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ORD 17-840ORDINANCE NO. 17 -840 AN ORDINANCE of the City of Federal Way, Washington, relating to amending the Enchanted Parks, Inc. Concomitant Development Agreement, amending Ordinance No. 98 -310. WHEREAS, on March 3, 1998, Ordinance 98 -310 adopted a Concomitant and Development Agreement ( "Agreement ") between the City of Federal Way ( "City ") and Enchanted Parks, Inc. ( "Enchanted Park "), which specified the development parameters, mitigation and other special requirements for property located at 36201 Enchanted Pkwy S, Federal Way (the "Park "); and WHEREAS, on June 30, 2000, a first amendment to the Agreement was approved by the City and Enchanted Park; and WHEREAS, on January 17, 2002 a second amendment to the Agreement was approved by the City and Enchanted Park; and WHEREAS, the twenty (20) year term of the Agreement expires on April 6, 2018; and WHEREAS, on January 9, 2017, Enchanted Parks submitted to the City an application to amend and extend the Agreement; and WHEREAS, an Environmental Determination of Nonsignificance ( "DNS ") was properly issued for the proposal on August 11, 2017, and no comments or appeals were received, and accordingly the DNS was finalized on September 15, 2017; and WHEREAS, Federal Way Revised Code 19.85.200 states the City will process and decide upon an application for an amendment as if it were an application for a new development agreement; and WHEREAS, Federal Way Revised Code 19.85.185 states the City Council shall consider the application for approval of the development agreement in a public hearing; and Ordinance No. 17 -840 Page 1 of 4 WHEREAS, a properly noticed public hearing was held on December 5, 2017 by City Council, for the purpose of obtaining input from interested parties. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Findings and Conclusions. The City Council of the City of Federal Way makes the following findings and conclusions with respect to the proposed amendment to the Agreement as attached in Exhibit A: (a) The proposed amendment to the Agreement is compatible with, and has no negative impact upon, adjacent land uses. The proposed height increase applies only to the section of the Park adjacent to Interstate 5. The visual impact on surrounding residences will be minimal. No increase in attendance is anticipated, as the amendment does not expand the size of the Park or allow any new land uses. (b) The proposed amendment to the Agreement maintains adequate facilities including utilities, roads, public transportation, parks, recreation, and schools in order to mitigate impacts of the development. None of the revisions will negatively impact public services or facilities. The updating of stormwater standards and traffic language will require mitigation by the applicant upon future development activity. (c) The proposed amendment to the Agreement does not reduce potential benefits to the community associated with the Park. Revisions to the Park's storm water improvement section of the agreement will ensure the Park meets the latest requirements at the time of new development. Likewise, establishing new baseline traffic levels will better reflect current conditions and clarify the thresholds to trigger future traffic impact fees and mitigation. Ordinance No. 17 -840 Page 2 of 4 (d) The proposed amendment to the agreement does not have any detrimental effect on any aspect to the City's Comprehensive Plan. The amendment does not allow any new land uses or expand the size of the Park. It will not impact the Comprehensive Plan. (e) The proposed amendment to the Agreement has followed the proper procedure required under the FWRC. Section 3. The Amended Concomitant Development Agreement between the City of Federal Way and Enchanted Parks, Inc. is approved as attached hereto as Exhibit A, and incorporated by this reference. Section 4. Severability. Should any section, subsection, paragraph, sentence, clause, or phrase of this chapter, or its application to any person or situation, be declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining portions of this chapter or its application to any other person or situation. The City Council of the City of Federal Way hereby declares that it would have adopted this chapter and each section, subsection, sentence, clauses, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Section 5. Corrections. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener /clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 6 . Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Ordinance No. 17 -840 Page 3 of 4 Section 7. Effective Date. This ordinance shall be effective five (5) days after its passage and publication as provided by law. PASSED by the City Council of the City of Federal Way this 5th day of December, 2017. CITY OF FEDERAL WAY: ATTEST: E COURTNEY, CMC, CITY CLERK APPROVE AS TO FORM: J. RYAN CALL, CITY ATTORNEY FILED WITH THE CITY CLERK: 11/30/2017 PASSED BY THE CITY COUNCIL: 12/05/2017 PUBLISHED: 12/08/2017 EFFECTIVE DATE: 12/13/2017 ORDINANCE NO.: 17 -840 Ordinance No. 17 -840 Page 4 of 4 AMENDED CONCOMITANT DEVELOPMENT AGREEMENT THE CITY OF FEDERAL WAY ENCHANTED PARKS, INC. DATE: DECEMBER 5, 2017 TABLE OF CONTENTS Page 1. Definitions 2 1.1 "FWRC" 2 1.2 "Enchanted Park Annexation" 2 1.3 "Enchanted Park Property" or"Property" 2 1.4 "Land Use Codes" 2 1.5 "Regional Commercial Recreational Facility" 2 1.6 "Zoning Code" 2 2. Petition for Annexation 3 3. Establishment of Planning and Zoning 3 3.1 Comprehensive Plan 3 3.2 Zoning 3 3.2.1 Permitted Uses 3 3.2.2 Development Regulations 3 3.3 Environmentally Sensitive Areas 3 3.3.1 Mud Lake 3 3.3.2 Parking Lot Expansion Area 3 3.3.3 Parcel Q 3 3.4 Height Restrictions 3 3.5 Retail Sales 4 4. Conformity of Existing Uses and Development within the Developed Area 4 4.1 Hours of Operation 5 4.2 Improvements 5 4.2.1 Parking 5 4.2.2 Existing Parking 5 4.2.3 Signage 5 4.2.4 Storm Water 6 4.2.5 Extensions of Time 6 4.2.6 Outdoor Uses 6 ND: 15361.012 4836-0282-3245v7 Table of Contents,page i 4.2.7 Access 6 4.2.8 Lighting 6 4.3 Traffic 6 5. Utility Service 7 6. Mitigation and Impact Fees 7 7. Regulation of Amusement Rides 8 8. Future Improvements 8 8.1 Maintenance and Renovation Activities within the Developed Area 8 8.2 Amusement Rides 8 9. Compliance with Other Codes 9 10. Obligation to Annex 9 11. General Provisions 9 11.1 Governing Law 9 11.2 Binding on Successors; Assignment 9 11.3 Recording 9 11.4 No Severability 9 11.5 Authority 9 11.6 Term of Agreement 9 11.7 Amendment 9 11.8 Exhibits 10 11.9 Headings 10 11.10 Integration 10 12. Indemnification 10 13. Compliance 10 14. Police Power 10 15. Effective Date 10 ND: 15361.012 4836-0282-3245v7 Table of Contents,page ii LIST OF EXHIBITS EXHIBIT A Legal Description EXHIBIT B Site Plan- Structures EXHIBIT C Office Park 4 Zone (Op-4) Development Regulations EXHIBIT D Site Plan- Parking EXHIBIT E Height Restrictions -Area Map EXHIBIT E-2 Height Restrictions—Increased Height Zone Map EXHIBIT F REVISED Drainage Improvements EXHIBIT F-1 Parking Lot Expansion- Site Plan EXHIBIT F-2 Parking Lot Expansion Landscape Plan EXHIBIT G Landscaping EXHIBIT H Site Plan-Access EXHIBIT I Site Plan - Lighting EXHIBIT J Site Plan- Development Activities EXHIBIT K TRAFFIC REPORT EXHIBIT K-2 REVISED Traffic Report EXHIBIT L Wetlands Report ND: 15361.012 4836-0282-3245v7 Table of Contents,page iii AMENDED CONCOMITANT DEVELOPMENT AGREEMENT Enchanted Park THIS AMENDED AGREEMENT is made and entered into this 5th day of December 2017,by and between the CITY OF FEDERAL WAY, a non-charter optional municipal code city organized and existing under the laws of the State of Washington(the "City" or"Federal Way"), and ENCHANTED PARKS, INC., a Washington corporation ("Enchanted Park"). RECITALS A. Federal Way has the authority under RCW 36.70B.170-.210, and Chapter 19.85 of the Federal Way Revised Code ("FWRC") and other laws of the State of Washington to enact laws and enter into agreements to promote the health, safety, and welfare of its citizens and thereby control the use and development of property within its jurisdiction, and to undertake the annexation of contiguous property located outside of its boundaries pursuant to Chapter 35A.14 RCW. B. Enchanted Park is the owner of certain real property situated in unincorporated King County, Washington, which property is more particularly described on EXHIBIT A attached hereto and incorporated herein by this reference (the "Property" or the "Enchanted Park Property"). C. The Enchanted Park Property is presently operated as a Regional Commercial Recreational facility with an outdoor/indoor amusement facility and water slide and aquatics park, with associated parking, maintenance, games of skill and chance, food service and office uses. The Enchanted Park Property is developed generally as shown on the site plan(the "Site Plan") set forth in EXHIBIT B attached hereto. Enchanted Park anticipates the need, from time to time, to operate, improve, and expand its existing operations on the Enchanted Park Property. It is anticipated that the existing use of the Enchanted Park Property, as it may be modified and expanded, will continue for at least twenty(20) years. D. The Federal Way City Council has directed that zoning and development regulations for the Enchanted Park Property be designed so as to permit the continued operation and development of the Enchanted Park Property in accordance with its existing use, with limited expansion and modification of that use allowed, so long as certain operations on the Property are brought into compliance with City Codes, as outlined by the terms of this Amended Agreement. E. The City of Federal Way annexed the Property in 1998 and the Park has been operating under an Agreement (the "Agreement") since March 3, 1998. Many actions authorized in the original Agreement have been completed, and two previous amendments have been executed, in 2000 (King County Recording No. 20000727000972) and 2002 (King County ND: 15361.012 4836-0282-3245v7 Exhibit A,page 1 Recording No. 20020214001588). The City updated its municipal code from the FWCC to the Federal Way Revised Code ("FWRC") in 2009. The parties desire to extend the Agreement for an additional 20-year term and make such other amendments as are set forth in this Amended Agreement, including updating references to the FWRC and acknowledging prior actions taken. The City has issued a Determination of Nonsignificance under the State Environmental Policy Act ("SEPA") on August 10, 2017 for the approval of this Amended Agreement. F. The parties now wish to amend the Amended Agreement in order to set forth in greater detail the provisions with respect to Federal Way's administration of zoning and development regulations, and other municipal authority. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Amended Agreement, the parties hereby covenant and agree as follows: AGREEMENTS 1. Definitions. For the purposes of this Amended Agreement, the following terms shall have the meanings set forth below: 1.1 "FWCC" shall mean the Federal Way City Code as enacted upon the Effective Date of this Amended Agreement and thereafter amended. "FWRC" shall mean the Federal Way Revised Code as presently enacted or hereafter amended. All references to FWCC shall mean the FWRC as presently enacted or hereafter amended. 1.2 "Enchanted Park Annexation" shall mean the proposed annexation of the Enchanted Park Property and the King County-owned property legally described in the Annexation petition submitted by Enchanted Parks, Inc. to the City of Federal Way. However, the terms and conditions of this Amended Agreement shall not apply to the King County-owned property. 1.3 "Enchanted Park Property" or "Property" shall mean that certain property legally described in EXHIBIT A attached hereto. 1.4 "Land Use Codes" shall mean those regulations, ordinances and rules of the City of Federal Way governing the use and development of land, including without limitation, Titles 14 through 19 of the FWRC, as may hereafter be amended. 1.5 "Regional Commercial Recreational Facility" shall mean a use operated for profit, with private facilities, equipment and/or services,both indoor and outdoor for entertainment and recreational purposes, including large- and small-scale amusement rides, roller coasters, aquatic park facilities, swimming pools, accessory video and movie facilities,petting zoos, and other similar uses. Such a use shall be of a scale or offer unique recreational opportunities so as to provide recreational services of a regional nature. The use of such area may be limited to private membership or may be open to the public upon payment of a fee. 1.6 "Zoning Code" shall mean Title 19 of the Federal Way Revised Code. ND: 15361.012 4836-0282-3245v7 Exhibit A,page 2 2. Petition for Annexation. [This section intentionally deleted as previously completed.] 3. Establishment of Planning and Zoning 3.1 Comprehensive Plan. The City Council lawfully established a"Commercial Recreation" classification for the Property on the City official comprehensive plan map,pursuant to former FWCC Section 19-100(b) and the City of Federal Way's Comprehensive Plan. 3.2 Zoning. Effective upon annexation, the City lawfully adopted Ordinance 98-310 subjecting the Property to the Office Park-4 Zone, and the OP-4 development regulations; EXHIBIT C,hereto. 3.2.1 Permitted Uses. All those uses permitted in the OP-4 zone, as set forth in this Amended Agreement and EXHIBIT C attached hereto, shall be permitted on the Enchanted Park Property. 3.2.2 Development Regulations. The development regulations for the Property shall be those applicable to the OP-4 zone as set forth in this Amended Agreement, and by the provisions of EXHIBIT C, attached hereto. 3.3 Environmentally Sensitive Areas 3.3.1 Mud Lake. As discussed in EXHIBIT L, "Enchanted Lake"or"Mud Lake" was, at one time, a wetland located on the Property. Over the twenty(20) years preceding annexation, King County allowed urban development in the area and in a manner that caused the wetland to cease functioning as a wetland. At this point, the water body essentially functions as a surface water detention facility and provides an aesthetic amenity for the complex. As a surface water retention pond in a closed depression, "Mud Lake" is not subject to regulation under Title 15, "Shoreline Management"or Chapter 19.145, "Environmentally Sensitive Area"of the FWRC. 3.3.2 Parking Lot Expansion Area. A portion of the area north of South 369th Street proposed for parking lot expansion is wet as the result of drainage activity from Mud Lake. Since this area has become wet as the result of artificially created drainage, it is exempt from critical area regulation,pursuant to the OP-4 development regulations, Section V.B, contained within EXHIBIT C hereto. 3.3.3 Parcel Q. Enchanted Park acknowledges that any areas classified as environmentally sensitive pursuant to Chapter 19.145 of the "Environmentally Sensitive Areas" of the FWRC and located on Parcel Q, shown on EXHIBIT J, have not been artificially, intentionally or accidentally created by human activity and do not fall within the exemption contained in Section V.B of the OP-4 development regulations contained within EXHIBIT C hereto. 3.4 Height Restrictions. The following height restrictions shall be applied to the areas, as designated on EXHIBIT E, within the OP-4 Zone: ND: 15361.012 4836-0282-3245v7 Exhibit A,page 3 HEIGHT RESTRICTIONS Regional Commercial Non-Regional Commercial Area Number Recreational Facility Uses Recreational Facility Uses 1 35' 3 stories or 35', whichever is greater 2 55' base height, 55' base height, maximum maximum height 75'S of 70', for office uses 55' base height, maximum of 75' for hotels' 35' base height, maximum of 55' for all other usess 3 125', except 200' allowed in 55' base height, maximum the Increased Height Zone of 70', for office uses shown on EXHIBIT E-2 55' base height, maximum of 75' for hotelss 35' base height,maximum of 55' for all other usess If approved through Process III, the height of the structure may exceed the base height, up to the maximum height,provided each required yard abutting the structure is increased 1' for each 1' the structure exceeds the base height above average building elevation. 3.5 Retail Sales. Retail sales, general and specialty, shall be allowed on the Property, not to exceed 100,000 square feet of gross floor area,provided that development of any retail sales on Parcel Q, as legally described in EXHIBIT A hereto, shall not count against such limitation. 4. Conformity of Existing Uses and Development within the Developed Area. The City agreed that, upon annexation, all existing uses, buildings and development on the Property could continue in existence as is, and would not require alteration to conform to any different Federal Way standards, except as provided for elsewhere in this Amended Agreement or otherwise required to meet uniform fire safety codes and other life/safety requirements under the UFC and UBC. Nothing in this section shall constitute a warranty of any kind by the City, including the habitability of existing structures. This Amended Agreement contemplates that renovation and certain redevelopment of the Regional Commercial Recreational Facility uses currently located on the Enchanted Park Property may occur without imposing upon Enchanted Park the need or the requirement to undertake improvements or to change existing uses and structures to conform to the current FWRC, except as otherwise required by this Amended Agreement. The provisions of Chapter 19.30 FWRC, "Nonconformance," shall not be applied to the Regional Commercial Recreation Facility uses in existence within the developed area as shown on EXHIBIT B as of the date of this Amended Agreement,but shall apply to all other Regional Commercial Recreational Facilities outside of the developed area and any new Non-Regional Commercial Recreational Facilities on the Property subsequent to the date of this Amended Agreement. However, FWRC ND: 15361.012 4836-0282-3245v7 Exhibit A,page 4 19.30.120 Nonconforming Water Quality Improvements shall apply as provided in this Amended Agreement. 4.1 Hours of Operation. The normal hours of operation for the uses on Enchanted Parks Property shall be permitted from 9:30 a.m. to 10:00 p.m., seven days a week; provided that Enchanted Parks may, from time to time, but not exceeding 15 times per year, maintain operations later than 10:00 p.m. for special events, such as high school graduation parties. In addition, operations of facilities on the Northern portion of the property(as depicted by a dividing line on EXHIBIT J) shall be permitted until 1:00 a.m. No outdoor music audible to any residential areas shall be allowed after 10:00 p.m. Enchanted Parks shall fully comply with the City Noise Ordinance, glare and lighting requirements; and shall modify, if directed by the Director of Community Development, noise and lighting to minimize any impacts to the developed adjacent residential areas. 4.2 Improvements 4.2.1 Parking. The parking areas and vehicle loading areas indicated on the parking plan attached as EXHIBIT D and EXHIBIT E-2 constitute sufficient parking to support the uses of the Enchanted Park Property existing on the date of this Amended Agreement, and the p Y g physical development and layout of such parking (including but not limited to stall width. drive aisle width and location, surface improvement, landscaping and drainage)may continue in existence subject to the provisions of this Amended Agreement. 4.2.2 Existing Parking. Enchanted Park will maintain the existing number of baseline parking stalls as shown on EXHIBIT D at all times. If expansion of Regional Commercial Recreational uses is proposed to occur on existing parking lots, the lost parking stalls shall be replaced to maintain the number of baseline parking stalls shown on EXHIBIT D. These new stalls shall be constructed consistent with FWRC. For example, if new water slides are added to the park by expansion into an existing parking lot, the lost parking stalls will be replaced to maintain the baseline parking requirement. If expansion of Regional Commercial Recreational uses occurs outside of the existing boundary lines of the Park, as shown on EXHIBIT J, additional parking stalls shall be added to the baseline parking stalls in an amount determined by the City, to accommodate expansion or intensification of the facility. Enchanted Park shall submit documentation that the additional stalls, if any, will appropriately accommodate the proposed expansion. If the expansion also displaces any existing parking stalls, the lost stalls will be replaced to maintain the number of baseline parking stalls shown on EXHIBIT D. Any required new parking stalls shall be constructed consistent with FWRC in effect at the time of the expansion. If Enchanted Park proposes to add new uses which are not part of the Regional Commercial Recreational Facility Use to the park operation, additional parking shall be added to the baseline parking requirement consistent with the FWRC. If the new use displaces any baseline parking stalls, those stalls shall also be replaced. 4.2.3 Signage. Lighting and signage integral and accessory to amusement rides installed on the Enchanted Park Property, and incidental and decorative lighting (such, for ND: 15361 012 4836-0282-3245v7 Exhibit A,page 5 example, lighting or laser light displays), shall not be regulated as "signs"under the FWRC. All signs on the Enchanted Park Property shall comply with applicable provisions of the Federal Way Sign Ordinance, codified at Chapter 19.140 FWRC, or as amended, or shall comply with EXHIBIT C, as applicable. 4.2.4 Storm Water. Any proposed project that requires land use approval or a building/engineering permit ("Project") shall comply with all applicable storm water conveyance, detention, and water quality regulations in place at the time of submittal. Currently, these are outlined in FWRC Title 16 and FWRC 19.30.120. The existing record of the Enchanted Park/Wild Waves storm water system is shown on EXHIBIT F. 4.2.5 Extensions of Time. Enchanted Park may petition the City for extension of any of the compliance dates set forth above, and the Director of Community Development may grant such extension for a reasonable period necessary to allow completion of the work, so long as Enchanted Park has made good faith efforts to comply with the stated compliance date, and posts bonds for 1.2 times the value of the work. 4.2.6 Outdoor Uses. Such Regional Commercial Recreational Facility uses as Enchanted Park does now or may hereafter conduct outdoors on the Enchanted Park Property under this Amended Agreement are permissible outdoor uses. 4.2.7 Access. The access and driveway locations on the Enchanted Park Property existing as of the date hereof, as shown on the access plan marked as EXHIBIT H attached hereto, are hereby acknowledged by the City and no changes to such improvements for the existing uses will be required by the City. This does not supersede the jurisdiction of the Washington State Department of Transportation regarding the driveway onto Enchanted Parkway from the Enchanted Park Property. Direct vehicle access to South 369th Street shall be prohibited so long as the Enchanted Park Property is utilized as an Amusement Park. 4.2.8 Lighting. The lighting of the Enchanted Park Property existing as of the date hereof, as shown on the lighting plan attached hereto as EXHIBIT I, is hereby acknowledged by the City and no changes to such improvements for the existing uses will be required by the City. 4.3 Traffic. As of the date of this Amended Agreement, the parties agree that the traffic generated by the existing uses and activities on the Enchanted Park Property has been mitigated up to the attendance and trip levels set forth in Table 1 below (the "SEPA Baseline"), which were established using EXHIBIT K-2 (REVISED 2003 Traffic Assessment for Wooden Roller Coaster(Sept. 4, 2002)), attached hereto and incorporated herein. The traffic generated by the Enchanted Park Property for any future Replacement or Expansion project (hereafter "Expanded Ride Capacity") that requires land use approval or a building/engineering permit shall be calculated using the Methodology of Exhibit K-2 and a 2.5 occupant-to-vehicle ratio. ND: 15361.012 4836-0282-3245v7 Exhibit A,page 6 Table 1 —Enchanted Park 2002 Attendance and Trips Data(Jan. 1, 2002 —Aug. 27, 2002) Attendance/Trips _2002 Annual Attendance 584,921 Annual Trips 467,937 Maximum Attendance per Day 13,208 Maximum Trips Per Day 10,566 Maximum Day PM Peak Trips 951 Average of 10 highest days attendance 11,170 Average of 10 highest days trips 8,936 Average of 10 highest days PM Peak Trips 804 Average attendance per Day 5,735 Average trips per Day 4,588 Average Day PM Peak Trips 413 2002 attendance data from EXHIBIT K-2 Trips=(Attendance/2.5 AVO)*2. PM Trips=((Attendance/2.5 AVO)*2)*.09 In the review of any future Expanded Ride Capacity Project on the Property, the City shall recognize the methodology used to derive new trips as specified in the traffic report, EXHIBIT K- 2, and an occupant-to-vehicle ratio of 2.5 for such uses, consistent with the traffic report, EXHIBIT K-2. Other methods may be used to calculate traffic generation by Enchanted Park as approved by the City. Enchanted Park shall provide a trip generation study consistent with the methodology in EXHIBIT K-2 for all future Expanded Ride Capacity Projects on the property and shall be subject to concurrency management program requirements of Chapter 19.90 FWRC if such Expansion Project generates new trips in the PM Peak hour in excess of the SEPA Baseline. 5. Utility Service. The City agrees to furnish all municipal services to the Property in the event it is annexed, to the extent the City controls the municipal services either directly or by contract. 6. Mitigation and Impact Fees. Except as otherwise provided for in this Amended Agreement, Federal Way shall not impose or attempt to recapture any fees from Enchanted Park or impose other requirements on Enchanted Park to mitigate potential impacts associated with the present Regional Commercial Recreational Facility use of the Enchanted Park Property (including uses authorized under Sections 8.1, 8.2, and 8.3 below), except to the extent that street, sidewalk, or other public improvements may be required under FWRC Section ND: 15361.012 4836-0282-3245v7 Exhibit A,page 7 19.135.030. Enchanted Park shall be entitled to conduct uses and activities throughout the year on the Property that do not exceed the average of 10 highest days trips or peak hour traffic levels identified in Table 1, or another measure from the City's Guidelines for the Preparation of Transportation Impact Analyses, without the need or requirement to pay mitigation or impact fees of any kind;provided that use or development that exceeds such traffic levels in the future shall be subject to transportation impact fees and concurrency management processes consistent with City codes at that time. In the event traffic generated by an Expanded Ride Capacity project exceeds the SEPA Baseline established in section 4.3 and is deemed significant by the City, Enchanted Parks shall prepare a traffic study and mitigate such impacts to the satisfaction of the City's Public Works Director pursuant to Chapter 19.135 FWRC and applicable Federal Way Comprehensive Plan policies. 7. Regulation of Amusement Rides. During the term of this Amended Agreement and consistent with state law,regulation of the operation of amusement rides on the Enchanted Park Property, including licensing and inspection of such rides, shall be solely governed by the State of Washington Department of Licensing(or successor state agency) and Federal Way shall not exercise such regulatory authority, except as may be necessary pursuant to adopted Building Code requirements. Federal Way will continue to perform the annual electrical inspection that were previously performed by the Washington State electrical inspector. 8. Future Improvements. Enchanted Park anticipates and the City acknowledges that, during the term of this Amended Agreement, certain renovation, repair, maintenance, expansion and redevelopment of the Enchanted Park Property will occur, as set forth in this Amended Agreement. 8.1 Maintenance and Renovation Activities within the Developed Area. Enchanted Park shall be authorized to conduct all routine maintenance, repair, and renovation activities as may be necessary or prudent in order to upgrade the existing facilities or uses in the Enchanted Park Property without the need for permit approvals, except, if applicable, electrical and tenant improvement permits and FWRC 19.30.120 Nonconforming Water Quality. Any such activities will not require existing structures to be modified to comply with the FWRC, except to the extent necessary to comply with emergency service access, fire code, and/or life-safety code requirements as contained in the City's adopted UBC and UFC and current storm water regulations. 8.2 Amusement Rides. Within the area identified as"Development Area" on EXHIBIT J, Enchanted Park, shall be entitled, from time to time and at its discretion, to move existing or add additional Regional Commercial Recreational Facilities, subject only to Chapter 19.55 FWRC, Process I -Director's Approval or as set forth in Section 3.4 - Height Restrictions, FWRC 19.30.120 Nonconforming Water Quality Improvements, FWRC Title 16 Surface Water Management, and SEPA, if applicable. In the event traffic generated by the added additional Regional Commercial Recreational Facilities project exceeds the SEPA Baseline established in section 4.3 and is deemed significant by the City, Enchanted Parks shall prepare a traffic study and mitigate such impacts to the satisfaction of the City's Public Works Director pursuant to Chapter 19.135 FWRC and applicable Federal Way Comprehensive Plan policies. ND: 15361 012 4836-0282-3245v7 Exhibit A,page 8 9. Compliance with Other Codes. Enchanted Park acknowledges that nothing in this Amended Agreement shall be construed to relieve it of the obligation to comply with such statutes, codes, or regulations as may be applied to or enforced against the uses and activities on the Enchanted Park Property by agencies with jurisdiction other than Federal Way. 10. Obligation to Annex. [This section intentionally deleted as previously completed.] 11. General Provisions 11.1 Governing Law. This Amended Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington. 11.2 Binding on Successors; Assignment. This Amended Agreement is intended to protect the value of the Enchanted Park Property, as well as the public health, safety, and welfare of the City of Federal Way, and the benefits and burdens inuring to the Property and the City as a result of this Amended Agreement shall run with the land and shall be binding upon Enchanted Park, its heirs, successors, and assigns and upon the City Federal Way, for the term of this Amended Agreement. This Amended Agreement and its benefits or burden shall be assignable by Enchanted Park, and to the extent a successor or assign assumes the obligations of Enchanted Park under this Amended Agreement, Enchanted Park shall have no further liability or obligations under this Amended Agreement. 11.3 Recording. This Amended Agreement or memorandum hereof shall be recorded against the Enchanted Park Property as a covenant running with the land and shall be binding upon Enchanted Park, its successors and assigns. If this Amended Agreement is terminated, Federal Way will execute appropriate documents to so indicate. 11.4 No Severability. The provisions of this Amended Agreement are not severable. In the event any provisions of this Amended Agreement are determined to be unenforceable or invalid by a court of law, then this Amended Agreement shall thereafter be rendered voidable at the option of either party, which option shall be exercised in writing no later than ten (10) business days after the court determination or thereafter shall be deemed waived. Provided, that no such determination of invalidity occurring after the effective date of annexation shall affect the validity of the annexation. 11.5 Authority. Federal Way and Enchanted Park each represent and warrant to the other that it has the respective power and authority, and is duly authorized to execute and deliver this Amended Agreement. Enchanted Park represents and warrants that it is the fee owner, contract purchaser, or lessee of the Enchanted Park Property. 11.6 Term of �' Agreement. This Amended Agreement shall remain in full force and effect for twenty(20) years from the effective date of this Amended Agreement unless terminated prior to that date by the mutual agreement of the parties or by the City pursuant to Section 13 of this Amended Agreement. 11.7 Amendment. This Amended Agreement and attached exhibits may be modified only by a written instrument duly executed by both parties. In the case of a proposed major modification by Enchanted Park to the land use provisions set forth in this Amended Agreement ND: 15361.012 4836-0282-3245v7 Exhibit A,page 9 and Exhibits, Chapter 19.85 FWRC shall be utilized. At the request of Enchanted Park, the Director of Community Development may authorize minor modifications to the land use provisions set forth in this Amended Agreement if the Director of Community Development determines that a proposed modification to this Amended Agreement does not constitute a "major"modification hereunder. No such modification may impair or restrict the existing uses or development of Enchanted Park under this Amended Agreement; provided, however, notwithstanding the provisions of this Amended Agreement to the contrary, the City of Federal Way may, without the agreement of Enchanted Park, adopt and impose upon the Enchanted Park Property restrictions and development regulations different than those set forth herein, if required by a serious threat to public health and safety. 11.8 Exhibits. Exhibits A through L attached hereto are incorporated herein by this reference as if fully set forth. 11.9 Headings. The headings in this Amended Agreement are inserted for reference only and shall not be construed to expand, limit or otherwise modify the terms and conditions of this Agreement. 11.10 Integration. This Amended Agreement and Exhibits represents 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. 12. Indemnification. Enchanted Parks, Inc. releases and agrees to defend, indemnify, and hold harmless the City and all of its elected and appointed officials and its employees from all liability, claims, appeals, and costs, including the costs of defense of any claim or appeal, arising in connection with this Amended Agreement, except to the extent resulting from the sole negligence of the City or its officers, agents, or employees in performance of this Amended Agreement. 13. Compliance. In the event Enchanted Park shall fail to satisfy any of its obligations under this Amended Agreement, the City shall have the right to exercise any remedy at law or in equity to compel the performance of such obligation, including such remedies as may be provided under the enforcement provisions of the FWRC. In addition, Enchanted Park's failure to satisfy any of its material obligations in this Amended Agreement shall constitute a breach of contract and shall be grounds for termination of this Amended Agreement by the City. 14. Police Power. Nothing in this Amended Agreement shall be construed to diminish or restrict the police powers of Federal Way as granted by the Washington State constitution or by general law. 15. Effective Date. This Amended Agreement shall become effective upon the effective date of the City Ordinance approving this Amended Agreement and approval of the Amended Agreement by both parties. ND: 15361.012 4836-0282-3245v7 Exhibit A,page 10 Dated as of the date first above written. CITY OF FEDERAL WAY, a Washington municipal corporation , By: _ ( N Jim Ferrell c: Mayor STATE OF WASHINGTON ss. COUNTY OF �A VZ I certify that I know or have satisfactory evidence that U1 Al C WtO is the person who appeared before me, and said person acknowledged that (helms) signed this instrument, on oath stated that (heAwas juthorized to execute the instrume t nd acknowledged it as the 6' of Fr? G r`� ( Int' ill , a in }� l l , to be the f and voluntary act of such party for the uses and purposes mentioned iii the instrument. DATED this day of C ' 111)13{, 20 1� .Z X�/zz .. 20tAR} i � .- = S 5 ;�i 9� r,,+st�.a• +� 1111\ and residing at relit GJ h1 My Commission Expires the State of Washington, ND: 15361.012 4836-0282-3245v7 Exhibit A, page I1 EPI REALTY HOLDINGS, INC., a Washington corporation ("Enchanted Park") By: Name: Title: STATE OF WASHINGTON ss. COUNTY OF I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that(he/she) signed this instrument, on oath stated that(he/she) was authorized to execute the instrument and acknowledged it as the of , a , to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED this day of , 20 Printed Name NOTARY PUBLIC in and for the State of Washington, residing at My Commission Expires ND: 15361.012 4836-0282-3245v7 Exhibit A,page 12