' : Z , ~ :0 d'r',{j :.0: ~,., \ 0 p0'Ov _:' f-. ;:.' / '-'. ,.'f.l,: !;'J :;/ ',' 0. '-'. "<:? ',' ".... 1'1 '2.,''-".' ;;' 111 I~?,. .......H'~.."... S -(': II \ --';}'I~ \j-.l ~", ~-- li\ '. OF '0- '\ \\\'\."".;.~\,:,,........... (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 c.. ~ PUBLIC WORKS DEPARTMENT ARTERIAL DWG. NO. 3-2E Return Address: L I ~ Y 0 ~ (ul //(,. ( \--0('1 J;rv- tlc..u,J p.O. go/<; <lll8 Fulerd \A)r.:,'f ,\.--->"" <)JDI,.3 ~7/j' 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. I , 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 \, a'\'" .R~I.~.:. .~:".~"", c .......,~~. ( ~" ,)',r\"; ) ,) ..' '.~'.'#"'" >' ". ).., ...'. ! ".",' ... 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 ~,~ ~, :,", W...",-" ,. "", '. '" 'i~li'.~:" 1.'1>, ~:'-"':'I\-1Io;,~'.' ':'~'" -.",l'." ~'" ,,)' ,.,:'~ h ,) .\ " r---- ---- ~~~~-~a~~~~~~ ~ ~ q I~i~~;!~~~~~i i n ~~~ ~ u m~i~~~H~~i ~ ~~~~~~~~~~~~~ ~:~ *- Ij ! 111~!pi !lijil illillli !i ill ill! ~ !; II! :1 :1 ~ II i !1!!iIUkh ilil!:!! !! i~ 1111 I i II! MI ~ I~ i ;~~Ii;~~ ~:.~~ I~g;il~i ~I ~~~ ~~~ ~~ ~ ~! i~ ~ ~ III Ilb,l! llj!l j!N;! 11111 II, I, I ~ ~: I 1~1!:m~~ I~~~! ~~~i~i~ ~ i~1 ;;~ I ~ ~~~~ ~~~r~l ~~ ':, ~!t'!IIII!P I:.! iI, !!I 'Ii i ' !'lri ! 'I ~ ~ l:)fil ij ~~il ~I ~ ~MI; ~~i ~ ~~ ~ ; ""~ :i~~ ~I~~ ~~ ~d ~ ~ !:~ ~ ~ ~ ~ ~ ~dl q ~ ~~ "~~ I ;~~ ;;, tal \'>'1>1-':>- !Q i: :::t'-b1C',.) ~ ~ "-l ~ S II E mln~Gi~iU ;g!1 jl;1 ~~lmr~~ o lil~ ~1t41~~~i~' ~iii ~d ~ gUi~~ ~~ ~ hil~h; Igl~i ~~~~ ~I~~ 8 !!tiia csq ~ illl,!I,lji III!;I :tIll!! ~ ~ · ~~ ~ ! Ill,!l!!! li'jl! III Pil ~' ~~ ~ lil~e~f~i I~tu~ i. I~q ~;!~ "'~ g !~~!i!~~~ ~~i~~:!i~!~ :~! ~I~; ~~ ~~i\'l~ ~ ~~3~ Q ~:;:.; ~~~~~ ~ !II~ ~ ~ ~ , lilld ~ ~;';I ~ ,,~ ~ e~" ~ ~i~ ~ ~ "\; , ~ ~ ~ ill ""';u:;g":!!" ~~~n;i;~ ~h"'Io'~~J ~~~ ~~~~~ .....~tn :tI ~m.,,1o' o~~~~ cl:( r":t )i.i''l.10'10' trm:!i!tlJl <:>::;S1"'~ III ~ Io'"",~ 0 ~ i!i~" ~ :::i ~~~" ~I;!;! -0 o ;u o "T\ -l :t m z m .. ...... ,. J> Z o III m .. ...... ,. o "II -l :t m z :e .. ...... ,. o "II rn m ('l .. !P -l :e -0 !::1 ~ ;u G) m ,. .m :e ~ \, 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