ORD 17-840 - Amending the Enchanted Parks Inc Concomitant Development AgreementORDINANCE 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