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AG 05-071 DATE IN: DATE OUT: TO: CITY OF FEDERAL WAY LAW DEPARTMENT ORIGINATING DEPT./DIV:,_ ~ ORIGINATING STAFF PERSON:----.3I""':'-:. ~l.4 (ut /) TYPE OF DOCUMENT REQUESTED (CHECK ONE) o PROFESSIONAL SERVICE AGREEMENT o MAINTENANCE/LABOR AGREEMENT [J PUBLIC WORKS CONTRACT o SMALL PUBLIC WORKS CONTRACT TERM: COMMENCEMENT DATE:_u~ A { ~/ \ \ u\ I)J 6\\ . REQUEST FOR CONTRACT PREPARATION/DOCUMENT REVIEW/SIGNATURE ROUTING SLIP 9. 10. (LESS THAN $200,000) o PURCHASE AGREEMENT) (MATERIALS, SUPPLIES, EQUIPMENT) o REAL ESTATE DOCUMENT PROJECT NAME: ~)" pjS 10/1-( fc.. ((" f l s--'3 / NAME OF CONTRACTOR: ~l J L. GKtrcin.tr-1 tt[ . ADDRESS:.. ~:r--ft .... -"_." -. '__ SIGNATURE NAME: _L- 05 /Pl'-'(\^I'~ il/t.{t1t_ EXT: :2J,cLll~ 3. DATE REQ. BY___ o SECURITY DOCUMENT (E.G. AGREEMENT & PERFIM AIN BOND; ASSIGNMENT OF FUNDS IN UEU OF BOND) o CONTRACTOR SELECTION DOCUMENT (E_G_, RFB, Rfp, RFQ) o CONTRACT AMENDMENT AG#: o CDSG ~THER CotJ cliM.t,...1 4!J f',-{( ~ t- (Q~ COf'V'.t., t. -", . ,~..~. TELEPHONE ""-- TITLE -,"~..,_..- --~- 7. ATTACH ALL EXHIBITS AND CHECK BOXES 0 SCOPE OF SERVICES ~ ALL EXHIBITS REFERENCED IN DOCUMENT o INSURANCE CERTIFICATE 0 DOCUMENT AUTHORIZING SIGNATURE COMPLETION DATE: T01AL COMPENSATION $ __w_ ~ l1 (INCLUDE EXPENSES AND SALES TAX, IP ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: 0 YES 0 NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED 0 YES 0 NO IF YES, $~. CONTRACT REVIEW lIl(PROJECT MANAGER o DIRECTOR o RISK MANAGEMENT o LAW 1. 2. 4. 5. 6. 8. PAID BY: 0 CONTRACTOR 0 CITY ATE APPROVED INITIAL/DATE APPROVED s/' r...-{6f '~"----~~ 11. CONTRACT SIGNATURE ROUTING o LAW DEPARTMENT [j CITY MANAGER (.o.-erfYC:LERK ~SIGN COpy BACK TO ORGINATING DEPT y""ASSIGNED AG#-D-'2-il "_ o PURCHASING: PLEASE CHARGE TO: COMMENTS 10/09/02 'fA I) ((jrJ C UN;.! c'A t __ d ej-( (v(Ui' . W Cij,.._. . I L> j J ; f PR50lJ1lCA OS-- INITIAL/DATE APPROVED 51 S' 1\ ~ J ~(l.d ( f ifu r (Ie J h y..., IA-e (UlJ-{ pi b elV/'- L L'( .J' '^'" Ac::/" 05-7 f CONCOMITANT AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND DONALD L. GARDNER INC. FOR DEVELOPMENT OF WYNSTONE PROPERTY (PARCEL 5B) 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 ("Parce15B"). WHEREAS, the City of Federal Way, Washington, a non-charter optional municipal code city incorporated under the laws of Washington, has authority to enact laws and enter into agreements to promote the public health, safety, and general welfare of its citizens and thereby control the use and development of property within its jurisdiction; and WHEREAS, a concomitant agreement was entered into between the City and Polygon in February . 1990 regarding the zoning of Campus Crest Property Parcel 5, which included the Property subject to this Agreement; and WHEREAS, an amendment to the 1990 concomitant agreement via Resolution 93-128 split the Campus Crest Property Parcel 5 into two parcels referred to as Parcel5A and 5B and removed parcel5A from the terms of the 1990 concomitant agreement; and WHEREAS, an additional amendment to the 1990 concomitant agreement via Resolution 93-144 altered the original conditions applicable to Parcel 5B; and WHEREAS, various terms of the 1990 concomitant agreement as amended are no longer applicable to the proposed use and development ofParcel5B; and WHEREAS, the developer working with Polygon desires to develop Parcel 5B in a manner different than what is allowed in the 1990 concomitant agreement as amended and has initiated a discussion with the City with respect to amending the 1990 concomitant agreement; and WHEREAS, both Parties agree that a new Agreement is appropriate; and WHEREAS, the City wishes to preserve its rights under the 1990 concomitant agreement as amended, including development being restricted to residential use, predetermined setbacks, maximum density requirements, and right-of-way improvements; and WHEREAS, both Parties seek clarification regarding the construction of the loth Avenue SW extension and SWCampus Drive improvements; and NOW THEREFORE, in consideration of the mutual promises and obligations set forth herein, it is hereby covenanted and agreed by and between the Parties hereto as follows: 1 1. Description of Agreement. This Agreement is a concomitant agreement that allows for a change in the allowed use of certain property subject to a previous concomitant agreement, as well as, development standards and conditions governing the use of the property. The Agreement provides the developer with certainty regarding the local regulations and mitigation requirements that will govern development for a specified project. The concomitant agreement is a condition to and limitation upon the change of use of the property, if adopted by the City Council. That is, if the allowed use is changed subject to concomitant agreement, its use and development is restricted both by the regulations applicable to the underlying zoning classification and the provisions of the concomitant agreement, and where development standards in the agreement are more restrictive, they govern property development. The development of the property is conditioned and limited by the concomitant agreement. This Agreement supercedes the 1990 concotnitant agreement as amended by Resolutions 93-128 and 93~144 as it applied to Parcel 5B. 2. Location. Donald L. Gardner Inc. is the owner of certain real property, King County tax parcel number 192104-9044, situated in Federal Way, Washington, located along the southwest side of Campus Drive at the intersection of 10th Avenue SW ("ParceI5B"). Parcel5B is more particularly described on Exhibit A attached hereto and incorporated herein by this reference. 3. Project Description. The Project consists of development of 44 single family lots and one acre of multi-family units as depicted on the Development Plan, attached hereto as Exhibit B (the "Plan" or "Development Plan"). The Plan encompasses a larger area ofreal property than is covered by this Agreement. It is the intention of the Parties that the terms of this Agreement do not apply to the entire area of real property encompassed by the Plan, but only to Parcel 5B 'as described above in Section 2. 4. Concomitant Agreement. If the allowed use ofParcel5B is changed from exclusive multi- family to both single-family and multi-family by the Federal Way City Council, Owner and the City agree that Parcel 5B may be developed only in accordance with the standards and mitigation set forth in the Agreement. Parcel 5B shall be developed as described in the Agreement, and as depicted in the Development Plan. The allowable use of the property shall be limited to that described in the Agreement. All development standards, including mitigation, identified in the Agreement shall apply to property development. No development on Parcel 5B shall be inconsistent with the Agreement or City Code. Parcel 5B is subject to the Agreement, and shall be developed only in accordance with the development standards identified within the Agreement, including the Development Plan, unless and until the Agreement is amended or rescinded, as authorized by the City. 5. Development of Property. 5.1 Permitted Uses. Owner covenants and agrees that it will limit any use of Parcel 5B to single~ family and multi-family residences, as depicted in the Development Plan, attached as Exhibit B. 5.2 Relationship Between City Development Regulations and Development Standards Identified in 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 5B, as specified herein. 2 6. Development Standards, Including Mitigation. The Project shall be consistent with all specified development standards. Owner shall construct, install or impIement, 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 residences only. Both single-family and multi-family development will be permitted, but no other development will be allowed without an amendment to this Agreement. 6.1.2 Building Setback. All site improvements, except utilities, right-of-way improvements, and entry signage, shall be setback from SW Campus Drive a minimum of 60 feet as depicted in the Development Plan, attached as Exhibit B. 6.1.3 Maximum Density. The maximum density for the one acre multi-family portion of Parcel SB, as designated in the Development Plan, shall be l6-units. 6.2 Right-of-wav Improvements. Owner shall perfonn, as part of Project construction and prior to issuance of final plat approval unless othetW:ise 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 10th Avenue SW. That portion of 10th Avenue SW located within ParcelSB: a. Dedicate the full 70 feet Right-of-Way to the City. Right-of-Way dedication to be via Statutory Warranty Deed. Additional right-of-way, dedicated by the City Parks Department and additional slope easement, will be necessary to complete the full- width dedication to SW Campus Drive. b. Clear and grade the entire 70 feet right-of-way limits, required for the full street improvements, including clearing and grading outside the right-of-way, sufficient to provide a 2: 1 slope, and as identified and allowed by the geo-technical report, from the westerly right-of-way to top of slope. c. Stabilize and control erosion of the graded area, outside the westerly edge of the hard- surface street improvements. d. Grant a slope easement to the City, where needed, for the graded area that falls outside the westerly right-of-way limit. e. Provide street improvements for the east half of the right-of-way, as measured from the centerline: 18-foot paved roadway (centerline to face of curb), curb and gutter, six- foot planter strip with street trees and street lights, eight-foot sidewalk, and three-foot utility strip. f. Provide street improvements for the west half of the right-of-way, as measured from the centerline: six-feet of paved roadway, plus thickened-edge, and provisions for drainage. The crown of the roadway pavement shall be located at the right-of-way centerline, in anticipation of the future 36-foot pavement section. g. Construct asphalt roadway taper, at a 25: 1 ratio, where the roadway section transitions from the 36-foot roadway section within Tax Lot 30, to the 24-foot roadway section within Tax Lot 44 (Parcel 5B). 3 6.2.2 SW Campus Drive. SW Campus Drive, southeast of 10th Avenue SW, along Parcel 5B frontage: a. Dedicate seven feet of Right-of-Way to the City. Right-of-Way dedication to be via Statutory Warranty Deed. b. Provide additional asphalt paving to create a twelve-foot wide left-turn pocket to access 10th Avenue SW from SW Campus Drive per City Standard Roadway Section 'E', with concrete curb and gutter, six-foot planter strip with street trees and street lights, eight-foot sidewalk, and three-foot utility strip. c. Provide sufficient new roadway taper east from the widened paved edge at the easterIy property boundary. 6.2.3 Intersection of 10th Avenue SW and SW Campus Drive: a. Extend existing curb, gutter, planter strip, and sidewalk around the radius to the southwest, terminating at the end of the curb return at the NW quadrant of intersection. This section of the new 10th Avenue SW roadway, including pavement width, shall be constructed to the City's Type 'M' street section. b. Construct asphalt paved taper, at a 25: 1 ratio within the new 10th Avenue SW right-of- way, from the end ofthe curb return, to meet the proposed 24-foot paved roadway section, described above. c. Construct City-standard handicap access ramps at the NW and SW quadrants of the intersection. d. Add channelization in SW Campus Drive to create a left turn lane onto 10th Avenue SW, into the proposed plat ofParce15B. e. ' Revise the left turn marking for traffic on the existing leg of 1 Oth Avenue SW so that it will be a combined thru and left turn pavement marking (WSDOT Type 3L marking). f. Provide channelization for the new section of 1 Oth Avenue S W marked for two lanes of traffic: one lane westbound, with the southerly lane allowing for thru-, left, and right-turns. g. Provide signal modifications, including, but not limited to, wiring and conduit, loops, new signal poles, mast arms, etc., to the existing traffic signal system to be coordinated with City Traffic Division for all required modifications. 7. Other Project Review Processes. 7.1 Sinlrle-Family Portion. The single-family portion of the Project will be subject to preliminary plat approval, engineering plan review, final plat approval, and any other applicable review processes. The final design of the buildings and other improvements, precise location of building footprints, location of utilities, determination of access points, and other design issues will be determined during that process and must be consistent with the Agreement and the Plan. 7.2 Multi-Family Portion. The multi-family portion of the Project will be subject to site plan and design review pursuant to the design requirements outlined in the FWCC and any other applicable review processes. The final design of the buildings and other improvements, precise location of building footprints, location of utilities, determination of access points, and other design issues will be determined during that process and must be consistent with the Agreement and the Plan. 4 8. Waiver and Mutual Release of Claims of Invalidity. The City and Owner acknowledge and represent that the terms of this Agreement have been jointly negotiated and that each party enters into this Agreement voluntarily. Further, Owner and the City agree that this Agreement is authorized under law and each party waives any claim that the Agreement is invalid or illegal. The agreements and representations in this Section are material to this Agreement and are being relied upon by both Parties. 9. General Provisions. 9.1 Binding on Successors. 9.1.1 The Agreement shall bind and inure to the benefit of the Parties and their successors in interest, and may be assigned to any successor in interest to the Project property. 9.1.2 This Agreement is intended to protect the value of, and facilitate the use and development of, Parce15B and to protect the public health, safety, and welfare of the City. Therefore, the covenants set forth herein shall be construed to and do touch and concern Parcel 5B and the benefits and burdens inuring to Owner and to the City from this Agreement shall run with the land and shall be binding upon Owner, its heirs, successors, and assigns, and upon the City. 9.2 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington. Venue for any action to enforce the terms of this Agreement shall be in King County Superior Court. 9.3 Severability. The provisions of this Agreement are separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of this Agreement, or the validity of its application to other persons or circumstances. 9.4 Authority. The City and Owner each represents and warrants to the other that it has the respective power and authority, and is duly authorized, to execute and deliver this Agreement and that the persons signing on its behalf are duly authorized to do so. Owner further represents and warrants that it is the fee owner ofParcel5B, that it has authority to agree to the covenants and provisions contained herein, and that there are no other persons, entities, or parties with any fee interest in Parcel 5B. 9.5 Amendment. This Agreement may be modified only by written instrument authorized by the City Council and duly executed by the City Manager and Owner, and their successors and assigns; provided, however, notwithstanding the provisions of this Agreement to the contrary, the City of Federal Way may, without the agreement of Owner, adopt and impose upon Parcel5B 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 ofthe execution ofthe Agreement, the City may elect, without the agreement of Owner, to apply development regulations in effect at that time to any development within the scope of the Agreement that has not been completed at that time. 9.6 Exhibits. All exhibits attached hereto are incorporated herein by this reference as if fully set forth herein. 9.7 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. 5 9.8 Integration; Scope of Agreement. This Agreement and its exhibits represent the entire agreement ofthe 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 applic,,!-ble 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 ofthe Directors ofthe Departments of Community Development Services and/or Public Works. 9.9 Enforcement. Subject to the notice and cure provisions of this section, in the event either party fails to satisfY any of its obligations under this Agreement, the other party shall have the right to enforce this Agreement by an action at law for damages or in equity for specific performance. The Parties acknowledge that damages are not an adequate remedy for breach by either party. In addition to the remedies set forth herein, in the event of a breach of this Agreement by Owner, the City may enforce this Agreement under the enforcement provisions of the Federal Way City Code in effect at the time of the breach and/or it may terminate this Agreement and take action to amend the Comprehensive Plan and zoning designation of the Parcel 5B. No party shall be in default under this Agreement unless it has failed to perform its duties or obligations under this Agreement for a period of thirty (30) days after written notice of default from the other party. A notice of default shall specifY the nature of the alleged default and the manner in which the default 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 if the party commences a cure within thirty (30) days and, thereafter, diligently pursues completion of the cure. 9.10 Attornevs Fees. ill any action brought to enforce this Agreement or for damages resulting from a breach thereof, the prevailing party as determined by the court, shall be entitled to recover its reasonable attorneys' fees. 9.11 Police Power. Nothing in this Agreement shall be construed to diminish, restrict or limit the police powers of the City granted by the Washington State Constitution or by general law. This Agreement is an exercise ofthe City's police powers, the authority granted under RCW 36.70B.170- .210, and other laws. 9.12 Recording; Assignment. The Agreement shall be recorded with the Real Property Records Division ofthe 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. 6 IN WITNESS WHEREOF the parties have hereunto placed their hand and seals on the day and year indicated, DONALD L. GARDNER INC., a Washington cOi;tfi BY: /JJI~ Donald L. Gardner President Date: [;11"'+(0:j , , 5 '- ~- <;)5 Date: Approved as to F onn for City of Federal Way: STATE OF WASHINGTON COUNTY OF 1aMG \J\ e"<' l..J.- ) )ss. ) On this day, personally appeared before me, the undersigned, a Notary Public in and for the State, of Washington, duly commissioned and swom;boV\(l~i. \...., ~llvl~evto me known to be the~\e.s;d.c"\..{.,r- of Donald L. Gardner Inc., a Washington corporation, the corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated thaQi.eVshe is authorized to execute said instrument on behalf of said corporation. Given under m~ l>Iwll,and official seal thi,3 vJl~ day of M<1v.) , 2005. ~,,~.... "1\ "'I lli ,:-~:~L ~~~I~,.~.~(-? <I,.", ~ ~~, ....-;> \ .~r...~;\()I\! I'....."'c~~~; ~~ ;; ,':S;'>' "~'~', 'if (rw,1rARtsfture) \<;,~;~~~::',\:11 ~;E:::~ :~~;f~~~te II\\~..~~,\:~~:,::,.';:--'- My commission expires:~ 7 EXHIBIT A TO CONCOMITANT AGREEMENT LEGAL DESCRIPTION OF PARCEL 5B 8 Exhibit A Plat of Wynstone Federal Way, Washington LEGAL DESCRIPTION: PARCEL 1: That portion of Government Lot 1, Section 19, Township 21 North, Range 4 East, W.M., records of King county, Washington, said portion being more particularly described as follows: Commencing at the Northwest comer of said Section 19; THENCE along the North line thereof South 89000'18" East 335.78 feet: THENCE South 01035' 16" West 42.00 feet to the Southerly margin of the lands described in deed recorded under Recording No. 8501170665, records of King County, Washington; THENCE along said Southerly margin South 89000' 18" East 18.07 feet to the beginning of a curve concave to the Southwest having a radius of 658.00 feet; THENCE Easterly and Southeasterly 700.54 feet along said curve through a central angle of 60059' 59"; THENCE South 28000' 19" East 422.43 feet to the true point of beginning and the beginning of a curve concave to the Northeast having a radius of 842.00 feet; THENCE Southeasterly 217.49 feet along said curve through a central angle of 14047'59" to a radial line of said curve which bears South 4rll '42" West; THENCE leaving said margin along the non-tangent East line of said Government Lot South 01013' 12" West 390.17 feet to the Southeast comer thereof; THENCE along the South line of said Government Lot North 88059'20" West 561.92 feet to the beginning of a non-tangent curve concave to the Southeast having a radius of 897.03 feet (a radial line through said beginning bears North 74048'34" West); THENCE Northerly and Northeasterly 732.77 feet along said curve through a central angle of 46048' 15" to the true point of beginning. Situate in the County of King, State of Washington. Tax Parcel No. 192104-9044-09 LEGAL DESCRIPTION (continued): PARCEL 2: That portion of Govemment Lot 2 in Section 19, Township 21 North, Range 4 East, W.M., lying Northerly of a line beginning on the Westerly line of said Govemment Lot at a point 412.00 feet Southerly of the Northwest comer thereof; THENCE East to the Easterly line of said Govemment Lot; EXCEPT the Westerly 264.00 feet thereof; AND EXCEPT that portion thereof described as follows: Commencing at the Northwest comer of the Southwest quarter of the Northwest quarter of said Section 19; THENCE South 89027'31" East along the North line thereof, a distance of 264.0 1 feet to the point of beginning; THENCE continuing South 89027'31" East, a distance of 298.22 feet; THENCE South 21047'27" West, a distance of 122.98 feet; THENCE South 70008'00" West, a distance of 83.38 feet; THENCE South 53044'33" West, a distance of 164.46 feet; THENCE North 36015'27" West, a distance of 44.74 feet to the beginning ofa 340.00 foot radius curve the center of which bears South 53044'33" West; THENCE Northwesterly along said curve trough a central angle of 05000'38", an arc distance of29.73 feet; THENCE North 01006'36" East parallel with the West line of the Southwest quarter of said Northwest quarter, a distance of 183.39 feet to the point of beginning. Situate in the County of King, State of Washington. Tax Parcel No. 192104-9030-05 PARCEL 2A: An easement for ingress and egress over the South 30 feet of the West 264 feet ofthe North 412 feet of Govemment Lot 2, section 19, Township 21 North, Range 4 East, W.M., records of King County, Washington Situate in the County of King, State of Washington EXHIBIT B TO CONCOMITANT AGREEMENT DEVELOPMENT PLAN 9 Return Address: ('ily o~- r~ (1 (ird _TI,."... ~lOt( (I'f y. 0, L 01\ "Ill'i3 Feci etc\ l w(lj wA \JJl\j 111111111111 UIIIIIII 20050603001039 CAROLYN M BACK AG se.01 PAGElll OF 118 le/13/Z01S 13:48 KING COUNTY, WA clgUlJ,J t:.n/~ Please print or type information WASHINGTON ST ATE RECORDER'S Cover Sheet (RCW 65.04) Documen t Title(s ) (or transactions contained therein): (all areas applicable to your document must be filled in) 1. COI'-(ON"~VI'-~ Aj re("rv'\l....J Lr ~ Wi,..J5tuA-e f(ii~/,ft \ 3. 4. Reference Number(s) of Documents assigned or released: Additional reference #'s on page _ of document rJlL ,--.CLfy ~ FeoliWZll l!1etu 1 , Additional names on page _ of document. Additional names on page _ of document. Legal description (abbreviated: i.e. lot, block, plat or section, township, range) 5-u. '2'x k. b ,~ ~ . . I L ~------ ,See. I tq T wn ~.t (2e,f 0'1 Additional legal is on page ~ ~f document. Assessor's Property Tax Parcel/Account Number assigned o Assessor Tax # not yet \9d.lo\.{ - qO~LI I 10210Y" <1030 The AuditorlRecorder will rely on the information provided on the form. The staffwill not read the document to verifY the accuracy or completeness ofthe indexing information provided herein. I am requesting an emergency nonstandard recordingfor 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 0 iginal docume Signature of Requesting Party - I - oS- CONCOMITANT AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND DONALD L. GARDNER INC. FOR DEVELOPMENT OF WYNSTONE PROPERTY (PARCEL SB) MAya, 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 58"). WHEREAS, the City of Federal Way, Washington, a non-charter optional municipal code city incorporated under the laws of Washington, has authority to enact laws and enter into agreements to promote the public health, safety, and general welfare of its citizens and thereby control the use and development of property within its jurisdiction; and WHEREAS, a concomitant agreement was entered into between the City and Polygon in February 1990 regarding the zoning of Campus Crest Property Parcel 5, which included the Property subject to this Agreement; and WHEREAS, an amendment to the 1990 concomitant agreement via Resolution 93-128 split the Campus Crest Property Parcel 5 into two parcels referred to as Parcel 5A and 58 and removed parcel SA from the terms of the 1990 concomitant agreement; and WHEREAS, an additional amendment to the 1990 concomitant agreement via Resolution 93-144 altered the original conditions applicable to Parcel 58; and WHEREAS, various terms of the 1990 concomitant agreement as amended are no longer applicable to the proposed use and development ofParcel5B; and WHEREAS, the developer working with Polygon desires to develop Parcel 5B in a manner different than what is allowed in the 1990 concomitant agreement as amended and has initiated a discussion with the City with respect to amending the 1990 concomitant agreement; and WHEREAS, both Parties agree that a new Agreement is appropriate; and WHEREAS, the City wishes to preserve its rights under the 1990 concomitant agreement as amended, including development being restricted to residential use, predetermined setbacks, maximum density requirements, and right-of-way improvements; and WHEREAS, both Parties seek clarification regarding the construction of the 10th Avenue SW extension and SWCampus Drive improvements; and NOW THEREFORE, in consideration of the mutual promises and obligations set forth herein, it is hereby covenanted and agreed by and between the Parties hereto as follows: 1 1. Description of Agreement. This Agreement is a concomitant agreement that allows for a change in the allowed use of certain property subject to a previous concomitant agreement, as well as, development standards and conditions governing the use of the property. The Agreement provides the developer with certainty regarding the local regulations and mitigation requirements that will govern development for a specified project. The concomitant agreement is a condition to and limitation upon the change of use of the property, if adopted by the City Council. That is, if the allowed use is changed subject to concomitant agreement, its use and development is restricted both by the regulations applicable to the underlying zoning classification and the provisions of the concomitant agreement, and where development standards in the agreement are more restrictive, they govern property development. The development of the property is conditioned and limited by the concomitant agreement. This Agreement supercedes the 1990 concomitant agreement as amended by Resolutions 93-128 and 93-144 as it applied to Parcel SB. 2. Location. Donald L. Gardner Inc. is the owner of certain real property, King County tax parcel number 192104-9044, situated in Federal Way, Washington, located along the southwest side of Campus Drive at the intersection of 10th Avenue SW ("ParceISB"). ParcelSB is more particularly described on Exhibit A attached hereto and incorporated herein by this reference. 3. Project Description. The Project consists of development of 44 single family lots and one acre of multi-family units as depicted on the Development Plan, attached hereto as Exhibit B (the "Plan" or "Development Plan"). The Plan encompasses a larger area of real property than is covered by this Agreement. It is the intention of the Parties that the terms of this Agreement do not apply to the entire area ofreal property encompassed by the Plan, but only to Parcel 5B as described above in Section 2. 4. Concomitant Agreement. If the allowed use ofParcelSB is changed from exclusive multi- family to both single-family and multi-family by the Federal Way City Council, Owner and the City agree that Parcel SB may be developed only in accordance with the standards and mitigation set forth in the Agreement. Parcel SB 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 SB shall be inconsistent with the Agreement or City Code. Parcel SB 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 ofParcel5B to single- family and multi-family residences, as depicted in the Development Plan, attached as Exhibit B. S.2 Relationship Between City Development Relrolations 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 ofParcelSB, 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 Desilltl and Site ConfilZuration. 6.1.1 Pennitted Development. Owner agrees that development shall be of residences only. Both single-family and multi-family development will be permitted, but no other development will be allowed without an amendment to this Agreement. 6.1.2 BuildinlZ Setback. All site improvements, except utilities, right-of-way improvements, and entry signage, shall be setback from SW Campus Drive a minimum of 60 feet as depicted in the Development Plan, attached as Exhibit B. 6.1.3 Maximum Density. The maximum density for the one acre multi-family portion ofParcel5B, as designated in the Development Plan, shall be 16-units. 6.2 RilZht-of-way Improvements. Owner shall perform, as part of Project construction and prior to issuance of final plat approval unless otherwise noted, the following right-of-way improvements described in the attached Exhibit C as required and approved by the Director of Public Works. 6.2.1 10th Avenue SW. That portion of 10th Avenue SW'located within Parce15B: a. Dedicate the full 70 feet Right-of-Way to the City. Right-of-Way dedication to be via Statutory Warranty Deed. Additional right-of-way, dedicated by the City Parks Department and additional slope easement, will be necessary to complete the full- width dedication to SW Campus Drive. b. Clear and grade the entire 70 feet right-of-way limits, required for the full street improvements, including clearing and grading outside the right-of-way, sufficient to provide a 2: 1 slope, and as identified and allowed by the geo-technical report, from the westerly right-of-way to top of slope. c. Stabilize and control erosion of the graded area, outside the westerly edge of the hard- surface street improvements. d. Grant a slope easement to the City, where needed, for the graded area that falls outside the westerly right-of-way limit. e. Provide street improvements for the east half of the right-of-way, as measured from the centerline: 18-foot paved roadway (centerline to face of curb), curb and gutter, six- foot planter strip with street trees and street lights, eight-foot sidewalk, and three-foot utility strip. f. Provide street improvements for the west half of the right-of-way, as measured from the centerline: six-feet of paved roadway, plus thickened-edge, and provisions for drainage. The crown of the roadway pavement shall be located at the right-of-way centerline, in anticipation of the future 36-foot pavement section. g. Construct asphalt roadway taper, at a 25: 1 ratio, where the roadway section transitions from the 36-foot roadway section within Tax Lot 30, to the 24-foot roadway section within Tax Lot 44 (Parcel 5B). 3 6.2.2 SW Campus Drive. SW Campus Drive, southeast of 10th Avenue SW, along Parcel 5B frontage: a. Dedicate seven feet of Right-of~ Way to the City. Right~of- Way dedication to be via Statutory Warranty Deed. b. Proyide additional asphalt paving to create a twelve~foot wide left-turn pocket to access 1 Oth Avenue SW from SW Campus Drive per City Standard Roadway Section 'E', with concrete curb and gutter, six~foot planter strip with street trees and street lights, eight~foot sidewalk, and three-foot utility strip. c. Provide sufficient new roadway taper east from the widened paved edge at the easterly property boundary. 6.2.3 Intersection of lOth Avenue SW and SW Campus Drive: a. Extend existing curb, gutter, planter strip, and sidewalk around the radius to the southwest, terminating at the end of the curb return at the NW quadrant of intersection. This section of the new 1 Oth Avenue SW roadway, including pavement width, shall be constructed to the City's Type 'M' street section. b. Construct asphalt paved taper, at a 25: 1 ratio within the new 1 Oth Avenue SW right-of~ way, from the end of the curb return, to meet the proposed 24~foot paved roadway section, described above. c. Construct City-standard handicap access ramps at the NW and SW quadrants of the intersection. d. Add channelization in SW Campus Drive to create a left turn lane onto 10th Avenue SW, into the proposed plat of Parcel 5B. e. . Revise the left turn marking for traffic on the existing leg of 10th Avenue SW so that it will be a combined thru and left turn pavement marking (WSDOT Type 3L marking). f. Provide channelization for the new section of 1 Oth Avenue SW marked for two lanes of traffic: one lane westbound, with the southerly lane allowing for thru-, left, and right~tums. g. Provide signal modifications, including, but not limited to, wiring and conduit, loops, new signal poles, mast anns, etc., to the existing traffic signal system to be coordinated with City Traffic Division for all required modifications. 7. Otber Project Review Processes. 7.1 Single~Family Portion. The single~family portion of the Project will be subjectto preliminary plat approval, engineering plan review, final plat approval, and any other applicable review processes. The final design of the buildings and other improvements, precise location of building footprints, location of utilities, determination of access points, and other design issues will be determined during that process and must be consistent with the Agreement and the Plan. 7.2 Multi~Familv Portion. The multi~family portion ofthe Project will be subject to site plan and design review pursuant to the design requirements outlined in the FWCC and any other applicable review processes. The final design of the buildings and other improvements, precise location of building footprints, location of utilities, determination of access points, and other design issues will be determined during that process and must be consistent with the Agreement and the Plan. 4 8. Waiver and Mutual Release of Claims of Invalidity. The City and Owner acknowledge and represent that the terms of this Agreement have been jointly negotiated and that each party enters into this Agreement voluntarily. Further, Owner and the City agree that this Agreement is authorized under law and each party waives any claim that the Agreement is invalid or illegal. The agreements and representations in this Section are material to this Agreement and are being relied upon by both Parties. 9. General Provisions. 9.1 Binding on Successors. 9.1.1 The Agreement shall bind and inure to the benefit of the Parties and their successors in interest, and may be assigned to any successor in interest to the Project property. 9.1.2 This Agreement is intended to protect the value of, and facilitate the use and development of, Parcel5B and to protect the public health, safety, and welfare of the City. Therefore, the covenants set forth herein shall be construed to and do touch and concern Parcel 5B and the benefits and burdens inuring to Owner and to the City from this Agreement shall run with the land and shall be binding upon Owner, its heirs, successors, and assigns, and upon the City. 9.2 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington. Venue for any action to enforce the terms of this Agreement shall be in King County Superior Court. 9.3 Severability. The provisions of this Agreement are separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of this Agreement, or the validity of its application to other persons or circumstances. 9.4 Authority. The City and Owner each represents and warrants to the other that it has the respective power and authority, and is duly authorized, to execute and deliver this Agreement and that the persons signing on its behalf are duly authorized to do so. Owner further represents and warrants that it is the fee owner ofParcel5B, that it has authority to agree to the covenants and provisions contained herein, and that there are no other persons, entities, or parties with any fee interest in Parcel 5B. 9.5 Amendment. This Agreement may be modified only by written instrument authorized by the City Council and duly executed by the City Manager and Owner, and their successors and assigns; provided, however, notwithstanding the provisions of this Agreement to the contrary, the City of Federal Way may, without the agreement of Owner, adopt and impose upon Parcel5B 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 ofthe 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 ofthe Agreement that has not been completed at that time. 9.6 Exhibits. All exhibits attached hereto are incorporated herein by this reference as if fully set forth herein. 9.7 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. 5 9.8 Inte1ZI'ation: Scope of AlUeement. This Agreement and its exhibits represent the entire agreement of the Parties with respect to the subject matter hereof. There are no other agreements, oral or written, except as expressly set forth herein. This Agreement does not set forth all conditions applicable to the Project to the extent that additional conditions may be imposed as part of any permit issued by the City, as required by the Federal Way City Code as determined by the discretion of the Directors of the Departments of Community Development Services and/or Public Works. 9.9 Enforcement. Subject to the notice and cure provisions of this section, in the event either party fails to satisfY any of its obligations under this Agreement, the other party shall have the right to enforce this Agreement by an action at law for damages or in equity for specific performance. The Parties acknowledge that damages are not an adequate remedy for breach by either party. In addition to the remedies set forth herein, in the event of a breach of this Agreement by Owner, the City may enforce this Agreement under the enforcement provisions of the Federal Way City Code in effect at the time of the breach and/or it may terminate this Agreement and take action to amend the Comprehensive Plan and zoning designation of the Parcel 5B. No party shall be in default under this Agreement unless it has failed to perform its duties or obligations under this Agreement for a period of thirty (30) days after written notice of default from the other party. A notice of default shall specifY the nature of the alleged default and the manner in which the default 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 if the 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. 9.11 Police Power. Nothing in this Agreement shall be construed to diminish, restrict or limit the police powers of the City granted by the Washington State Constitution or by general law. This Agreement is an exercise of the City's police powers, the authority granted under RCW 36. 70B .170- .210, and other laws. 9.12 Recordinl!: Assilmment. 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. 6 IN WITNESS WHEREOF the parties have hereunto placed their hand and seals on the day and year indicated. CITY OF FEDERAL WAY, a':I:" .., i",. ton m..u. ..n. ~.....l.'p.al. corporation ......_ . .., ~~~-- ,.-<.".-..... , i. ,: .",' BY:(' ,/( <~~7 David H. Moseley, City Manager ~!/+~ ,--' ' , (,05 d-- daYOfMaY~ DONALD L. GARDNER INC., a Washington corporation J BY QJ~ Donald L. Gardner President Date: 5 ~ ""5- t:l5 Date: Approved as to Form for City of Federal Way: STATE OF WASHINGTON COUNTYOF~ \J\('''lL ) )ss. ) On this day, personally appeilTed before me, the undersigned, a Notary Public in and for the State , of Washington, duly commissioned and swom,'Do\'\(( \r\ \...-" (\iJ> vt(i'\(' v to me known to be the\'\'c:s,',c((<v i-- of Donald L. Gardner Inc., a Washington corporation, the corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated thathershe is authorized to execute said instrument on behalf of said corporation. /) Given under ~~....R~R(t~.\,d Offi. !Cial seal thi"j''''~ day Ofl'\"4v-) ''':''~''I'''' RNi:- '\'. lli .... ~....j\ !..--:If r" ' "\/~ \ " .i;-"'~ f.:..:;:'i(:~;i\(;j'-" '\', ..' J_L~ ,f ....:';'.~~)) .. '-t;,-~..\. ~j (Jlfjlt..-llIiR:lalture) . ' '., ."..p . I 1\, ""nm;;1\ .,'::' ~~. .'~'" }\ i-( l' (-' \ It · .~~ : () t); ~: :j ? ~ 0 ,w."~:f' .' ,::, (typed/printed name of notary) \ (jl"\ F't !BUC, .,/6:':: f Notary Public in and for the State if ,)". l ("D' '" -," fW h' t '/ "'b.>.., !--;2(;i:::":"\0,,;~ 0 as mg on. -.' \l;:~ oi;';^i~sY~:~,,...:' My commission expires: k \ .)\ I C)1p I\\,\.,.,~.~,,'I:. .- 7 ,2005. EXHIBIT A TO CONCOMITANT AGREEMENT LEGAL DESCRIPTION OF PARCEL 5B 8 Exhibit A Plat ofWynstone Federal Way, Washington LEGAL DESCRIPTION: PARCEL 1: That portion of Government Lot 1, Section 19, Township 21 North, Range 4 East, W.M., records of King county, Washington, said portion being more particularly described as follows: Commencing at the Northwest comer of said Section 19; THENCE along the North line thereof South 89000'18" East 335.78 feet: THENCE South 01035'16" West 42.00 feet to the Southerly margin of the lands described in deed recorded under Recording No. 8501170665, records of King County, Washington; THENCE along said Southerly margin South 89000'18" East 18.07 feet to the beginning of a curve concave to the Southwest having a radius of 658.00 feet; THENCE Easterly and Southeasterly 700.54 feet along said curve through a central angle of 60059'59"; THENCE South 28000' 19" East 422.43 feet to the true point of beginning and the beginning of a curve concave to the Northeast having a radius of 842.00 feet; THENCE Southeasterly 217.49 feet along said curve through a central angle of 14047'59" to a radial line of said curve which bears South 47011 '42" West; THENCE leaving said margin along the non-tangent East line of said Government Lot South 01013' 12" West 390.17 feet to the Southeast corner thereof; THENCE along the South line of said Government Lot North 88059'20" West 561.92 feet to the beginning of a non-tangent curve concave to the Southeast having a radius of 897.03 feet (a radial line through said beginning bears North 74048'34" West); THENCE Northerly and Northeasterly 732.77 feet along said curve through a central angle of 46048' 15" to the true point of beginning. Situate in the County of King, State of Washington. Tax Parcel No. 192104-9044-09 LEGAL DESCRIPTION (continued): PARCEL 2: That portion of Government Lot 2 in Section 19, Township 21 North, Range 4 East, W.M., lying Northerly of a line beginning on the Westerly line of said Government Lot at a point 412.00 feet Southerly of the Northwest comer thereof; THENCE East to the Easterly line of said Government Lot; EXCEPT the Westerly 264.00 feet thereof; AND EXCEPT that portion thereof described as follows: Commencing at the Northwest comer of the Southwest quarter of the Northwest quarter of said Sectionl9; THENCE South 89027'31" East along the North line thereof, a distance of264.01 feet to the point of beginning; THENCE continuing South 89027'31" East, a distance of298.22 feet; THENCE South 21047'27" West, a distance of 122.98 feet; THENCE South 70008'00" West, a distance of83.38 feet; THENCE South 53044'33" West, a distance of 164.46 feet; THENCE North 36015'27" West, a distance of 44.74 feet to the beginning ofa 340.00 foot radius curve the center of which bears South 53044'33" West; THENCE Northwesterly along said curve trough a central angle of 05000'38", an arc distance of29.73 feet; THENCE North 01006'36" East parallel with the West line of the Southwest quarter of said Northwest quarter, a distance of 183.39 feet to the point of beginning. Situate in the County of King, State of Washington. Tax Parcel No. 192104-9030-05 PARCEL 2A: An easement for ingress and egress over the South 30 feet of the West 264 feet of the North 412 feet of Government Lot 2, section 19, Township 21 North, Range 4 East, W.M., records of King County, Washington Situate in the County of King, State of Washington EXHIBIT B TO CONCOMITANT AGREEMENT DEVELOPMENT PLAN 9 EXHIBIT C TO CONCOMITANT AGREEMENT SECTION 6.2 RIGHT-OF-WAY IMPROVEMENTS 10 3' 36' 70' PRINCIPAL .30' CLASS A .85' CLASS E .50' CSTC MINIMUM SECTION MINOR .67' CLASS A .50' CSTC OR .30' CLASS A .85' A TB 3 LANES SECTION M NOTES: 12TH AVENUESW I ~ ~ PUBLIC WORKS DEPARTMENT ARTERIAL/ COLLECTOR owe. NO. 3-2M 12' 3' .. COLlEC TOR .50' CLASS A .50' CSTC OR .30' CLASS A .70' A TB EXHIBIT l- PAGE--LOF JI- -- .- -~ ._,..~------.....,...~ -(Vl ~ "S '" 1 I 0 ~ 0. ..1\ ~ ~ --' ~ I rn J Q n.. ----.J ~~ ""] ...-- \\l ~ o\.} J "2 ~3 ~ J "6 J ;~ @ '1. J >- I"J ~ I 7 ~ ~ k J 0 ., 0 )(. i \.L- ~ I <I. ...... Lt '.:..../ J N J a ~4 ~~ -sol' 0,). bJ~ ~ D J~ .[14/ EXHIBIT C. PAGE-L-OF ~ 3' il. Sidewalk Planter trip NOTES: ' 6' 12' 12' 3' !--12' 16' 12'----l Medion (whe..-e LT nol 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 CAMPUS DRIVE SW EXHIBIT '" PAGE-1-0F PUBLIC WORKS DEPARTMENT ARTERIAL DWG. NO. 3-2E I J ~ ) 1 ~. ... L t-toJ t...c. <tC taD \'n-\t-o~~' A.n..~ J__"._~____.__ 4\,1 CA~PvS. DI..-. _r--1--\E:.W LoSF\ iV\.~tJ P" L-A.\JE:' W ,/'f,.(";)W~6 03-\o"!..6~-""'^ <;,W (..AII"I.p("t~ P(t...{ \t:l ul. ~. t N ~~ ft.~ t-t cT <:to S.cALe... w ~ ~ II- c". 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