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AG 98-098When Recorded, Return to: HILLIS CLARK MARTIN & PETERSON, P.S. Attention: Ann M. Gygi 500 Galland Building 1221 Second Avenue Seattle, WA 98101-2925 SC;ANNED P~GE e~20~ ~47 KZNG COUNTY, ~ FIRST AMENDMENT TO CONCOMITANT DEVELOPMENT AGREEMENT, ENCHANTED PARKS, INC. Grantor: 1) ENCHANTED PARKS, INC. 2) CITY OF FEDERAL WAY [] Additional on page __ Grantee: 1 ) THE PUBLIC [] Additional on page __ Legal Description (abbreviated): 2) Those portions of the SW ¼ of Section 28, SE 'A or Section 29, NE ¼ of Section 32, NW ¼ or Section 33, Township 21 N, Range 4 East, W.M., King County, Washington [] Additional on : EXHIBIT A TO CONCOMITANT DEVELOPMENT AGREEMENT Assessor's Tax Parcel ID #: 721265-2310, 234550-0440, 721265- 2350, 282104-9025, 282104-9026 Reference Nos. of Documents Released or Assigned: THIS AMENDMENT is made this ~day of June, 2000, to that certain Concomitant Development Agreement for Enchanted Parks, between the CITY OF FEDERAL WAY ("The City"), and ENCHANTED PARKS, INC. ("Enchanted Parks"), dated March 3, 1998, (the "Concomitant Development Agreement"). RECITALS WHEREAS the Concomitant Development Agreement established a three-phase landscaping plan for the perimeter of Enchanted Parks, and authorized that the landscape implementation be phased over three consecutive years, from 1999 through 2001; and Enchanted Parks Amend #149252 15361-4 375w03!.doc 6/28/00 WHEREAS Enchanted Parks has proposed a revision to the phasing to install the landscaping sequentially from South to North advancing around the perimeter of the property; and WHEREAS the Concomitant Development Agreement authorizes the Director of Community Development Services, at the request of Enchanted Parks, to authorize minor modifications to the land use provisions set forth in the Concomitant Development Agreement; and WHEREAS the parties agree that the proposed landscape phasing revision constitutes a minor modification to the Concomitant Development Agreement; and WHEREAS this amendment is made upon the basis of the foregoing premises, and in consideration of the mutual promises and agreements herein and the mutual benefits to be derived by the parties therefrom. AMENDMENT 2.1 The landscape phasing provisions of Section 4.2.5 (Perimeter Landscaping) of the Concomitant Development Agreement is revised as follows: Landscaping Improvements. Enchanted Parks shall complete landscaping improvements to the perimeter landscape areas on the Enchanted Park property as set forth on the following timeline: Phase I: Phase Il: Phase III: November 30, 2001 November 30, 2000 November 30, 1999 The physical boundaries of each landscape phase shall remain as set forth on Exhibit G to the Concomitant Development Agreement. ... (The remainder of Section 4.2.5 to remain unchanged.) 2.2 It is determined that Enchanted Parks has proceeded in good faith to meet the landscape phasing timeline requirements, as demonstrated by the City's approval on February 2, 2000 of the landscape plans for Phases II and III. The landscaping for Phase III shall be installed per the approved plans as soon as possible. Enchanted Parks Amend #149252 15361-4 375w03!.doc 6/28/00 2.3 All other provisions of the Concomitant Development Agreement not specifically amended herein shall remain in full force and effect. EXECUTED the day and year first above written. By: .... Its ]5~ector~of Comn'~qity DevelOpment ENCHANTED PARKS, INC., a Washington corporation Enchanted Parks Amend #149252 15361-4 375w03!,doc 6/28/00 STATE OF WASHINGTON COUNTY OF KING SS. On this day personally appeared before me ~'~x'~o,~ r-~£rt, v,., to me known to be a [he~- ,,"i' ~.~.',oa~.r~ j~lnT'of THE CITY OF FEDERAL WAY, that executed the · % / . foregoing Instrument, and acknowledged such instrument to be the free and voluntary act and deed of such limited liability company, for the uses and purposes therein mentioned, and on oath stated that he was duly authorized to execute such instrument. GIVEN UNDER MY HAND AND OFFICIAL SEAL this ~'"o'~ V ., 2000. .~-? day of Printed Name NOTARY PUBLIC in and for the State of Washington, residing at My Commission Expires STATE OF WASHINGTON COUNTY OF KING SS. On this day personally appeared before me Jeff Stock, to me known to be the President of ENCHANTED PARKS, INC., a Washington corporation, that executed the foregoing instrument, and acknowledged such instrument to be the free and voluntary act and deed of such political subdivision, for the uses and purposes therein mentioned, and on oath stated that [he/she] was duly authorized to execute such instrument. GIVEN UNDER MY HAND AND OFFICIAL SEAL this ~ day of : ~~~~ ~ NO[ARY PUBLIC in and for the State of Washington, ~ ~'~'- ~0 ~-- ~ residingat /'. ~ ~ ~ ~ ~ ~ My Commission Expires Enchanted Parks Amend #149252 15361-4 375wO3!.doc 6/28/00 CONCOMITANT DEVELOPMENT AGREEMENT The City of Federal Way Enchanted Parks, Inc. DATE: 1/30/98 I:\ENCHTEDWXCONCOMAG.CC/March 25, 1998 TABLE OF CONTENTS 2. 3. 3.2. 3.2.2. 3.3. 3.3.2. 3.3.3. 3.4. 3.5. 3.6. 4. 4.2. 4.2.2. 4.2.3. 4.2.4. 4.2.5. 4.2.6. 4.2.7. 4.2.8. 4.2.9. 4.3. 5. 6. 7. 8. 8.2. 8.3. 9. Definitions ....................................................... 3 Petition for Annexation ............................................. 3 Establishment of Planning and Zoning ................................. 4 Comprehensive Plan ............................................... 4 Zoning .......................................................... 4 Permitted Uses .................................................... 4 Development Regulations ........................................... 4 Environmentally Sensitive Areas ...................................... 4 Mud Lake ........................................................ 4 Parking Lot Expansion Area ......................................... 5 Parcel Q ......................................................... 5 Height Restrictions ................................................. 5 Retail Sales ....................................................... 6 Street Vacation .................................................... 6 Conformity of Existing Uses and Development Within the Developed Area .... 6 Hours of Operation ................................................ 6 Improvements .................................................... 7 Parking .......................................................... 7 Existing Parking ................................................... 7 Signage .......................................................... 7 Drainage, Water Quality and Parking Lot Expansion ...................... 8 Perimeter Landscaping ......................... · .................... 11 Extensions of Time ........ :... .................................... 11 Outdooi' Uses .................................................... 12 Access ......................................................... 12 Lighting ........................................................ 12 Traffic ......................................................... 12 Utility Service ................................................... 12 Mitigation and Impact Fees ......................................... 12 Regulation of Amusernent Rides ..................................... 13 Future Improvements .............................................. 13 Maintenance and Renovation Activities Within the Developed Area ......... 13 Amusement Rides ................................................ 13 Parking Lot Expansion ............................................. 13 Compliance with Other Codes ................... : .................... 14 Tax Matters ..................................................... 14 Obligation to Annex ............................................... 14 Failure of Condition ............................................... 14 Withdrawal ...................................................... 15 General Provisions ........... · ..................................... 15 Concomitant Development Agreement #28060 15361-2 LNGI5!.DOC 1/30/98 page i of ii 12.1. 12.2. 12.3. 12.4. 12.5. 12.6. 12.7. 12.8. 12.9. 12.10. 13. 14. 15. 16. LIST OF EXHIBIT EXHIBIT EXHIBIT EXHIBIT EXHIBIT EXHIBIT EXHIBIT EXHIBIT EXHIBIT EXHIBIT EXHIBIT EXHIBIT EXHIBIT EXHIBIT Governing Law ................ , ................................. 15 Binding on Successors; Assignment .................................. 15 Recording ....................................................... 15 No Severability .................................................. 15 Authority ....................................................... 16 Term of Agreement ............................................... 16 Amendment ..................................................... 16 Exhibits ........................................................ 16 Headings ........................................ · ............... 16 Integration ...................................................... 17 Indemnification .................................................. 17 Compliance ..................................................... 17 Police Power .................................................... 17 Effective Date ................................................... 17 EXHIBITS A Legal Description B Site Plan - Structures C Office Park 4 Zone (Op-4) Development Regulations D Site Plan - Parking E Height Restrictions - Area Map F Drainage Improvements (Summary - Complete Text at City Hall) & October 28, 1997, Letter from ESM, Inc. F-I Parking Lot Expansion - Site Plan F-2 Parking Lot Expansion - Landscape Plan G Landscaping H Site Plan - Access I Site Plan - Lighting J Site Plan - Development Activities K Traffic Report L Wetlands Report Concomitant Development Agreement #28060 15361-2 LNG I 5!.DOC I/'30/98 page ii of ii CONCOMITANT DEVELOPMENT AGREEMENT Enchanted Park THIS AGREEMENT is made and entered into this __ day of ., 1998, 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 Federal Way has the authority under RCW 36.70B. 170-.210 and Chapter 19, Section 104 of the Federal Way City Code (FWCC) 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 ch. 35A. 14 RCW. 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"). 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. The City and. King County have been conducting certain p. lanning efforts as required by the Growth Management Act, RCW 36.70A. Both the County and the City have identified the Property as within King County's Urban Growth Area, and both parties have previously agreed that the Property is within the potential annexation area of Federal Way. The Property is currently zoned "Regional Business", "Neighborhood Business" and "Urban Residential (4 du/ac)" by King County and the zoning map effective August 1, 1996, of the City of Federal Way designates the property OP-4. Concomitant DeveLopment Agreement #28060 15361-2 LNGIS!.DOC 1/30/98 page I of 19 Enchanted Park is contemplating annexation of the Property into the City; however, Enchanted Park seeks certainty as to the zoning and other regulations which would be applicable to the PrOperty should it be annexed into the City. The City is interested in annexing the Property because it is located within the City's potential annexation area and urban services can be adequately provided. In addition, the City recognizes numerous public benefits associated with the annexation of the Property, i.e., managing growth and fiscal benefits, as well as intangible benefits that may be associated with having Enchanted Park's facility located within the City limits. The City has reviewed an environmental checklist in connection with this Concomitant Development Agreement (the "Agreement"). In compliance with the State Environmental Policy Act ("SEPA") and the City of Federal Way SEPA procedures, the City prepared an environmental impact statement (EIS) for the City of Federal Way's Comprehensive Plan, adopted November 21, 1995, and Zoning Ordinance, which EIS reviewed and considered the Comprehensive Plan and Zoning designation for the Enchanted Park Property, but did not review the development regulations of the zoning for the property that are contemplated by this Agreement. The City has reviewed an Environmental checklist for the proposed actions included within this Concomitant Agreement and has issued a Determination of NonSignificance and subsequent Addendum. Future development actions not contemplated in this Agreement shall be subject to their own SEPA review. Enchanted Park and neighboring property owners submitted to Federal Way a petition to commence annexation proceedings. On March 21, 1995, the Federal Way City Council met to discuss the Enchanted Park Annexation. The Federal Way City Council directed that for the Enchanted Park Property, Federal Way would adopt upon annexation specific zoning and land use regulations to govern that property for the period of time set forth in the Concomitant Development Agreement to be approved by the City Council. 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 Agreement. The parties now wish to enter into this Agreement in order to set forth in greater detail the provisions with respect to Federal Way's administra.tion of zoning and development regulations, and other municipal authority. Now, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, the parties hereby covenant and agree as follows: Concomitant Development Agreement #28060 15361-2 LNOI5!.DOC 1/30/98 page 2 of 19 AGREEMENTS 1. DEFINITIONS For the purposes of this Agreement, the following terms shall have the meanings set forth below: I. "FWCC" shall mean the Federal Way City Code as presently enacted or hereafter amended. 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 Agreement shall not apply to the Kine County- owned property. 3. "Enchanted Park Property" or "Property" shall mean that certain property legally described in EXHIBIT A attached hereto. 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, chapters 18 through 22 of the FWCC, as may hereafter be amended. 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 ora 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. 6. "Zoning Code" shall mean Chapter 22 of the Federal Way City Code. 2. PETITION FOR ANNEXATION The parties understand that Enchanted Park has filed a petition for annexation with the City conditioned on obtaining a Concomitant Development Agreement adopted by the City Council. The parties agree that no notice of intent to annex or annexation action may be filed with the Boundary Review Board until this Concomitant Development Agreement has been fully executed by both parties and the City has adopted the pre-annexation land use zoning regulations set forth in Section 3. herein by ordinance. In the event pre-annexation land use zoning regulations acceptable to Enchanted Park is not approved by the City by July 1, 1998, then Enchanted Park may withdraw its support for this annexation. Following execution of this Concomitant Development Agreement, the City agrees to submit to the Washington State Boundary Review Board of King County Concomitant Development Agreement page 3 of 19 #28060 15361-2 LNGI5!.DOC 1/30/98 ("BRB") a notice of intent to annex the Property described in the petition for annexation. 3. ESTABLISHMENT OF PLANNING AND ZONING 3.1. Comprehensive Plan The City Council has lawfully established a "Commercial Recreation" classification for the Property on the City official comprehensive plan map, pursuant to FWCC Section 19- 100(b) and the City of Federal Way's Comprehensive Plan. 3.2. Zoning If the petition for annexation is approved by the City, and BRB review is not invoked, or in the alternative, if BRB jurisdiction is invoked but the review process sustains the petition for annexation, then the City shall lawfully adopt an ordinance annexing the Property subject to application of the Office Park-4 Zone, and the OP-4 development regulations; Exhibit C, hereto. The City may also, upon approval of the petition for annexation, simultaneously adopt an ordinance annexing the property effective upon passage of forty-five (45) days or issuance of a BRB decision sustaining the annexation if BRB jurisdiction is invoked. 3. 2.1. Permitted Uses All those uses permitted in the OP-4 zone, as set forth in this 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 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 past twenty (20) years, 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 bo~ly 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 Chapter 18, Article III, "Shoreline Management" or Chapter 22, Article XIV, "Environmentally Sensitive Area" of the FWCC. Concomitant Development Agreement #28060 15361-2 LNGI 5!.DOC 1/30/98 page 4 of 19 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 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 22, Article XIV of the "Environmentally Sensitive Areas" of the FWCC 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: Area Regional Commercial Number Recreational Facility Uses 1 35' 2 55' base height, maximum height 75" 3 125' HEIGHT RESTRICTIONS Non-Regional Commercial Reci'eational Facility Uses 3 stories or 35', whichever is greater 55' base height, maximum of 70', for office use' 55' base height, maximum of 75' for hotels ' 35' base height, maximum of 55' for all other uses' 55' base height, maximum of 70', for Oft'~ce use' 55' base height, maximum of 75' for hotels ' 35' base height, maximum of 55' for all other uses' If approved through'Process !I1, the height of the structure may exceed the base height, up to the maximum height, provided each required yard abutting the structure is increased l' for each 1' the structure exceeds the base height above average building elevation. Concomitant Development Agreement page 5 of 19 //28060 15361-2 LNGIS!.DOC 1/30/98 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 sa]es on Parcel Q, as legally described in EXHIBIT A hereto, shall not count against such limitation. 3.6. Street Vacation The City shall support, or upon annexation of the Property will complete the process for vacation of right-of-way currently pending before King County, File No. 9400935, provided only that portion of the right-of-way not needed for potential widening of Milton Road is vacated. 4. CONFORMITY OF EXISTING USES AND DEVELOPMENT WITltIN THE DEVELOPED AREA The City agrees that, upon annexation, all existing uses, buildings and development on the Property may continue in existence as is, and will not require alteration to conform to any different Federal Way standards, except as provided for elsewhere in this Agreement or otherwise required to meet uniform fire safety codes and other life/safe~' 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 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 FWCC, except as otherwise required by this Agreement. The provisions of Chapter 22, Article IV "Nonconformance" FWCC, 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 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 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; pr~ovided 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 Concomitant Development Agreement #28060 15361-2 LNGIS!.DOC 1/30/98 page 6 of 19 directed by the Director of Community Development Services, noise and lighting to minimize any impacts to the developed adjacent residential areas. 4.2. Improvements 4. 2.1. t~arking The parking areas and vehicle loading areas indicated on the parking plan attached as EXHIBIT D constitute sufficient parking to .support the uses of the Enchanted Park Property existing on the date of this Agreement, and the 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 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 EXHImT D. These new stalls shall be constructed consistent with FWCC. 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 EXHImT 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 FWCC 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 FWCC. 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 example, lighting or laser light displays), shall not be regulated as "signs" under the FWCC. All signs on the Enchanted Park Property shall comply with applicable provisions of Concomitant Development Agreement #28060 IS361-2 LNGI$1.D(X~ 1/30/98 page 7 of 19 the Federal Way Sign Ordinance, codified at FWCC 22-335 and Article XVIII of the FWCC, or as amended, or shall comply with EXHImT C, as applicable. 4. 2. 4. Drainage, Water Quality, and Parking Lot Expansion Certain mitigation measures, as set forth in Section 4.2.4.1 below, and b~ed upon the drainage and water quality study contained in the attached EXHIBIT F, are required to control the flow and quality of runoff from the Property. Enchanted Park shall be required to maintain the drainage and water quality facilities described in EXHmIT F and the City acknowledges that such facilities, with the provisions required by Section 4.2.4.1 are adequate for Regional Commercial Recreational Facilities on the property. A new drainage and/or water quality study and additional drainage or water quality improvements shall be required, however, if: 1) 75% or more of the annexation area is redeveloped or proposed to be redeveloped into uses other than Regional Commercial Recreational Facility uses; 2) the drainage improvements serving the Property no longer meet state or federal drainage or water quality requirements; or 3) water leaving the Property fails to meet the then applicable water quality requirements. Approval Process ~ Parking Lot Expansion The proposed 1,065 parking lot expansion on the southern 11.47 acres (Parcel V as described on EXHIBIT A) will be granted Process III/Project Approval effective upon annexation. The layout of the improvements and use of Parcel V for parking has been reviewed and approved by the City contingent on meeting all required codes except as otherwise set forth in this agreement, and subject to approval of the annexation by the City Council. Prior to construction of any phase of the parking lot, final approval of the construction plans in conformance with the approved drainage study and all other city requirements must be obtained. The City will issue the necessary permits for the Phase I parking improvements within thirty (30) days after receiving the necessary permit applications for Phase I following the effective date of the annexation. In addition, construction of the Phase I parking improvements may only occur once the Part I drainage improvements have been completed. Process III/Project Approval for Phases I and II of the parking lot expansion shall be effective for seven (7) years from the date of approval. Drainage Improvements Part I Drainage Improvements -- These improvements consist of construction of pumping modifications necessary to operate Mud Lake as proposed in the Drainage System Evaluation of the Enchanted Village/Wild Waves Site, and water quality measures as described in the October 28, 1997 letter from ESM, Inc. l~xmmr F. They will include construction of a temporary control structure on the north side of the roadway fill of South 369th Street, and embankment compaction of the roadway fill from the control structure to the elevation of the control structure Concomitant Development Agreement #28060 15361-2 LNGIS.).DOC 1/30/98 page 8 of 19 overflow pipe. These requirements will allow the pumped discharge from Mud Lake to meet the requirements of the approved drainage study referenced above. These improvements shall be installed no later than September 30, 1998. Pumping Station Operation To assure reliable and safe operation of the new pumping station, Enchanted Park, Inc. shall comply with the following, which shall be included as conditions of any permits granted for the improvements described in Sections 4.2.4 and 4.2.4.1: Pumping shall be automatic, and shall be controlled by float switches or similar sensors. Manual backup capabilities shall be provided for use in the event there is a control malfunction. A high-water alarm shall be provided to notify security in the event the lake level exceeds a predetermined level. This feature will allow maintenance personnel to determine what is causing the pumping problem and to correct the problem before there is a danger of exceeding the maximum allowable lake levels.' Enchanted Parks personnel shall be trained in the use and maintenance of the pumping station, and shall keep an operations and maintenance manual in the station to guide them in taking care of the facilities, and in troubleshooting any problems. The pump station shall be equipped with lights and a heater to assure proper operation during winter months. Two pumps (one for standby) shall be provided. The pumps shall be operated alternatively, to minimize excessive wearing on either pump. A run time meter shall be provided on each pump to show the amount of actual pumping time, and to assist with scheduling maintenance work. Drainage Improvements ~ Parking Lot Expansion Part H Drainage Improvements m These improvements consist of the proposed 1,065 parking lot proposed for the 11.47-acre Parcel V. The parking lot expansion is proposed to occur in two phases, and at the option of Enchanted Park, the second phase of the parking lot improvements can be completed in two steps instead of one, provided that neither step is undertaken prior to the year 2002. : Phase I Parking ~ The first phase of the parking lot expansion will drain into Mud Lake per the approved drainage plan. This work will consist of clearing, grading, erosion-control measures, and construction of an asphalt-surfaced parking lot for approximately 393 stalls on approximately 3.5 acres immediately east of Milton Road and south the existing parking lot. Excess material removed from the Phase I parking area may be stored on the site, as shown on a Grading plan approved. Concomitant Development Agreement #28060 15361-2 LNGIS!.DOC 1/30/98 page 9 of 19 by the City, provided the stockpiled material does not exceed 15,000 cubic yards and is stockpiled consistent with the Grading plan. This stockpiled material will be used as fill material for the Phase II parking lot construction. Per the October 28, 1997, correspondence from ESM, Inc., water quality for the existing developed site (approximately 47 acres) as of the effective date of annexation is handled by Mud Lake which acts as a wet pond for the existing developed site, having approximately 1.89 times the required volume of 212,782 cubic feet. Phase II Parking ~ The second phase of the parking lot expansion will include clearing and grading as required to build the oversized detention ponds/wet pond in conformance with the Drainage System Evaluation of the Enchanted Village/lt'ild Waves Site, EXHIBIT F, and construction of the remaining parking lot. In this scenario, the clearing, grading and landscaping for the entire remaining site would be completed. The clearing and grading of the entire Phase II must be completed at one time even though the parking may be constructed in two steps due to the need to balance the earthwork on-site. If Enchanted Park decides to complete Phase II in two steps, the first step would include the construction of only a portion of the parking lot and the construction of the oversized detention pond/wet pond, with the remainder of the site being hydroseeded to control erosion until the second step of the Phase II parking, consisting of paving and striping, is completed. Any area cleared and graded in Phase II shall require the installation of the perimeter landscaping for the affected area, consistent with the Parking Landscaping Plan. EXHIBIT F-2. Water quality for Phase II parking lot improvements will be handled by the oversized detention pond/wet pond and appropriate water quality control measures. All drainage and water quality improvements shall be completed concurrent with any cleating and grading activities. Drainage - Pertnits So long as Enchanted Park is proceeding in good faith and with due diligence to satisfy its obligations hereunder, and has submitted plans for such improvements to the City at least six (6) months in advance of the respective compliance date, the obligation of Enchanted Park under Section 4.2.4 shall be conditioned upon the timely issuance by Federal Way and other agencies ~vith jurisdiction of such permits as may be required to authorize the improvements. If such compliance is delayed as a result of the failure of an agency (other than Federal Way) to issue permits or approvals required for this work, then the time for Enchanted Park's compliance shall be extended as necessary to accommodate such delays, provided that Enchanted Park posts a bond or other security acceptable to the City in an amount sufficient to secure the cost of such work. Concomitant Development Agreement . page 10 of 19 #28060 15361-2 LNGIS!.DOC 1/30/98 4. 2.5 Perimeter Landscaping Certain landscaping measures set forth in Section 4.2.5.1 below are required. The landscaping improvements for the replacement parking area as the result of the development of to the "Wild Thing" amusement ride shall be consistent with the existing landscaping on the parking lot to the south of the amusement ride arid shall be completed no later than ninety (90) days after the effective date of the Annexation. C~ C~ Landscaping Improvements Enchanted Park shall complete landscaping improvements to the perimeter landscape areas on the Enchanted Park Property as set forth on EXHIBIT G: Phase 1: Phase 2: Phase 3' November 31, 1999 November 31, 2000 November 31,2001 Proposed Parking Facility: Upon completion of the proposed parking facilities as described in EXHIBIT F-1, or upon completion of each phase of such parking facility, adjacent perimeter landscape areas, as shown on EXHIBIT F-2 shall also be completed, except as described in Section 4.2.4.4 So long as Enchanted Park is proceeding in good faith and with due diligence to satisfy its obligations hereunder, and has submitted plans for such improvements to the City at least six (6) months in advance of the respective compliance date, the obligation of Enchanted Park under this subsection shall be conditioned upon the timely issuance by Federal Way of a grading permit or other authorization, if required to permit the landscaping improvements. If such compliance is delayed as a result of the failure of an agency other than Federal Way to issue permits or approvals required for this work, then the time for Enchanted Park's compliance shall be extended as necessary to accommodate such delays, provided that Enchanted Park posts a bond or other security acceptable to the City in an amount sufficient to secure the cost and performance of such work. 4. 2. 6. 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 Deyelopment Services 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. Concomitant Development Agreement page 1 ! of 19 #28060 15361-2 LNGI5!.DOC 1/30/98 4.2. 7. 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 Agreement are permissible outdoor uses. 4. 2.8./tccess 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. 9. 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 Agreement, the parties, agree that the traffic generated by the uses and activities on the Enchanted Park Property is as set forth in EXHIBIT K, attached herein and incorporated herein. In the review of any future expansion of the water slide park and amusement park uses on the Property, the City shall recognize an occupant- to-vehicle ratio of 2.5 for such uses, consistent with the traffic report, EXHIBIT K. 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 the 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, Concomitant Development Agreement page 12 of 19 #28060 15361-2 LNGIS!.DOC 1/30/98 sidewalk, or other public improvements may be required under FWCC Section 22-1473. Enchanted Park shall be entitled to conduct uses and activities throughout the year on the Property that do not exceed the average daily and peak hour traffic levels identified in EXHIBIT K, 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 such mitigation fees as the City may prescribe by ordinance. In the ever]t traffic development fees or mitigation is imposed, the City agrees that it will allow Enchanted Park to utilize a "pay and go" system, under which the payment of the applicant's fair share impact fee or construction of any required on or off-site improvements will constitute full off-site mitigation, and shall satisfy any concurrency requirement of the City under the Growth Management Act; provided traffic study safety needs are addressed to the satisfaction of the City's Public Works Director. 7. REGULATION OF AMUSEMENT RIDES During the term of this 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 Agreement, certain renovation, repair, maintenance, expansion and redevelopment of the Enchanted Park Property will occur, as set forth in this 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. Any such activities will not require existing structures to be modified to comply with the FWCC, 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. 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 Article IV.A, Process I - Director's Approval or as set forth in Section 3.4 - Height Restrictions, and Concomitant Development Agreement #28060 15361-2 LNGIS!.DOC 1/30/98 page 13 of 19 SEPA, if applicable. 8.3. Parking Lot Expansion Enchanted Park shall be permitted to expand its parking facilities in three ph.ases, at its option, as described on EXHIBIT F-1 and EXHIBIT F-2, and Section 4.2.4. The parking area shall be constructed in accordance with Federal Way City Codes; and Enchanted Park shall be required to implement the drainage improvements set forth in Section 4.2.4 above in connection with any such development. 9. COMPLIANCE WITH OTHER CODES Enchanted Park acknowledges that nothing in this 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. TAX M^TTERS If Federal Way imposes any fee, tax, or other monetary charge based upon the use of the Enchanted Park Property, including without limitation, ticket taxes, admissions taxes or fees, or concessions taxes (an "Admission Tax") during the term of this Agreement, in consideration of the substantial cost to Enchanted Park of the improvements required under this Agreement, and to the extent authorized by law, Federal Way agrees that any Admission Tax will not be imposed upon any activities on the Property for a period of twelve (12) months following notice to Enchanted Park of the proposed tax. This Section shall not limit the City from imposing its local option business and occupation tax in accordance with state law. 11. OBLIGATION TO ANNEX The parties may elect to withdraw from this Agreement as follows: 11.I. Failure of Condition For purposes of this Agreement, the condition (as set forth in Sections 2 and 3 above) requiring adoption by the Federal Way City Council of certain ordinances shall not be deemed to be satisfied until such ordinances shall be adopted in proper form and substance and until all appeal periods with respect to such ordinances (or any review conducted in connection with such ordinances) shall have passed without any appeals having been filed. Concomitant Development Agreement #28060 15361-2 LNGIS!.DOC 1/30/98 page 14 of 19 11.2. Withdrawal Although Federal Way agrees to hold an annexation hearing as provided in Section 2, nothing in this Agreement obligates Federal Way to adopt a final annexation ordinance annexing any portion of'the annexation area nor to adopt this Agreement, but if Federal Way does not do so prior to July 1, 1998, then Enchanted Park may withd'raw from this Agreement as provided in this Agreement. Upon Federal Way's adoption of the Annexation Ordinance and approval of'this Agreement by both parties, this Agreement shall be binding upon Federal Way and Enchanted Park. Nothing in this Agreement shall prevent the annexation of' the Enchanted Park Property by Federal Way, upon proper fulfillment by Federal Way of' all petition and election procedures in accordance wida State law. · 12. GENERAL PROVISIONS 12.1. Governing Law This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington. 12.2. Binding on Successors; Assignment This 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 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 Agreement. This 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 Agreement, Enchanted Park shall have no further liability or obligations under this Agreement. 12.3. Recording This 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 Agreement is terminated, Federal Way will execute appropriate documents to so indicate. 12.4. No Severability The provisions of this Agreement are not severable. In the event any provisions of this Agreement are determined to be unenforceable or invalid by a court of law, then this Agreement shall thereafter be rendered voidable at the option of either party, which option shall be exercised in writing no 'later than ten (I 0) business days after the court determination or thereafter shall be deemed waived. Provided, that no such determination Concomitant Development Agreement #28060 15361-2 LNGIS!.DOC 1/30/98 page 15 of ! 9 *4' of invalidity occurring after the effective date of annexation shall affect the validity of the annexation. 12.5. 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 Agreement. Enchanted Park represents and warrants that it is the fee owner, contract purchaser, or lessee of the Enchanted Park Property. 12.6. Term of Agreement This Agreement shall remain in full force and effect for twenty (20) years from the effective date of this Agreement unless terminated prior to that date by the mutual agreement of the parties or by the City pursuant to Section 14 of the Concomitant Development Agreement. 12.7. Amendment This 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 Agreement and Exhibits, the Process VI procedures of the FWCC shall be utilized. At the request of Enchanted Park, the Director of Community Development Services may authorize minor modifications to the land use provisions set forth in this Agreement if the Director of Community Development Services determines that a proposed modification to this 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 Agreement; provided, however, notwithstanding the provisions of this 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. 12.8. Exhibits Exhibits A through L attached hereto are incorporated herein by this reference as if fully set forth. 12.9. 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. Concomitant Development Agreement #28060 15361-2 LNGIS!.DOC 1/30/98 page 16 of 19 12.10. Integration This 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. 13. 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 the annexation of the Enchanted Park Property and this Agreement, except to the extent resulting from the sole negligence of the City or its officers, agents, or employees in performance of this Agreement. 14. COMPLIANCE In the event Enchanted Park shall fail to satisfy any of its obligations under this 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 Land Use Code. In addition, Enchanted Park's failure to satisfy any of its material obligations in this Agreement shall constitute a breach of contract and shall be grounds for termination of this Agreement by the City. 15. POLICE POWER Nothing in this 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, but this agreement is an exercise of Federal Way's authority granted under RCW 35A. 14.330, and 1995 Washington State Laws, ch. 395, §§ 501-506 and other powers. 16. EFFECTIVE DATE This Agreement shall become effective upon the effective date of the City Ordinance approving this Agreement and approval of the Agreement by both parties. Dated as of the date first above written. Concomitant Development Agreement #28060 15361-2 LNGIS!.DOC 1/30/98 page 17 of 19 CITY OF FEDERAL WAY, Name Title a;Ty ENCHANTED PARKS, INC.,// a Washington co~as~on .x// / STATE OF WASHINGTON ~>. SS. COUNTY OF KING On tl~a7 p,ersonally appeared before me/~2~(2~'~.,~q4~44/, to me known to be the (~.',~..~f_~~~the CITY OF FEDE~L WAY, t~ ~cipal corporation t~xecuted the foregoing instrument, and acknowledged such instrument to be the free and voluntary act and deed of such a municipal corporation, for the uses and purposes therein mentioned, and on oath stated that [he/she] was duly authorized to execute such instrument. AND OFFICIAL SEAL this ~ y of GlV~ UNDER MY ~AND / ~~~' ~ , ,1998. NOTARY PUBLIC in and f~r the State of W~o~ residing at My Commission Expires Concomitant Development Agreement #28060 15361-2 LNGIS!.DOC 1/30/98 page 18 of i 9 STATE OF WASHINGTON COUNTY OF KING SS. On this day personally appeared before me ."J-q-("~C ~'¢.~c ~ , to me known to be the .{9/1 ~ '~,[[~.v'lc of ENCHANTED PARKS, INC., the corporation that executed the foregoing instrument, and acknowledged such instrument to be the free and voluntary act and deed of such corporation, for the uses and purposes therein mentioned, and on oath stated that [he/she] was duly authorized to execute such instrument. GIVEN UNDER MY HAND AND OFFICIAL SEAL this ,,,D'7h- day of y"'v'~ a.~,,.~-_K.. ,1998. NOTARY I:~JBLIC in and for the State of Washington, residing at My Commission Expires Co' q' Concomitant Development Agreement #28060 15361-2 LNGIS!.DOC 1/30/98 page 19 of 19 oo ESM inc. ( EXHIB ',' A A CIVIL ENGINEERING. LANO SURVEY, At, lO PROIECT A.4ANAGEt~4ENT CONSULTING FI P-J~ Job No. 163-03-950-006 _ o tobe PAGE_L_OF 2. LEGAL DF_,SC~[PT[OH FOR ~']L"[OH TO T~F., CiTY OF EEDEt:bM[., WAY TEEHC£ southe, aster[y along said southwesterly m~rgin to the PO[HT OF BEG~G. S~e a~ch~ E~ibit ~B". Wri~cn by: C.A.F. Choked by: R.I.W. 7~ ~ 34a~ ~ ' F~eral Way, Wash~ ga Those portions of thc southwest quarter of Section 28 AHD of the southeast quarter of Section 29 Alql) of t~e northeast qua~'t~ of Section 32 ~ of the northwest qua:t~ of S~'fion 33,.,~,L in Township 21 North, flange 4 East, W.IvL, King County, Washin~oR, being more pa~ticul=ly :described as follows: BEGE'THII'/G at the nordtcastody com~ of P~'cd "Z" of "Regency Woods Division [" accordLng to the plat thee-eof recorded ia Volume 154 of Plats, Pages 81 through 97, inclusive, Records of King Col,mty, Washington; ~CE southeasterly along the northeasterly line off said parcel, said llne being coincident with the southwesterly margin of Enchanted Parkway (AKA S$II No. S-D / Kit Comer Road South I SR t61) to the northwesterly m .argin of 19th Way South as shown on said plak 'I'HHNCI~ southwesterly along said northwesterly margin to the northerly margin of South 369th Str?t. as shown on the plat o£ "Reg~¢y Woods Division 2" according to the plat thereof re.kind in Volume 156 of Plats, Pages t6 through 20, ia¢lnsive, Records of King County, Washington; ~CE westerly along said ao~lherly margin and the westerly extension thereof to the easterly margin of aR $ (Alia P~H No. 1), also being the City of Federal Walt' Limits as defined by King County Code Ordinance No. 8779; THENCE noctherty along said e.~csterly margin to said southwesterly margin of Enchanted Parlcway; ..... '" '" -' Fedet'zl Way (2061 1:314111 · Ta¢om~ (lOGI "117.061g - Sea~le (2061 &ll-Sgll - Fa~ (2061 838-?104 ' EXHIBIT "B" TO ACCOMPANY LEGAL DESCRIPTION FOR ANNEXATION A PORTION OF SECTIONS 26, 29, .~2 ANO 55. TWP. 21 N., RGE. 4 E.., W.M.. KING COUNTY. WASHINGTON PAG.F._.:_~_C,:' ~ . SCALE: I" = 400' 0 400 600 (~) W.~O.O.T. ol EXHIBIT PAGE.__LOF I EXHIBIT C Office Park Zone (OP-4) Development Regulations L PURPOSEAND OBJECTIVES These Offce Park Zone (OP-4) development regulations are established to §ovem the operation and development ot'a Regional Commercial Recreation Facility and other permitted uses ns defined herein, and as descfibod in any Concomitant Development Agreement pursuant to Federal Way City Code (FWCC) 19-104 [or property zoned OP-4. APPLICABILITY A. Thc provisions of this 'Section will apply to all lands zoned OP-4, which shall be subject to its own unique stanclards and review processes as set forth herein and in any Concomitant Development Agreement pursuant to Federal Way City Code (FWCC) 19-104 for property zoned OP-4. If the provisions relating specifically to the OP-4.Zone conflict with other provisions of City codes or any Concomitartt Development Agreement, these OP-4 Zone provisions shall prevail. Afte: the effective date of a Concomitant Development Agreement, any change in FWCC referenced in any Concomitant Development Agreement shall not be deemed to modify this Zone except as otherwise provided in the Concomitant Development Agreement. B. Reference herein to the "FWCC" shall refer to Chapters 18, 20, 21 and 22 of the Federal Way City Code. Reference herein to the "Director" shall refer to the City's Director of the Department of Community Services or designee. 3. Usgs PEmvirrrgu A. In addition to the uses aliowed in the Office Park Zone of the FWCC, the following principal uses are permitted outright: 1. Regional Commercial Recreational Facility as defined herein; 2. Hotel on a parcel not to exceed five (5) acres and as regulated by Sec. 22-757 Exhibit C Office Park Zone (OP-4) Development Regulations page I of 4 EXHIBIT C PAGE I OF FWCC, except as otherwise set forth in these Development Regulations; 3. Restaurants as regulated by Sec. 22-753 FWCC. except as otherwise set forth in these Development Regulations; 4. Retail establishments that provide entertainment, recreational and cultural services, or activities; and Retail Sales, general and specialty not to exceed an amount of square feet ofgross floor area on land described in a Concomitant Development Agreement pursuant to .Federal Way City Code (FWCC) 19-104; 5. Caretaker residence. B. Regional Commercial Recreational Facility shall mean a use operated for ProfiL with private facilities, equipment and/or services, both indoor and outdoor for entertainment and teereatiunal pu¥oses, including large= and small-scale amusement fides, roller coasters, aquatic park facilities, swimming pools, accessory video mad movie facilities, petting zoos, and other similar uses. Such a use shall be .cfa scale or offer unique recreational opportunities so ustc provide recreational services cfa regiomal nature. The use of such area may be lin~ted to private membership or may be open to the public upon payment cfa fee. C. Accessory Uses. The following accessory uses shall be reviewed using that process associated with the permitted use to which it is attached: 1. Warehousing and distributing, secondary to permitted primary uses provided such use does not exceed twenty-five porcent (25%) of the permitted use; - 2. Outdoor storage; and 3. Any other use determined by the Director to be compatible with the above accessory or permitted uses pursuant to Section 22-946 of the FWCC. D. Temporary Uses. The following temporary uses may be conducted in this Zone and are exempt from the requirement of Article X, Chapter 22 of the FWCC: Temporary use in this Zone shall include seasonal retail sale of agricultural products such as vegetables, fruit, or flower stands; community festivals; outdoor sales of recreational vehicles; boat shows; or other parking lot sales, provided each temporary use exists for no more than seventy-five (75) days in every three hundred (300) days. Exhibit C Office Park Zone (OP-4) Development Regulations page 2 of 4 EXHIBIT C e_L$ PAGE_., OF 4. (~EHERAL DEVELOPMENTSTAHDARDS AHD REVi£W PROCEDURES A. Except for Regional Commercial Recreational Facilities, the development standards and review procedures for all uses, except as otherwise set forth in a Concomitant Development Agreement pursuant to Federal Way City Code (FWCC) 19-104, shall conform with those identified by the corresponding use in the FWCC Office Park Zone as appropriate. In the event a non Regional Commercial Recreational Facility use permitted in the OP-4 zone is not permitted in the FWCC Office Park Zone, then those development standards and review proc~xl, ures identified for the specific use in the fu'st zone where the use is allowed, shall apply, except as otherwise set forth in this Agreement; provided, however, that Process II, Article V, Chapter 22, of the FWCC shall be applied to all such uses. For Regional Recreational Facilities within the developed area as shown on EXHIBIT J, Chapter 22, of the FWCC, Article IV.A, Process I - Director's Approval, shall be utilized for all such proposed uses. For all other Regional Recreational Facilities, Process II, Article V, Chapter 22 of the FWCC shall govern. B. The height restriction for property zoned OP4 shall be thirty-five (35) feet unless otherwise established by a Concomitant Development Agreement pursuant to Federal Way City Code (FWCC) 1%104 between the City of Federal Way and the Property Owner. C. Any proposed new development, requiring a development permit, approval of a plan and a'landscaping plan, shall submit such plans in compliance with the requirement of the FWCC, except as otherwise set forth in a Concomitant Development Agreement pursuant to Federal Way City Code (FWCC) 19-104: 1. The required site plan shall be limited to the area which would be disturbed by any proposed structure or proposed impervious surface. 2. The boundaries of any required landscape plan shall be coterminous with the disturbed area. 5. ENVIRONMENTALLY SENSITIVE A. REAS A. Any portion of property zoned OP4 which is classified as environmentally sensitive -Exhibk C Office Park Zone (OP-4) Oevclopment Regulations page 3 of-~ EXHIBIT C. PAGE OF' ,, pursuant to Chapter 22, Article XIV (environmentally sensitive areas) of the Federal Way City Code, and on which new development is proposed shall comply with the requirements therein, except as provided in subsection B below. B. Thc provisions of Chapter 22, Article XIV (environmentally sensitive area~) shall not apply: to new development within artificially-created lakes, wetlands, streams, or surface water retention ponds, or their required setbacks or buffers, except that thc provisions of Chapter 22, Article XIV shall apply to any development proposed in lakes, wetlands, or streams (or their required setbacks or buffers) created as mitigation for impacts to wetlands, lakes or streams. Notwithstknding any requirements in FWCC Section 22-335 or FWCC Section 22-1601, a Regional Commercial Recreational Facility may have no more than one regional, high profile, freestanding sign as defined in this Section of the OP4 Zone. Such a sign shall be in lieu of, not in addition to, one of the two high profile signs that might otherwise be allowed under FWCC Section 22-I 601. A regional, high profile, freestanding sign shall be allowed only in connection with Regional Commercial Recreational Facility use, and shall be removed at such time when more than fifty percent (50%) of the square footage of the area devoted to such existing uses as shown on EXHImT B are converted to uses other than Regional Commercial Recreational Facility uses. Upon removal cfa regional, high-profile, freestanding sign, FWCC Section 22-1601 shall regulate high profile signs on the OPM Zoned. property. ,~-regional. high profile, freestanding sign must be located near to a regional transportation system (such as an interstate highway), must be located at least three hundred (300) feet from any area zoned residential along SR 161 and $. 369th Street, and may be up to seventy-five (75) feet high and up to thirteen hundred (1,300) square feet in area. £xhibit C Office Park Zone (OP-4) Development Rcgulations page 4 of 4 EXHIBIT C.. PAG I1~ttlIII1~11111111 EXHIBIT~ PAG E_/__OF_I .... /! E×HIBIT.~ aa ~ PA(liE I OF~ c '-i l llllllllllllllllfl III.IIIIIIIIII~IIU .. llllllllllllllUin IIIIIHIIIIIIIIIIU '~illlllllllltllllll~ UIIItlIIIIIIIIIIIIIU _-om i~. ENCHANTED PARKS, IHC. M~'LO WAVEs I~ARYJNa LOT X .I ~r" ~'{~ Landscape Plan ltl:{',' ,hill I:!]l h? I IiI Il i11{ ! {l,r ' !I!t,{ ifil {II!{ lc,,, Landscape Plan , ( .,,-'. J!, [ii '~.,f j,, './ "':~! '... ~.~ / · ' /~ "-~---' · '-',:; .'~-"- .':~--.' :~ -`~' ::.'.' '~' '..', ~ · '-' ~ ' "7.-~..'. ...........~ "=' ?'' '-" ' ' / . .: . . .~. .~:. .. : o. . .~ ~ /-.~.-...~.-. ..: ,~,'.: -. i J . ' -. :. :j -~: ..... :..~--.._..~' " "'~':' '~'~ ~ ' -~ .............. '"~ ,'S ...... · ~ 'Ii : ,,- _i.. o Ii i~ EXHIBi __ _o$ PAGE___I. / 'C~ J ] :'" EXHIBIT Mr. Jeff Stock Enchanted Parks 31919 1st Avenue S. Suite 100 Federal Way, WA 98003 Re: Traffic Generation Study Enchanted Parks Ch~s[ophcr Drown e' ^~r, ociatcs% 879 I~,inicr Avcnuc N.. <~uitc A-20! [~cnl.on. ~;A 980~-D80 (=O6) ~m-[[~8 r.x ~.4~' _./ August 26,-1994 C".~ Cr~ C~ Dear Mr. Stock, Please find the results of trip generation study commissioned for the Enchanted Parks. Incidentally, this dar; is si~e specific and obviously unique to your site. HoWever, with "employees" and "acres" as independent variables the data could then apply to any similar facility. Further, since you know your ticket sales by day-o~-week and month-of-year you can also estimate t~affic demands by ratio. If you have any questions,'pl~ase call. Yours truly, jjh/CVS "encl. EXHIBIT__~, _,_¢ ~ PAGE I .oF...~ ...... ,) 'l'mfl~c En$inccr,s ~' q'~n,sportotion Plonncr,s EXHIBIT ,/tI , r~j3 Enchanted Parks Traffic Volumes Period Daily volumes Peak Hour Traffic Volum~ (Site) AM-Peak Hour (11:00-Noon) (in) (out) :PM Peak ~our (7:00-8:00) (in) (out) Peak Hour Traffic (Adjacent Street) AM 7:00-9:00 (in} (out) PM 4:00-6:00 (in) (out.) Friday Saturday Sunday 8/12/94 8/13/94 8/~4/94 1,929 2,360 513 135 11t 520 27 22 100 261 2,563 523 123 138 662 NA NA NA NA Note: Occupant to vehicle ratio = 2.5 408 97 51 510 NA HA NA NA EXHIBIT e' PAG .... Traffic Volumes 0 CD 0 0 0 0 ~-:.. 0 0 0 0 o 0 0 ;, .: ~ I' I I Traffic Volumes ~ 1~ ¢..,3 ~ ~ O~ ',4 ,:'~:, 0 O 0 0 0 0 0 0 T'raffic Volumes I PAG E..~,~_O~r5 CONCOMITANT DE VEL OPMENT AGREEMENT I I The City of Federal Way Enchanted Parks, Inc. DATE: 1/30/98 I:\ENCHTEDW~CONCOMAG.CC/March 25, 1998 TABLE OF CONTENTS 2. 3. 3.1. 3.2. 3.2.1. 3.2.2. 3.3. 3.3.1. 3.3.2. 3.3.3. 3.4. 3.5. 3.6. 4. 4.1. 4.2. 4.2.1. 4.2.2. 4.2.3. 4.2.4. 4.2.5. 4.2.6. 4.2.7. 4.2.8. 4.2.9. 4.3. 5. 6. 7. 8. 8.1. 8.2. 8.3. 9. 10. 11. 11.1. 11.2. 12. Definitions ....................................................... 3 Petition for Annexation ............................................. 3 Establishment of Planning and Zoning ................................. 4 Comprehensive Plan ............................................... 4 Zoning .......................................................... 4 Permitted Uses .................................................... 4 Development Regulations ........................................... 4 Environmentally Sensitive Areas ...................................... 4 Mud Lake ........................................................ 4 Parking Lot Expansion Area ......................................... 5 Parcel Q ......................................................... 5 Height Restrictions ................................................. 5 Retail Sales ....................................................... 6 Street Vacation .................................................... 6 Conformity of Existing Uses and Development Within the Developed Area .... 6 Hours of Operation ................................................ 6 Improvements .................................................... 7 Parking .......................................................... 7 Existing Parking ................................................... 7 Signage .......................................................... 7 Drainage, Water Quality and Parking Lot Expansion ...................... 8 Perimeter Landscaping ......................... · .................... 11 Extensions of Time ............................................... 11 Outdoor Uses .................................................... 12 Access ......................................................... 12 Lighting ........................................................ 12 Traffic ......................................................... 12 Utility Service ................................................... 12 Mitigation and Impact Fees ......................................... 12 Regulation of Amusement Rides ..................................... 13 Future Improvements .............................................. 13 Maintenance and Renovation Activities Within the Developed Area ......... 13 Amusement Rides ................................................ 13 Parking Lot Expansion ............................................. 13 Compliance with Other Codes ....................................... 14 Tax Matters ..................................................... 14 Obligation to Annex ............................................... 14 Failure of Condition ............................................... 14 Withdrawal ...................................................... 15 General Provisions ........... - ..................................... 15 Concomitant Development Agreement page i of ii #28060 15361-2 LNG 15!.DOC 1/30/98 12.1. 12.2. 12.3. 12.4. 12.5. 12.6. 12.7. 12.8. 12.9. 12.10. 13. 14. 15. 16. Governing Law ............................ ...................... 15 Binding on Successors; Assignment .................................. 15 Recording ....................................................... 15 No Severability .................................................. 15 Authority ....................................................... 16 Term of Agreement ............................................... 16 Amendment ..................................................... 16 Exhibits ........................................................ 16 Headings ....................................................... 16 Integration ...................................................... 17 Indemnification .................................................. 17 Compliance ..................................................... 17 Police Power .................................................... 17 Effective Date ................................................... 17 LIST OF EXHIBITS EXHIBIT A EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT F- 1 EXHIBIT F-2 EXHIBIT G EXHIBIT H EXHIBIT I EXHIBIT J EXHIBIT K EXHIBIT L Legal Description Site Plan - Structures Office Park 4 Zone (Op-4) Development Regulations Site Plan - Parking Height Restrictions - Area Map Drainage Improvements (Summary - Complete Text at City Hall) & October 28, 1997, Letter from ESM, Inc. Parking Lot Expansion - Site Plan Parking Lot Expansion - Landscape Plan Landscaping Site Plan - Access Site Plan - Lighting Site Plan - Development Activities Traffic Report Wetlands Report Concomitant Development Agreement page ii of ii #28060 15361-2 LNG15!.DOC 1/30/98 CONCOMITANT DEVELOPMENT AGREEMENT Enchanted Park TH,S AGm~I~MElqT is made and entered into this t_'f~ day of Jb]~)C~ , 1998, by ~d between the CITY OF FEDE~L WAY, a non-cha~er optional municipal code city organized ~d existing under the laws of the State of Washinston (the "City" or "Federal Way"), ~d ENCHANTED PA~S, INC., a Washington corporation ("Ench~ted P~k"). RECITALS Federal Way has the authority under RCW 36.70B. 170-.210 and Chapter 19, Section 104 of the Federal Way City Code (FWCC) 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 ch. 35A.14 RCW. 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"). 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. The City and. King County have been conducting certain planning efforts as required by the Growth Management Act, RCW 36.70A. Both the County and the City have identified the Property as within King County's Urban Growth Area, and both parties have previously agreed that the Property is within the potential annexation area of Federal Way. The Property is currently zoned "Regional Business", "Neighborhood Business" and "Urban Residential (4 alu/ac)" by King County and the zoning map effective August 1, 1996, of the City of Federal Way designates the property OP-4. Concomitant Development Agreement page I of 19 #28060 15361-2 LNGI5!.DOC 1/30/98 Enchanted Park is contemplating annexation of the Property into the City; however, Enchanted Park seeks certainty as to the zoning and other regulations which would be applicable to the Property should it be annexed into the City. The City is interested in annexing the Property because it is located within the City's potential annexation area and urban services can be adequately provided. In addition, the City recognizes numerous public benefits associated with the annexation of the Property, i.e., managing growth and fiscal benefits, as well as intangible benefits that may be associated with having Enchanted Park's facility located within the City limits. The City has reviewed an environmental checklist in connection with this Concomitant Development Agreement (the "Agreement"). In compliance with the State Environmental Policy Act ("SEPA") and the City of Federal Way SEPA procedures, the City prepared an environmental impact statement (EIS) for the City of Federal Way's Comprehensive Plan, adopted November 21, 1995, and Zoning Ordinance, which EIS reviewed and considered the Comprehensive Plan and Zoning designation for the Enchanted Park Property, but did not review the development regulations of the zoning for the property that are contemplated by this Agreement. The City has reviewed an Environmental checklist for the proposed actions included within this Concomitant Agreement and has issued a Determination of NonSignificance and subsequent Addendum. Future development actions not contemplated in this Agreement shall be subject to their own SEPA review. Enchanted Park and neighboring property owners submitted to Federal Way a petition to commence annexation proceedings. On March 21, 1995, the Federal Way City Council met to discuss the Enchanted Park Annexation. The Federal Way City Council directed that for the Enchanted Park Property, Federal Way would adopt upon annexation specific zoning and land use regulations to govern that property for the period of time set forth in the Concomitant Development Agreement to be approved by the City Council. 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 Agreement. The parties now wish to enter into this 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 Agreement, the parties hereby covenant and agree as follows: Concomitant Development Agreement page 2 of 19 #28060 15361-2 LNGI5!.DOC 1/30/98 AGREEMENTS 1. DEFINITIONS For the purposes of this Agreement, the following terms shall have the meanings set forth below: 1. "FWCC" shall mean the Federal Way City Code as presently enacted or hereafter amended. 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 Agreement shall not apply to the King County- owned property. 3. "Enchanted Park Property" or "Property" shall mean that certain property legally described in EXHIBIT A attached hereto. 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, chapters 18 through 22 of the FWCC, as may hereafter be amended. 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. 6. "Zoning Code" shall mean Chapter 22 of the Federal Way City Code. 2. PETITION FOR ANNEXATION The parties understand that Enchanted Park has filed a petition for annexation with the City conditioned on obtaining a Concomitant Development Agreement adopted by the City Council. The parties agree that no notice of intent to annex or annexation action may be filed with the Boundary Review Board until this Concomitant Development Agreement has been fully executed by both parties and the City has adopted the pre-annexation land use zoning regulations set forth in Section 3. herein by ordinance. In the event pre-annexation land use zoning regulations acceptable to Enchanted Park is not approved by the City by July 1, 1998, then Enchanted Park may withdraw its support for this annexation. Following execution of this Concomitant Development Agreement, the City agrees to submit to the Washington State Boundary Review Board of King County Concomitant Development Agreement page 3 of 19 #28060 15361-2 LNGI5!.DOC 1/30/98 ("BRB") a notice of intent to annex the Property described in the petition for annexation. 3. ESTABLISHMENT OF PLANNING AND ZONING 3.1. Comprehensive Plan The City Council has lawfully established a "Commercial Recreation" classification for the Property on the City official comprehensive plan map, pursuant to FWCC Section 19-100(b) and the City of Federal Way's Comprehensive Plan. 3.2. Zoning If the petition for annexation is approved by the City, and BRB review is not invoked, or in the alternative, if BRB jurisdiction is invoked but the review process sustains the petition for annexation, then the City shall lawfully adopt an ordinance annexing the Property subject to application of the Office Park-4 Zone, and the OP-4 development regulations; Exhibit C, hereto. The City may also, upon approval of the petition for annexation, simultaneously adopt an ordinance annexing the property effective upon passage of forty-five (45) days or issuance of a BRB decision sustaining the annexation if BRB jurisdiction is invoked. 3.2.1. Permitted Uses All those uses permitted in the OP-4 zone, as set forth in this 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 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 past twenty (20) years, 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 Chapter 18, Article III, "Shoreline Management" or Chapter 22, Article XIV, "Environmentally Sensitive Area" of the FWCC. Concomitant Development Agreement page 4 of 19 #28060 15361-2 LNGI5!.DOC 1/30/98 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 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 22, Article XIV of the "Environmentally Sensitive Areas" of the FWCC 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: Area Regional Commercial Number Recreational Facility Uses 1 35' 55' base height, maximum height 75's 3 125' HEIGHT RESTRICTIONS Non-Regional Commercial Recreational Facility Uses 3 stories or 35', whichever is greater 55' base height, maximum of 70', for office uses 55' base height, maximum of 75' for hotelss 35' base height, maximum of 55' for all other usess 55' base height, maximum of 70', for office uses 55' base height, maximum of 75' for hotels ~ 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. Concomitant Development Agreement page 5 of 19 t/28060 15361-2 LNGI5!.DOC 1/30/98 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. 3.6. Street Vacation The City shall support, or upon annexation of the Property will complete the process for vacation of right-of-way currently pending before King County, File No. 9400935, provided only that portion of the right-of-way not needed for potential widening of Milton Road is vacated. 4. CONFORMITY OF EXISTING USES AND DEVELOPMENT WITHIN THE DEVELOPED AREA The City agrees that, upon annexation, all existing uses, buildings and development on the Property may continue in existence as is, and will not require alteration to conform to any different Federal Way standards, except as provided for elsewhere in this 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 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 FWCC, except as otherwise required by this Agreement. The provisions of Chapter 22, Article IV "Nonconformance" FWCC, 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 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 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 Concomitant Development Agreement page 6 of 19 #28060 15361-2 LNGI5!.DOC 1/30/98 directed by the Director of Community Development Services, 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 constitute sufficient parking to support the uses of the Enchanted Park Property existing on the date of this Agreement, and the 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 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 FWCC. 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 FWCC 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 FWCC. 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 example, lighting or laser light displays), shall not be regulated as "signs" under the FWCC. All signs on the Enchanted Park Property shall comply with applicable provisions of Concomitant Development Agreement page 7 of 19 #28060 15361-2 LNGI5!.DOC 1/30/98 the Federal Way Sign Ordinance, codified at FWCC 22-335 and Article XVIII of the FWCC, or as amended, or shall comply with EXHIBIT C, as applicable. 4. 2. 4. Drainage, Water Quality, and Parking Lot Expansion Certain mitigation measures, as set forth in Section 4.2.4.1 below, and based upon the drainage and water quality study contained in the attached EXmmT F, are required to control the flow and quality of runoff from the Property. Enchanted Park shall be required to maintain the drainage and water quality facilities described in EXHIBIT F and the City acknowledges that such facilities, with the provisions required by Section 4.2.4.1 are adequate for Regional Commercial Recreational Facilities on the property. A new drainage and/or water quality study and additional drainage or water quality improvements shall be required, however, if: 1) 75% or more of the annexation area is redeveloped or proposed to be redeveloped into uses other than Regional Commercial Recreational Facility uses; 2) the drainage improvements serving the Property no longer meet state or federal drainage or water quality requirements; or 3) water leaving the Property fails to meet the then applicable water quality requirements. Approval Process -- Parking Lot Expansion The proposed 1,065 parking lot expansion on the southern 11.47 acres (Parcel V as described on EXHIBIT A) will be granted Process III/Project Approval effective upon annexation. The layout of the improvements and use of Parcel V for parking has been reviewed and approved by the City contingent on meeting all required codes except as otherwise set forth in this agreement, and subject to approval of the annexation by the City Council. Prior to construction of any phase of the parking lot, final approval of the construction plans in conformance with the approved drainage study and all other city requirements must be obtained. The City will issue the necessary permits for the Phase I parking improvements within thirty (30) days after receiving the necessary permit applications for Phase I following the effective date of the annexation. In addition, construction of the Phase I parking improvements may only occur once the Part I drainage improvements have been completed. Process III/Project Approval for Phases I and II of the parking lot expansion shall be effective for seven (7) years from the date of approval. Drainage Improvements Part I Drainage Improvements -- These improvements consist of construction of pumping modifications necessary to operate Mud Lake as proposed in the Drainage System Evaluation of the Enchanted Village~Wild Waves Site, and water quality measures as described in the October 28, 1997 letter from ESM, Inc. EXHIBIT F. They will include construction of a temporary control structure on the north side of the roadway fill of South 369th Street, and embankment compaction of the roadway fill from the control structure to the elevation of the control structure Concomitant Development Agreement page 8 of 19 //28060 15361-2 LNGI5!.DOC 1/30/98 overflow pipe. These requirements will allow the pumped discharge from Mud Lake to meet the requirements of the approved drainage study referenced above. These improvements shall be installed no later than September 30, 1998. Pumping Station Operation To assure reliable and safe operation of the new pumping station, Enchanted Park, Inc. shall comply with the following, which shall be included as conditions of any permits granted for the improvements described in Sections 4.2.4 and 4.2.4.1: Pumping shall be automatic, and shall be controlled by float switches or similar sensors. Manual backup capabilities shall be provided for use in the event there is a control malfunction. A high-water alarm shall be provided to notify security in the event the lake level exceeds a predetermined level. This feature will allow maintenance personnel to determine what is causing the pumping problem and to correct the problem before there is a danger of exceeding the maximum allowable lake levels. Enchanted Parks personnel shall be trained in the use and maintenance of the pumping station, and shall keep an operations and maintenance manual in the station to guide them in taking care of the facilities, and in troubleshooting any problems. The pump station shall be equipped with lights and a heater to assure proper operation during winter months. Two pumps (one for standby) shall be provided. The pumps shall be operated alternatively, to minimize excessive wearing on either pump. A mn time meter shall be provided on each pump to show the amount of actual pumping time, and to assist with scheduling maintenance work. Drainage Improvements -- ParMng Lot Expansion Part II Drainage Improvements- These improvements consist of the proposed 1,065 parking lot proposed for the 11.47-acre Parcel V. The parking lot expansion is proposed to occur in two phases, and at the option of Enchanted Park, the second phase of the parking lot improvements can be completed in two steps instead of one, provided that neither step is undertaken prior to the year 2002. Phase I Parking- The first phase of the parking lot expansion will drain into Mud Lake per the approved drainage plan. This work will consist of clearing, grading, erosion-control measures, and construction of an asphalt~surfaced parking lot for approximately 393 stalls on approximately 3.5 acres immediately east of Milton Road and south the existing parking lot. Excess material removed from the Phase I parking area may be stored on the site, as shown on a Grading plan approved Concomitant Development Agreement page 9 of 19 //28060 15361-2 LNG15!.DOC 1/30/98 by the City, provided the stockpiled material does not exCeed 15,000 cubic yards and is stockpiled consistent with the Grading plan. This stockpiled material will be used as fill material for the Phase II parking lot construction. Per the October 28, 1997, correspondence from ESM, Inc., water quality for the existing developed site (approximately 47 acres) as of the effective date of annexation is handled by Mud Lake which acts as a wet pond for the existing developed site, having approximately 1.89 times the required volume of 212,782 cubic feet. Phase H Parking -- The second phase of the parking lot expansion will include clearing and grading as required to build the oversized detention ponds/wet pond in conformance with the Drainage System Evaluation of the Enchanted I/illage/Wild Waves Site, EXHIBIT 1h`, and construction of the remaining parking lot. In this scenario, the clearing, grading and landscaping for the entire remaining site would be completed. The clearing and grading of the entire Phase II must be completed at one time even though the parking may be constructed in two steps due to the need to balance the earthwork on-site. If Enchanted Park decides to complete Phase H in two steps, the first step would include the construction of only a portion of the parking lot and the construction of the oversized detention pond/wet pond, with the remainder of the site being hydroseeded to control erosion until the second step of the Phase II parking, consisting of paving and striping, is completed. Any area cleared and graded in Phase II shall require the installation of the perimeter landscaping for the affected area, consistent with the Parking Landscaping Plan, EXHIBIT F-2. Water quality for Phase II parking lot improvements will be handled by the oversized detention pond/wet pond and appropriate water quality control measures. All drainage and water quality improvements shall be completed concurrent with any clearing and grading activities. Drainage - Permits So long as Enchanted Park is proceeding in good faith and with due diligence to satisfy its obligations hereunder, and has submitted plans for such improvements to the City at least six (6) months in advance of the respective compliance date, the obligation of Enchanted Park under Section 4.2.4 shall be conditioned upon the timely issuance by Federal Way and other agencies with jurisdiction of such permits as may be required to authorize the improvements. If such compliance is delayed as a result of the failure of an agency (other than Federal Way) to issue permits or approvals required for this work, then the time for Enchanted Park's compliance shall be extended as necessary to accommodate such delays, provided that Enchanted Park posts a bond or other security acceptable to the City in an amount sufficient to secure the cost of such work. Concomitant Development Agreement page 10 of 19 #28060 15361-2 LNG15!.DOC 1/30/98 4. 2. 5 Perimeter Landscaping Certain landscaping measures set forth in Section 4.2.5.1 below are required. The landscaping improvements for the replacement parking area as the result of the development of to the "Wild Thing" amusement ride shall be consistent with the existing landscaping on the parking lot to the south of the amusement ride and shall be completed no later than ninety (90) days after the effective date of the Annexation. Landscaping Improvements Enchanted Park shall complete landscaping improvements to the perimeter landscape areas on the Enchanted Park Property as set forth on EXHIBIT G: Phase 1: Phase 2: Phase 3: November 31, 1999 November 31, 2000 November 31,2001 Proposed Parking Facility: Upon completion of the proposed parking facilities as described in EXHIBIT F-l, or upon completion of each phase of such parking facility, adjacent perimeter landscape areas, as shown on EXHIBIT F-2 shall also be completed, except as described in Section 4.2.4.4 So long as Enchanted Park is proceeding in good faith and with due diligence to satisfy its obligations hereunder, and has submitted plans for such improvements to the City at least six (6) months in advance of the respective compliance date, the obligation of Enchanted Park under this subsection shall be conditioned upon the timely issuance by Federal Way of a grading permit or other authorization, if required to permit the landscaping improvements. If such compliance is delayed as a result of the failure of an agency other than Federal Way to issue permits or approvals required for this work, then the time for Enchanted Park's compliance shall be extended as necessary to accommodate such delays, provided that Enchanted Park posts a bond or other security acceptable to the City in an amount sufficient to secure the cost and performance of such work. 4.2. 6. 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 Services 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. Concomitant Development Agreement page 11 of 19 #28060 15361-2 LNGIS!.DOC 1/30/98 4.2. 7. 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 Agreement are permissible outdoor uses. 4. 2. 8. 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. 9. 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 Agreement, the parties agree that the traffic generated by the uses and activities on the Enchanted Park Property is as set forth in EXa-IIBIT K, attached herein and incorporated herein. In the review of any future expansion of the water slide park and amusement park uses on the Property, the City shall recognize an occupant- to-vehicle ratio of 2.5 for such uses, consistent with the traffic report, EXHIBIT K. 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 the 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, Concomitant Development Agreement page 12 of 19 #28060 15361-2 LNGI5!.DOC 1/30/98 sidewalk, or other public improvements may be required under FWCC Section 22-1473. Enchanted Park shall be entitled to conduct uses and activities throughout the year on the Property that do not exceed the average daily and peak hour traffic levels identified in EXHIBIT K, 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 such mitigation fees as the City may prescribe by ordinance. In the event traffic development fees or mitigation is imposed, the City agrees that it will allow Enchanted Park to utilize a "pay and go" system, under which the payment of the applicant's fair share impact fee or construction of any required on or off-site improvements will constitute full off-site mitigation, and shall satisfy any concurrency requirement of the City under the Growth Management Act; provided traffic study safety needs are addressed to the satisfaction of the City's Public Works Director. 7. REGULATION OF AMUSEMENT RIDES During the term of this 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 Agreement, certain renovation, repair, maintenance, expansion and redevelopment of the Enchanted Park Property will occur, as set forth in this 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. Any such activities will not require existing structures to be modified to comply with the FWCC, 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. 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 Article IV.A., Process I - Director's Approval or as set forth in Section 3.4 - Height Restrictions, and Concomitant Development Agreement page 13 of 19 /128060 15361-2 LNGI5!.DOC 1/30/98 SEPA, if applicable. 8.3. Parking Lot Expansion Enchanted Park shall be permitted to expand its parking facilities in three phases, at its option, as described on EXHIBIT F-1 and EXHIBIT F-2, and Section 4.2.4. The parking area ~hall be constructed in accordance with Federal Way City Codes; and Enchanted Park shall be required to implement the drainage improvements set forth in Section 4.2.4 above in connection with any such development. 9. COMPLIANCE WITH OTHER CODES Enchanted Park acknowledges that nothing in this 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. TAX MATTERS If Federal Way imposes any fee, tax, or other monetary charge based upon the use of the Enchanted Park Property, including without limitation, ticket taxes, admissions taxes or fees, or concessions taxes (an "Admission Tax") during the term of this Agreement, in consideration of the substantial cost to Enchanted Park of the improvements required under this Agreement, and to the extent authorized by law, Federal Way agrees that any Admission Tax will not be imposed upon any activities on the Property for a period of twelve (12) months following notice to Enchanted Park of the proposed tax. This Section shall not limit the City from imposing its local option business and occupation tax in accordance with state law. 11. OBLIGATION TO ANNEX The parties may elect to withdraw from this Agreement as follows: 11.1. Failure of Condition For purposes of this Agreement, the condition (as set forth in Sections 2 and 3 above) requiring adoption by the Federal Way City Council of certain ordinances shall not be deemed to be satisfied until such ordinances shall be adopted in proper form and substance and until all appeal periods with respect to such ordinances (or any review conducted in connection with such ordinances) shall have passed without any appeals having been filed. Concomitant Development Agreement page 14 of 19 /128060 15361-2 LNGI5!.DOC 1/30/98 11.2. Withdrawal Although Federal Way agrees to hold an annexation hearing as provided in Section 2, nothing in this Agreement obligates Federal Way to adopt a final annexation ordinance annexing any portion of the annexation area nor to adopt this Agreement, but if Federal Way does not do so prior to July 1, 1998, then Enchanted Park may withdraw from this Agreement as provided in this Agreement. Upon Federal Way's adoption of the Annexation Ordinance and approval of this Agreement by both parties, this Agreement shall be binding upon Federal Way and Enchanted Park. Nothing in this Agreement shall prevent the annexation of the Enchanted Park Property by Federal Way, upon proper fulfillment by Federal Way of all petition and election procedures in accordance with State law. 12. GENERAL PROVISIONS 12.1. Governing Law This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington. 12.2. Binding on Successors; Assignment This 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 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 Agreement. This 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 Agreement, Enchanted Park shall have no further liability or obligations under this Agreement. 12.3. Recording This Agreement or memorandum hereof shall be recorded against the Enchanted Park Property as a covenant nmning with the land and shall be binding upon Enchanted Park, its successors and assigns. If this Agreement is terminated, Federal Way will execute appropriate documents to so indicate. 12.4. No Severability The provisions of this Agreement are not severable. In the event any provisions of this Agreement are determined to be unenforceable or invalid by a court of law, then this 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 Concomitant Development Agreement page 15 of 19 #28060 15361-2 LNG15!.DOC 1/30/98 of invalidity occurring after the effective date of annexation shall affect the validity of the annexation. 12.5. 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 Agreement. Enchanted Park represents and warrants that it is the fee owner, contract purchaser, or lessee of the Enchanted Park Property. 12.6. Term of Agreement This Agreement shall remain in full force and effect for twenty (20) years from the effective date of this Agreement unless terminated prior to that date by the mutual agreement of the parties or by the City pursuant to Section 14 of the Concomitant Development Agreement. 12.7. Amendment This 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 Agreement and Exhibits, the Process VI procedures of the FWCC shall be utilized. At the request of Enchanted Park, the Director of Community Development Services may authorize minor modifications to the land use provisions set forth in this Agreement if the Director of Community Development Services determines that a proposed modification to this 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 Agreement; provided, however, notwithstanding the provisions of this 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. 12.8. Exhibits Exhibits A through L attached hereto are incorporated herein by this reference as if fully set forth. 12.9. 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. Concomitant Development Agreement page 16 of 19 1128060 15361-2 LNGI5!.DOC 1/30/98 12.10. Integration This 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. 13. 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 the annexation of the Enchanted Park Property and this Agreement, except to the extent resulting from the sole negligence of the City or its officers, agents, or employees in performance of this Agreement. 14. COMPLIANCE In the event Enchanted Park shall fail to satisfy any of its obligations under this 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 Land Use Code. In addition, Enchanted Park's failure to satisfy any of its material obligations in this Agreement shall constitute a breach of contract and shall be grounds for termination of this Agreement by the City. 15. POLICE POWER Nothing in this 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, but this agreement is an exercise of Federal Way's authority granted under RCW 35A.14.330, and 1995 Washington State Laws, ch. 395, §§ 501-506 and other powers. 16. EFFECTIVE DATE This Agreement shall become effective upon the effective date of the City Ordinance approving this Agreement and approval of the Agreement by both parties. Dated as of the date first above written. Concomitant Development Agreement page 17 of 19 #28060 15361-2 LNGI5!.DOC 1/30/98 CITY OF FEDERAL WAY, a Wash~n~ _/~_ _ic~ ENCHANTED PARKS, INC.,/ a Washington comm'a~fion \// STATE OF WASHINGTON ) ss. COUNTY OF KING Out -a personally appeared before me~~'~-~,~/~q~q~;, to me known t° be the [~ig~.~~-~5 '~"the CITY OF FEDERAL, WA~fl t~ r~ipal corporation t~ executed the fore~'~M~-~'-~going instrument, and acknowledged such instrument to be the free and voluntary act and deed of such a municipal corporation, for the uses and purposes therein mentioned, and on oath stated that [he/she] was duly authorized to execute such instrument. GIVe.UNDER MY//HAND AND oFFIcIAL SEAL this ~- ~ °3~ ay of ~ //~~ j ,1998. , d me' ( NOTARY PUBLIC in and for the State of My Commission Expires Concomitant Development Agreement page 18 of 19 #28060 15361-2 LNGIS!.DOC 1/30/98 STATE OF WASHINGTON COUNTY OF KING SS. On this day personally appeared before me .--fo_ .-('~Z' ~-¢.~ c Y-.. , to me known to be the ~ ,~ ~e.A of ENCHANTED PARKS, INC., the corporation that executed the foregoing instrument, and acknowledged such instrument to be the free and voluntary act and deed of such corporation, for the uses and purposes therein mentioned, and on oath stated that [he/she] was duly authorized to execute such instrument. GIVEN UNDER MY HAND AND OFFICIAL SEAL this ~ day of ~ ~ ~~ ,1998. NOTARY ~BLIC i~d for the State of W~hington, residing at My Commission Expires Concomitant Development Agreement page 19 of 19 //28060 15361-2 LNGIS!.DOC 1/30/98