City Council Regular Meeting Agenda Puyallup City Council Chambers 333 S Meridian, Puyallup Tuesday, February 13, :30 PM

Transcription

1 City Council Regular Meeting Agenda Puyallup City Council Chambers 333 S Meridian, Puyallup Tuesday, February 13, :30 PM PLEDGE OF ALLEGIANCE ROLL CALL APPROVAL OF AGENDA 1. CONSIDERATION OF MINUTES 1.a Consideration of minutes of January 9, 2018 January 9, 2018 Minutes 2. PRESENTATIONS AND PROCLAMATIONS 2.a Jamie's Heart Foundation Donation Agreement - Automated External Defibrillator (AED) AED Donation Agreement Donation Letter - Jamie's Heart Foundation CITIZEN COMMENTS 3. CONSENT AGENDA 3.a Accept the Lateral Sewer Pipe Replacement Project at 302 4th Ave NW as Complete Northwest Cascade - Final Voucher 3.b Approve accounts payable, payroll and electronic fund transfers of $5,980,380.51; ratify and confirm payments as previously authorized by the finance director. Warrant Register 3.c Assignment of Easement Rights with Valley Water District Assignment of Easement Rights Valley Water Easement Location Valley Water Easement EXHIBIT A 4. PUBLIC HEARINGS 4.a Public hearing and adoption of an ordinance renewing a moratorium relative to homeless drop-in centers and emergency shelters. Ordinance - Moratorium Renewal Homeless Land Uses Findings of Fact - Moratorium Drop-in Centers (Renewal) 5. ORDINANCES 1

2 5.a First reading of an ordinance amending the City's Zoning Map relating to a parcel at 703 5th Street SW Hearing Examiner Decision Rezone 703 5th St SW Ordinance 5.b First Reading of an ordinance revising certain sections of Puyallup Municipal Code relating to Business License provisions Business License Ordinance Exhibit A Business License Ordinance Summary of Proposed Changes 5.c Second Reading of an ordinance granting a non-exclusive Franchise to Level 3 Communications, LLC Franchise Agreement 6. RESOLUTIONS 6.a Resolution confirming Board and Commission Appointments Boards & Comm Appointments Resolution 7. CONSIDERATIONS AND REQUESTS 7.a Transfer of Development Rights Presentation A) Staff Memo B) TDR Program Brochure for Cities-Pierce County C) TDR Case Study - PierceCounty - Tacoma D) LCLIP Overview 7.b Council Rule Update: Key to the City, Proclamations, etc. 8. OTHER BUSINESS CITY MANAGER'S REPORT COUNCIL REPORTS MAYOR'S REPORT EXECUTIVE SESSION ADJOURNMENT The City Council Chambers is wheelchair accessible. Those needing assistance with hearing devices should contact the City Clerk's Office ( ) the Friday preceding the meeting. 2

3 City Council Agenda Item Report Submitted by: Tulika Makharia Submitting Department: City Clerk's Office Meeting Date: 2/13/2018 Subject: Consideration of minutes of January 9, 2018 Presenter: Recommendation: Background: City Council meeting minutes are included for review and approval Council Direction: Fiscal Impacts: ATTACHMENTS January 9, 2018 Minutes 3

4 City of Puyallup Regular City Council Meeting January 9, 2018 (These minutes are not verbatim. The meeting was recorded, and copies of the recording are retained for a period of six years from the date of the meeting and are available upon request.) COUNCILMEMBERS PRESENT: Deputy Mayor Palmer, Councilmember Door, Councilmember Farris, Councilmember Jacobsen, Councilmember Kastama, Councilmember Johnson, and Councilmember Swanson SWEARING IN OF RECENTLY ELECTED COUNCILMEMBERS City Clerk Mary Winter administered the ceremonial oath of office to newly elected council members Jim Kastama and Cynthia Jacobsen, and re-elected council member Julie Door. Councilmember Kastama and Councilmember Door each shared personal comments with the audience. SELECTION OF MAYOR AND DEPUTY MAYOR City Manager Kevin Yamamoto outlined the guidelines and procedure for the selection of the Mayor and Deputy Mayor. Deputy Mayor Palmer and Councilmember Swanson shared their views and qualifications for the position of Mayor. The councilmembers were polled and each one expressed their choice for the position of mayor. Council Action: A motion was made by Councilmember Johnson, second by Councilmember Door, confirming the appointment of Deputy Mayor Palmer as Mayor for The motion passed 5-2 (Johnson, Swanson). Council Action: A motion was made by Councilmember Door, second by Councilmember Farris, confirming the appointment of Councilmember Swanson as Deputy Mayor for The motion passed 7-0. At 7:15 p.m. Mayor Palmer called for a short recess; the meeting reconvened at 7:21 p.m. APPROVAL OF THE AGENDA Council Action: A motion was made by Councilmember Johnson, second by Councilmember Door, to approve the agenda. The motion passed

5 Council Meeting Minutes January 9, 2018 CONSIDERATION OF MINUTES Council Action: A motion was made by Councilmember Door, second by Councilmember Johnson, to approve the minutes of November 28 and December 5, 2017 as submitted. The motion passed 7-0. PRESENTATIONS AND PROCLAMATIONS Foothills Trail Encampment Presentation by the Police Department Interim Police Chief Scott Engle made a brief presentation about the Foothills Trail property which has been used as a homeless encampment since He described the police department s history with the property, site visits, and outreach efforts. Chief Engle also spoke of the adjoining Cavelti Property, also known as the The Farm, criminal activities on the property, and law enforcement actions by the Pierce County Sherrif s Department as well as the Puyallup Police Department. Chief Engle responded to a variety of council questions related to the presentation and homelessness in the city. CITIZEN COMMENTS Mr. Arthur West shared his opinions about the Vermillion lawsuit. Mr. Lawrence Mackey spoke of his love for lacrosse and thanked the local community for supporting the sport. Mr. Kevin Bates briefed the council on the number of local families and people served by the Helping Hand House (HHH) in He announced HHH s partnership with Open Hearth Ministries and thanked the council for supporting their efforts to provide emergency shelter and housing solutions in Puyallup. Mr. Robin Ordonez commended the council for choosing John Palmer to the serve as the mayor for He urged the council to maintain government transparency by limiting their communication to city provided devices only. Mr. Dave Churchman commented on the departure of former Police Chief Jeter and asked the council to provide an explanation to the public. Mr. Russell Matthews and Ms. Andrea Spooner drew attention to burglaries and crime taking place on Ms. Spooner s farm. They believed that homeless individuals from the Foothills Trail encampment were responsible for these crimes and appealed to the council for help in this matter. Mr. John Knutsen congratulated the new councilmembers and Deputy Mayor Palmer on his selection as Mayor. He shared his opinion on the circumstances and people related to the Vermillion lawsuit. 5 2

6 Council Meeting Minutes January 9, 2018 Mr. Larry Couture complained about the city s use of a professional negotiator in its contract negotiations with employees of a local fleet service. He believed that the city was not negotiating in good faith with the company. CONSENT AGENDA Acceptance of the 2017 Emergency Management Performance Grant (2017/EMPG) Funds Accept the 31 st Avenue SW Traffic Calming Project as complete Authorize and award a contract for the 31 st Ave SE and 5 th St SE Signal Controls Project Accept the 2016 Streets Overlay Project as complete Approve accounts payable, payroll and electronic fund transfers of $5,684,476.89; ratify and confirm payments as previously authorized by the finance director Council Action: A motion was made by Councilmember Door, second by Councilmember Johnson, to approve the consent agenda. The motion passed 7-0. CONSIDERATIONS AND REQUESTS Consideration and adoption of the 2018 City Council Meeting Calendar Mr. Yamamoto requested council input on the draft council meeting calendar. Council Action: A motion was made by Deputy Mayor Swanson, second by Councilmember Door, to approve the 2018 City Council Meeting Calendar. The motion passed 7-0. Council members discussed their availability for the council retreat, brainstormed agenda priorities, and decided to hold the retreat on Tuesday, February 6 th at 4 p.m. City Council Committee Assignments Mr. Yamamoto explained that according to council rules the mayor should propose committee assignments, followed by a confirming vote by the council. Mayor Palmer suggested that current committee representatives maintain their positions temporarily and communicate their preferences to him over the next week. Council Action: A motion was made by Mayor Palmer, second by Deputy Mayor Swanson, approving a resolution appointing Councilmember Robin Farris as the city representative to the Pierce Transit Board. The motion passed

7 Council Meeting Minutes January 9, 2018 Update on the City of Puyallup All Hazards Mitigation Plan Edition Emergency Management Manager Kirstin Hofmann introduced members of the city s Hazards Mitigation Team and provided an overview of the edition of the All Hazards Mitigation Plan. COUNCIL REPORTS Councilmember Farris shared a recent experience of a constituent with a group of homeless individuals and the help that she received from the police department. She thanked Puyallup police and the city s code enforcement officer on behalf of her constituent and appreciated their service to the city. She also encouraged the council to hold themselves to a high standard of ethics as leaders of the community. Councilmember Door welcomed the new council members and reported on her attendance at a recent South Sound 911 meeting. She paid her respects to the recently deceased Pierce County sheriff s deputy Daniel McCartney and expressed her gratitude to all law enforcement officers and their families. Councilmember Johnson congratulated Deputy Mayor Swanson and Mayor Palmer on their new positions and welcomed Councilmember Jacobsen and Councilmember Kastama to the Puyallup City Council. Councilmember Jacobsen echoed Councilmember Door s comments about Deputy McCartney and local law enforcement officers. She expressed her intention to be accessible to all her constituents and serve the city to the best of her ability. Deputy Mayor Swanson welcomed the new council members, encouraged citizens to attend the annual MLK, Jr. Celebration in Tacoma, memorialized late Sumner Mayor Dave Enslow, welcomed new Sumner Mayor Bill Pugh, and shared information on a variety of ways people can donate to Deputy McCartney s family and other law enforcement officers. Councilmember Kastama thanked all council members and staff for welcoming him to the council and for assisting him with the transition. MAYOR S REPORT Mayor Palmer congratulated and welcomed all incoming and current council members to a new council year. He expressed his sympathies for the McCartney family and noted Puyallup Police s well-coordinated response to regional emergencies. ADJOURNMENT 9:08 p.m. 7 4

8 City Council Agenda Item Report Submitted by: Kari Lucey Submitting Department: Police Department Meeting Date: 2/13/2018 Subject: Jamie's Heart Foundation Donation Agreement - Automated External Defibrillator (AED) Presenter: Scott Engle, Interim Chief of Police; Tim Hannah, CEO Jamie's Heart Foundation; Mark Ketter, Puyallup PD School Resource Officer Recommendation: Authorize and accept the donation of an Automated External Defibrillator (AED) to be assigned to the Puyallup Police Department's School Resource Officer from Jamie's Heart Foundation. Background: Jamie's Heart Foundation is offering to donate an AED to the Puyallup Police Department to better respond to emergency cardiac events. Statistics show that some children have undiagnosed congenital heart defects and have the potential to go into cardiac arrest quickly and without warning. Because of this, the AED would be issued to the Puyallup Police Department's School Resource Officer to fill a need which can potentially save a child's life while at school. Council Direction: Fiscal Impacts: One-time purchase of a protective case to store the AED device $ The battery life of an AED is approximately 5 years, the cost of a battery replacement is approximately $ every 5 years. ATTACHMENTS AED Donation Agreement Donation Letter - Jamie's Heart Foundation 8

9 9

10 10

11 11

12 12

13 City Council Agenda Item Report Submitted by: Patrick Sheehy Submitting Department: Capital Improvement Engineering Meeting Date: 2/13/2018 Subject: Accept the Lateral Sewer Pipe Replacement Project at 302 4th Ave NW as Complete Presenter: Hans Hunger Recommendation: Approve and accept the work completed by Northwest Cascade for the Lateral Sewer Pipe Replacement located at 302 4th Ave NW and begin the one-year warranty period. Background: The sewer service lateral at 302 4th Ave NW was the source of multiple maintenance complaints by the residents of the property. Investigation showed that the lateral pipe had separated at several joints and was approximately 90% restricted as a result. The City contracted BHC to design the replacement and Northwest Cascade was selected to perform the work under their on-call contract. Since the trenching and excavation impacted the driveway approach, it was upgraded to be ADA compliant. Council Direction: Fiscal Impacts: The original bid for the construction of the project was $37, and the final cost was $37, This project was funded out of the Collections System Improvement Fund. ATTACHMENTS Northwest Cascade - Final Voucher 13

14 14

15 City Council Agenda Item Report Submitted by: Cindy Huff Submitting Department: City Clerk's Office Meeting Date: 2/13/2018 Subject: Approve accounts payable, payroll and electronic fund transfers of $5,980,380.51; ratify and confirm payments as previously authorized by the finance director. Presenter: Cliff Craig Recommendation: Background: Council Direction: Fiscal Impacts: ATTACHMENTS Warrant Register 15

16 16

17 17

18 18

19 19

20 City Council Agenda Item Report Submitted by: Rob Andreotti Submitting Department: Public Works Meeting Date: 2/13/2018 Subject: Assignment of Easement Rights with Valley Water District Presenter: Public Works Director Rob Andreotti Recommendation: Authorize the City Manager to sign the Assignment of Easement Rights with Valley Water District in a form as approved by the City Attorney. Background: Valley Water District provides water to the Highlands neighborhood off of Shaw Road. They have requested to be allowed to place a water main in a City utility easement. The water main would improve the service to residents in the neighborhood that is currently served by their system. The City currently has a stormwater main in the easement and has worked with Valley Water District's engineers to insure the water main will not conflict with the stormwater main. Council Direction: Authorize the City Manager to sign the Assignment of Easement Rights. Fiscal Impacts: None ATTACHMENTS Assignment of Easement Rights Valley Water Easement Location Valley Water Easement EXHIBIT A 20

21 AFTER RECORDING RETURN TO: Grantor (Assignor): Grantee (Assignee): Legal Description (abbreviated): City of Puyallup Valley Water District SW ¼ of NW ¼, Sec. 36, T20N, R4E, WM Assessor's Tax Parcel ID#: FULL LEGAL DESCRIPTION ON PAGE _5_, BELOW Reference Nos. of Documents Released or Assigned: Pierce County Auditor s Recording No ASSIGNMENT OF EASEMENT RIGHTS THIS ASSIGNMENT OF EASEMENT RIGHTS ( Assignment ), dated this day of, 2018 (the Effective Date ), is by the CITY OF PUYALLUP, a Washington municipal corporation ( Assignor ) to VALLEY WATER DISTRICT, a Washington municipal corporation ( Assignee ). R E C I T A L S A. Assignor owns and operates a system of water lines, pumps, structures and related improvements and facilities for the provision of water service to persons and property located within the Assignor s water service area. Assignor, its successors and assigns received an Easement for Utilities, dated May 25, 2007, for the construction, improvement, maintenance, and repair of underground utilities, including but not limited to underground water pipes, storm drainage pipes, sanitary sewer pipes, and other appurtenant structures, over, under and across the

22 real property described in the Easement for Utilities (the Easement Area ). The Easement for Utilities is attached hereto as Exhibit A and incorporated herein by this reference. B. Assignee is a water district formed and operating under Title 57 RCW. Assignee provides water service to persons and property located within its water service area in Pierce County, Washington. The Easement Area is located within Assignee s water service area, and would facilitate the provision of water service to customers located within Assignee s water service area. The Easement Area is not located within Assignor s water service area, and is not necessary for the provision of water service to any customers within Assignor s water service area. C. Assignor and Assignee have determined that it is in the best interests of the public for the Assignor to assign and transfer to Assignee, non-exclusive interest, rights and obligations in and under the Easement for Utilities, for the purposes of water utility facilities. NOW, THEREFORE, the parties hereto agree as follows: 1. Assignment and Assumption of Easement Rights. Assignor hereby assigns, quitclaims, transfers and conveys to Assignee Assignor s non-exclusive right, title and interest in, to and under the Easement for Utilities, for the purpose of water utility lines, pipes, appurtenances and other facilities. The Assignee hereby assumes all of Assignor s obligations and duties under the Easement for Utilities, to the extent that the obligations and duties relate to water utility lines, pipes, appurtenances and other facilities owned and installed by Assignee. 2. Priority of Assignor Facilities. Assignor has other utilities, including stormwater lines, located in the above described easement. In the event of an emergency repair to the Assignor s utility the Assignee shall respond within 2 hours and take responsibility for removal and replacement of its facilities. In the event the Assignor determines that there is a conflict or need for relocation or removal of Assignee s facilities, Assignee hereby agrees to promptly remove and/or relocate Assignee s facilities as directed by Assignor. Such removal and/or relocation shall occur as promptly as possible but in no event shall such work be commenced any later than one week following notice from Assignor. In the event that Assignee is unable or unwilling to promptly remove and/or relocate Assignee s facilities, Assignor may remove and/or relocate the facilities and charge the cost thereof to Assignee. Any demand to remove and/or relocate Assignee s facilities shall not be unreasonably issued. 3. Hold Harmless and Indemnification. As a condition of Assignor entering into this Assignment of Easement Rights, Assignee agrees to defend, indemnify and hold harmless the Assignor, and all of its officials, employees, agents, contractors and consultants, from any and all claims, demands, suits, actions, damages, penalties, and liability of any kind, including injuries to persons or damages to property ( Claims ), which result from or arise out of the Assignee s construction, maintenance or repair of the Assignee s water facilities in the easement area pursuant to the Easement for Utilities (the Easement Area ), including but not limited to Claims for damage to the Assignee s property caused by or resulting from the Assignor s work on the Assignor s storm water facilities located in the Easement Area

23 4. Recording/Successors in Interest. This Assignment shall be recorded in the Pierce County Auditor s Office. This Assignment shall be binding upon, inure to the benefit of, and be enforceable by and against the respective successors and assigns of the parties. IN WITNESS WHEREOF, the parties have executed this Assignment of Easement Rights as of the Effective Date. ASSIGNOR: CITY OF PUYALLUP ASSIGNEE: VALLEY WATER DISTRICT By: Print Name: Its: By: Print Name: Its:

24 STATE OF WASHINGTON ) )ss. COUNTY OF PIERCE ) I CERTIFY that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that signed this instrument, on oath stated that was authorized to execute this instrument and acknowledged it as the City Manager of the CITY OF PUYALLUP, a Washington municipal corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: (Print name) NOTARY PUBLIC in and for the State of Washington, residing at My appointment expires: STATE OF WASHINGTON ) )ss. COUNTY OF PIERCE ) I CERTIFY that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that signed this instrument, on oath stated that was authorized to execute this instrument and acknowledged it as the of VALLEY WATER DISTRICT, a Washington municipal corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: (Print name) NOTARY PUBLIC in and for the State of Washington, residing at My appointment expires:

25 EXHIBIT A SUBJECT PROPERTY LEGAL DESCRIPTION Commencing at the Northwest corner of the Southwest quarter of the Northwest quarter of Section 36, Township 20 North, Range 4 East of the Willamette Meridian; Thence North 89 degrees 43 minutes 35 seconds East along the North line of said Southwest quarter of the Northwest quarter, feet to the Point of Beginning; Thence continuing along said North line feet; Thence along a curve to the left, whose radius point bears North 83 degrees 36 minutes 47 seconds East and a distance of feet and through a central angle of 34 degrees 04 minutes 17 seconds for an arc distance of feet; Thence along a curve to the right, whose radius point bears South 49 degrees 32 minutes 31 seconds West and a distance of feet and through a central angle of 55 degrees 37 minutes 27 seconds for an arc distance of feet; Thence South 89 degrees 43 minutes 35 seconds West feet; Thence North 20 degrees 20 minutes 29 seconds West feet to the Point of Beginning, in Pierce County, Washington. Source: City of Puyallup Utilities Easement Per AFN

26

27 27

28 An Engineering Services Company Kirkland Way, Suite 300 Kirkland, WA p f Civil Structural Planning Survey www. paceengrs.com 28

29 City Council Agenda Item Report Submitted by: Joe Beck Submitting Department: Legal Meeting Date: 2/13/2018 Subject: Public hearing and adoption of an ordinance renewing a moratorium relative to homeless drop-in centers and emergency shelters. Presenter: Joseph Beck, City Attorney & Tom Utterback, Development Services Director Recommendation: Conduct a public hearing and then suspend the rules and conduct first and final reading of an ordinance and accompanying findings of fact renewing a moratorium that temporarily prohibits the operation of drop-in centers and emergency shelters that provide social services to persons experiencing homelessness. Background: NOTE: Renewal of the moratorium will maintain the current status quo and allow the City Council and City staff to continue its work on this topic. On August 22, 2017, the City Council adopted Ordinance 3147 which renewed Ordinance 3109 for an additional six months. Ordinance 3109 temporarily prohibits the operation of emergency shelters and drop-in centers that provide social services to persons experiencing homelessness. State law allows moratoriums to be renewed in increments up to six (6) months, so long as a public hearing is held upon renewing the moratorium and findings of fact are adopted. Since adopting the initial moratorium, City Council has reviewed and deliberated on policy considerations pertaining to homelessness. For instance, on April 5, 2016, the City Council adopted an ordinance that designated businesses that provide social services or housing to persons experiencing homelessness as a significant impact business subject to the requirements of Chapter 5.90 (Significant Impact Business) of the Puyallup Municipal Code. More specifically, relative to zoning, City staff has presented this matter to the City's Planning Commission for consideration. The Planning Commission has reviewed this matter during commission meetings on the following dates: 11/9/16, 12/14/16, 1/11/17, 6/14/17, and 6/21/17. In addition, at the June 14, 2017 hearing the Planning Commission held a public hearing on this matter. The commission deliberations and public hearing culminated in the Planning Commission approving recommendations at the June 21, 2017 meeting. These recommendations were subsequently presented to the City Council on July 18, 2017 and August 29, 2017 to begin the process of City Council review of potential zoning regulations relative to drop-in centers. Based upon that City Council input, City staff presented further staff analysis and potential zoning map standards to City Council on January 23, Substantive City Council discussion and 29

30 deliberation occurred at that time, including requests for additional research on appropriate standards and review procedures. Council Direction: Based on the depth and scope of this review, City staff is recommending that City Council renew the moratorium for an additional six month increment. Fiscal Impacts: N/A ATTACHMENTS Ordinance - Moratorium Renewal Homeless Land Uses Findings of Fact - Moratorium Drop-in Centers (Renewal) 30

31 ORDINANCE NO. AN ORDINANCE of the City Council of the City of Puyallup, Washington, renewing a moratorium with respect to the acceptance or processing of any and all land use or building applications or plans, or issuance of permits, and approvals, and uses or activities associated with emergency shelters, drop-in centers, and similar uses that provide social services to persons that are homeless in all zones located in the City of Puyallup. WHEREAS, the City does not have any land use regulations pertaining to emergency shelters, drop-in centers, and similar uses that provides social services to homeless persons; WHEREAS, the Puyallup City Council and City staff have spent a considerable amount of time hearing public comment and deliberating on homelessness related issues; WHEREAS, during the public comment portion of the City Council meetings numerous Puyallup residents spoke about the negative impacts such as sanitation, security, theft, littering, illegal drug use, indecent exposure, and other similar impacts that are occurring in and around the businesses and residential neighborhoods near an existing drop-in center that provides social services to homeless persons; WHEREAS, homelessness is a regional and national issue that extends beyond the corporate boundaries of Puyallup; WHEREAS, the City is continuing its efforts to work with and coordinate resources with Pierce County and regional social service agencies to address homelessness; WHEREAS, City staff has presented this matter to the City's Planning Commission for consideration and Planning Commissioners have conducted extensive deliberations on this matter; WHEREAS, on April 5, 2016, the City Council adopted Ordinance 3110 that designated businesses that provide social services or housing to persons experiencing homelessness as a significant impact business subject to the requirements of Chapter 5.90 (Significant Impact Business) of the Puyallup Municipal Code; WHEREAS, in a letter dated December 6, 2016, the U.S. Department of Justice (DOJ) informed the City that the Department of Justice has initiated an investigation of the City of Puyallup s ( City ) zoning and land use practices pursuant to the Religious Land Use and Institutionalized Persons Act of 2000 ( RLUIPA ), 42 U.S.C. 2000cc, et seq ; 1 31

32 WHEREAS, the City is cooperating fully with the DOJ in its investigation and maintains that no violations of RLUIPA have occurred; WHEREAS, the City s Planning Commission has reviewed this matter during commission meetings on the following dates: 11/9/16, 12/14/16, 1/11/17, 6/14/17, and 6/21/17; WHEREAS, the Planning Commission held a public hearing on this matter at its June 14, 2017 meeting and subsequently approved recommendations to the City Council at the Commission s June 21, 2017 meeting; WHEREAS, these recommendations were initially presented to the City Council on July 18, 2017 and August 29, 2017 to begin the process of City Council review of potential zoning regulations relative to drop-in centers; WHEREAS, City Council direction was received relative to proposed zoning text and map standards; WHEREAS, further City staff analysis and potential zoning map standards were presented to City Council on January 23, Substantive City Council discussion and deliberation occurred at that time, including requests for additional research on appropriate standards and review procedures; WHEREAS, the City needs time to continue to review, research, and analyze its land use regulations and determine the nature and scope of potential regulatory amendments relative to emergency shelters, drop-in centers, and similar uses that provide social services to homeless persons, and to fully consider any concerns raised by the DOJ investigation; WHEREAS, this ordinance is needed to preserve the health, safety, and welfare of the residents of Puyallup; and NOW THEREFORE, the City Council of the City of Puyallup ordains as follows: Section 1. Renewal of Moratorium. The moratorium adopted in Ordinance 3109 (2016) is hereby renewed. Section 2. Duration. The moratorium renewed by this ordinance shall be in effect for one-hundred eighty days (180) days after adoption of this ordinance, unless repealed, extended or modified by the City Council. Section 3. Adoption of Findings of Fact. The City Council adopts the findings of fact contained in Exhibit A, which is attached hereto and incorporated herein, to support the moratorium and its renewal. 2 32

33 Section 4. Public emergency. The City Council hereby finds and declares that a public emergency exists, and that this ordinance is necessary for the protection of the health, safety, and welfare of residents within the City and, thus, should take effect immediately upon adoption. Section 5. Severability Construction. If a section, subsection, paragraph, sentence, clause, or phrase of this ordinance is declared unconstitutional or invalid for any reason by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance unless the invalidity destroys the purpose and intent of this ordinance. If the provisions of this ordinance are found to be inconsistent with other provisions of the Puyallup Municipal Code, this ordinance is deemed to control. Section 6. Effective Date. In accordance with RCW 35A , this ordinance, as a public emergency ordinance, shall take effect and be in force immediately upon adoption. Passed and approved by the City Council of the City of Puyallup at a regularly scheduled open public meeting on the 13th day of February, John Palmer Mayor Approved as to form: Attest: Joseph N. Beck City Attorney Mary Winter City Clerk Published: Effective: 3 33

34 EXHIBIT A FINDINGS OF FACT RENEWAL OF MORATORIUM IN ORDINANCE 3109 (2016) The Puyallup City Council does hereby adopt the following findings of fact in support of the renewal of the moratorium that was adopted on March 22, 2016 in Ordinance 3109 and renewed on February 13, 2018 by Ordinance, which temporarily prohibits any further emergency shelters, drop-in centers, and similar uses that provide social services to persons experiencing homelessness from operating within the City of Puyallup: 1. The City does not have any land use regulations pertaining to emergency shelters, drop-in centers, and similar uses that provide social services to persons experiencing homelessness. 2. The Puyallup City Council conducted study sessions on March 8, 2016 and May 17, 2016, and regular meetings on March 22, 2016 and April 5, 2016, during which City Council spent a considerable amount of time hearing public comment and deliberating on homelessness within the City. Specifically, the City Council held a public hearing on Ordinance 3109 on May 17, The moratorium imposed under Ordinance 3109 was initially renewed by Ordinance 3121 on September 13, 2016, with subsequent extensions under Ordinance 3135 on March 7, 2017 and Ordinance 3147 on August 22, During the public comment and public hearing portions of the foregoing City Council meetings, numerous Puyallup residents spoke about the negative impacts such as sanitation, security, theft, littering, illegal drug use, indecent exposure, and other similar impacts that are occurring in and around the businesses and residential neighborhoods near an existing drop-in center that provides social services to homeless persons. 4. Homelessness is a regional and national issue that extends beyond the corporate boundaries of Puyallup. 5. The City is continuing its efforts to work with and coordinate resources with Pierce County and regional social service agencies to address homelessness. Specifically, at the City Council Study Session on May 17, 2016, a panel of professionals from regional social service providers addressed the City Council regarding potential concepts for a regulatory framework pertaining to homelessness. City Council has further addressed this topic at several subsequent meetings. 6. The City does allocate a portion of the annual city budget to provide funding to local social service agencies through the Community Grants program with a focus on families. 7. On April 5, 2016, Puyallup City Council adopted Ordinance 3110 designating businesses that provide social services or housing to persons experiencing homelessness as a significant Page 1 of 2 34

35 impact business subject to the requirements of Chapter 5.90 PMC. 8. City staff has presented this matter to the City's Planning Commission for review and consideration on November 9, 2016, December 14, 2016, January 11, 2017, June 14, 2017, and June 21, The Planning Commission held a public hearing at the June 14 th meeting and subsequently approved recommendations to the City Council at the Commission s June 21 st meeting. 9. The Planning Commission recommendations were presented to the City Council on July 18, 2017 and August 29, 2017 to begin the process of City Council review of potential zoning regulations relative to drop-in centers. Based upon that City Council input, City staff presented further staff analysis and potential zoning map standards to City Council on January 23, Substantive City Council discussion and deliberation occurred at that time, including requests for additional research on appropriate standards and review procedures. 10. Moreover, in a letter dated December 6, 2016, the U.S. Department of Justice (DOJ) informed the City that the [DOJ] has initiated an investigation of the City of Puyallup s ( City ) zoning and land use practices pursuant to the Religious Land Use and Institutionalized Persons Act of 2000 ( RLUIPA ), 42 U.S.C. 2000cc, et seq. The City is cooperating with the DOJ in its investigation and maintains that no violations of RLUIPA have occurred. 11. The City needs time to continue to review, research, and analyze its land use regulations and determine the nature and scope of potential regulatory amendments relative to emergency shelters, drop-in centers, and similar uses that provide social services to homeless persons, and to fully consider any concerns issues raised during the DOJ investigation. Approved by the City Council of the City of Puyallup at a regularly scheduled open public meeting on the 13th day of February, John Palmer Mayor Approved as to form: Attest: Joseph N. Beck City Attorney Mary Winter City Clerk Page 2 of 2 35

36 City Council Agenda Item Report Submitted by: Chris Beale Submitting Department: Development Services Meeting Date: 2/13/2018 Subject: First reading of an ordinance amending the City's Zoning Map relating to a parcel at 703 5th Street SW Presenter: Development Services Recommendation: Review and approve first reading of an ordinance amending the City's official Zoning Map for a parcel at 703 5th Street SW from RM-20 to RM-Core. Background: This ordinance pertains to a rezone request for a 0.16 acre parcel at the SE corner of 5th Street SW-7th Avenue SW. The property owner has requested to rezone the parcel from one multifamily residential zone district (RM-20) to another multi-family residential zone (RM-Core). The city Hearing Examiner, under Puyallup Municipal Code (PMC) and PMC (5), is delegated the authority to review and approve site-specific rezone requests such as this which do not require companion map amendments to the Comprehensive Plan Land Use designation. The subject parcel is designated in the Comprehensive Plan as High Density Residential (HDR); under that Land Use designation, both implementing zoning districts exist: RM-20 and RM-Core. The proposal, which was approved by the Hearing Examiner in November, 2017, after conducting a duly-noticed public hearing, would rezone the parcel from RM-20 to RM-Core. Per code, the City Council is to adopt an ordinance implementing the Hearing Examiner's decision to amend the official City zoning map. Council Direction: Fiscal Impacts: ATTACHMENTS Hearing Examiner Decision Rezone 703 5th St SW Ordinance 36

37 BEFORE THE HEARING EXAMINER FOR THE CITY OF PUYALLUP In the Matter of the Application of ) No. P ) Geoff Sherwin, on behalf of ) Apex Rezone Apex Engineering ) ) ) FINDINGS, CONCLUSIONS, For a Site-Specific Rezone ) AND DECISION SUMMARY The request to rezone the property at 703 5th Street SW from the high density multiple-family residential zone designation (RM-20) to the regional growth center-oriented high density multiple-family residential zone designation (RM-Core) is APPROVED by the Hearing Examiner for final action by the City Council. SUMMARY OF RECORD Hearing Date: The Hearing Examiner held an open record hearing on the request on November 13, The record was left open until November 14, 2017, to allow the City to provide additional information on the notice provided for the proposal, the classification of area streets, and the Hearing Examiner s authority to decide the proposal. Testimony: The following individuals presented testimony under oath at the open record hearing: Chris Beale, City Senior Planner Colleen Harris, Applicant Representative Exhibits: The following exhibits were admitted into the record: 1. Staff Report, dated November 7, Rezone Application, received August 31, 2017, with Aerial Map; RM-20 Zoning Site Plan, dated August 29, 2017; and RM-Core Zoning Site Plan, dated August 29, Certification of Notice, dated October 30, Memorandum from Chris Beale, dated November 14, 2017 Findings, Conclusions, and Decision City of Puyallup Hearing Examiner Apex Engineering Rezone, No. P Page 1 of 7 37

38 FINDINGS Application and Notice 1. Geoff Sherwin, on behalf of Apex Engineering (Applicant), requests a site-specific rezone of undeveloped property at 703 5th Street SW from the high density multiplefamily residential zone designation (RM-20) to the regional growth center-oriented high density multiple-family residential zone designation (RM-Core). 1 Exhibit 1, Staff Report, pages 1 and 2; Exhibit The City of Puyallup (City) determined that the rezone application was complete on September 25, 2017, at which time the City sent notice of the application to public agencies and parties of record. The next day, the City mailed notice of the application to property owners within 500 feet of the site. On September 27, 2017, the City published notice in the Kent Reporter. The Applicant posted notice of the application on-site on October 4, On October 31, 2017, the City mailed or ed notice of the open record hearing associated with the rezone request to public agencies and all owners of property within 500 feet of the subject property, and published notice of the hearing in the Kent Reporter. The Applicant posted notice of the open record hearing on-site on November 3, The City did not receive any written public comments in response to its notice materials. Exhibit 1, Staff Report, page 2; Exhibit 3; Exhibit 4. State Environmental Policy Act 3. City staff determined that the rezone was exempt from review under the State Environmental Protection Act (SEPA), Chapter 43.21C Revised Code of Washington (RCW). City Senior Planner Chris Beale testified that, under Washington Administrative Code (WAC) (6)(c), the rezone proposal is exempt from environmental review because the project site is in an urban growth area, the rezone does not require an amendment to the City s Comprehensive Plan, and the Comprehensive Plan was previously subject to environmental review. If the rezone request is approved, further environmental review would occur during the project application process. Exhibit 1, Staff Report, page 2; Testimony of Mr. Beale. Existing Site and Proposed Use 4. The 0.16-acre parcel is currently undeveloped and consists of a vacant, gravel lot used during the Western Washington Fair for commercial-use parking. The site is bounded on the north by 7 th Avenue SW, a major collector roadway, and on the west by 5 th Street SW, a minor arterial roadway. The Applicant seeks the proposed rezone to allow for future construction of a multi-family structure, satisfying density requirements and housing demands in the area. Mr. Beale testified that any future development would be reviewed at the time of permit application. Exhibit 1, Staff Report, page 2; Exhibit 2; Testimony of Mr. Beale. 1 The property subject to the rezone request is identified by Pierce County tax parcel number A legal description of the property is included with the application materials. Exhibit 2. Findings, Conclusions, and Decision City of Puyallup Hearing Examiner Apex Engineering Rezone, No. P Page 2 of 7 38

39 Comprehensive Plan and Zoning 5. The property is designated as High Density Residential (HDR) under the City s Comprehensive Plan. The intent of the HDR designation is to provide a higher-density residential zone that creates alternative housing types for different economic segments of the community. The HDR designation includes three implementing zones: RM-10, RM- 20, and RM-Core. The Applicant identified the following Comprehensive Plan goals and policies as relevant to the proposed rezone: Goal LU-2: provide a sufficient mix of land uses that promotes walking, biking, and transit use. Policy LU-2.2: encourage a range of housing types and densities. Goal LU-3: ensure that adequate land areas are provided to accommodate project growth and provide opportunities for economic development activities, while protecting open space and natural resources. Policy LU-3.1: designate sufficient land area at a variety of densities for residential uses. Goal LU-13: designate high-density residential areas in the city, allowing 15 to 22 dwelling units per acre. Policy LU-13.1: ensure that high-density residential development is available in areas near employment and/or commercial areas, where high levels of transit are present or likely. Goal LU-23: focus employment and residential growth within the city s two Regional Growth Centers (RGCs). Policy LU-23.1: maintain the Downtown RGC plan in a manner that accounts for pedestrian scale, historic character, and the commuter rail station. Goal DT-2: enhance the core downtown area as a pedestrian-oriented commercial land use district area. Policy DT-2.1: ensure that a complimentary mix of employment services, shopping, and residential opportunities are promoted in the downtown area. Policy DT-6: ensure that transitional residential neighborhoods immediately surrounding the pedestrian-oriented core area provide a balanced mixed-use character and enhance the viability and use of the commercial core. Policy DT-6.1: ensure that the RM-Core zone accommodates multi-family residential uses of a more urban scale than the garden apartments more traditionally sited in the RM-20 zone. Exhibit 1, Staff Report, page 3; Exhibit The property is currently zoned RM-20, with a proposed rezone to RM-Core. Both zones allow for a wider range of multi-family uses, including duplexes and other multi-family residential housing types. Both zones are intended to provide for substantially higherdensity, multi-family residential land uses, with RM-Core (the denser of the two) intended to promote more compact forms of residential land uses. Property to the east is zoned RM-20 and developed with a vacant, single-family home. Property to the south is Findings, Conclusions, and Decision City of Puyallup Hearing Examiner Apex Engineering Rezone, No. P Page 3 of 7 39

40 also zoned RM-20. To the west, the property is zoned RS-08 and contains a commercial parking lot, and, to the north, the property is zoned RS-06 and contains a restaurant. A public stadium is located to the northwest of the site, which is designated and zoned Public Facilities. Puyallup Municipal Code (PMC) Exhibit 1, Staff Report, page 3. Rezone Request 7. The Applicant is requesting to rezone the property because, under the current zoning designation, building setbacks would prohibit construction of anything other than a single-family dwelling unit. The Applicant would prefer to use the site for future construction of multi-family residential development. The Applicant provided a project narrative with its application materials that asserts the proposal would meet the criteria for a site-specific rezone under PMC because: The Comprehensive Plan supports development at greater densities in this area of the city. Specifically, the property is within the city s Downtown Regional Growth Center, and several Comprehensive Plan goals and policies (identified in Finding 5) support a more compact form of residential land use in this area consistent with PMC Two events have occurred that warrant an amendment to the zoning map: (1) the Western Washington Fair entered into a parking agreement with Sound Transit that allows the Red Lot (just west of the subject parcel) to be used for commuter parking year-round, and (2) a nearby convenience store was removed and replaced with a popular restaurant. Exhibit 2. The proposed rezone would not impact public health, safety, or welfare. The subject property has access to public transit and utilities, is consistent with existing and planned uses in the area, and is not known to have any significant environmental constraints. 8. City staff reviewed the proposal and project narrative and concurs with the Applicant s assessment. Staff also noted additional changes in the area that would warrant the rezone request. Specifically, the intersection of 5th Street SW and 7th Avenue SW is now signalized, and local bus service has been increased on 5th Street, providing a north-south route for transit users to travel between the two transit centers in the city (South Hill and Downtown). Exhibit 1, Staff Report, pages 3 through 5. Testimony 9. Mr. Beale testified generally about the application and the history of the site. He stressed that the City encourages higher-density residential development within its Regional Growth Centers, as would be allowed under this proposal. Mr. Beale noted that the site has been vacant for some time and that the City would like to see the 5th Street corridor more fully develop. He also noted that any future development on the site would require further project review and be regulated by the City s municipal code. Mr. Beale stated Findings, Conclusions, and Decision City of Puyallup Hearing Examiner Apex Engineering Rezone, No. P Page 4 of 7 40

41 that staff recommends approval of the rezone, without conditions. Testimony of Mr. Beale. 10. Applicant Representative Colleen Harris testified that the Applicant concurs with the City s assessment of the proposal and believes the rezone should be approved. Testimony of Ms. Harris. CONCLUSIONS Jurisdiction The Hearing Examiner has jurisdiction to hold an open record hearing on quasi-judicial actions, including this rezone, and to issue a written decision for final action to the City Council, for final action. RCW 35A ; PMC ; PMC Under PMC , the City Council retains final authority over rezones through adoption of ordinances under PMC to amend the City s official zoning map. 2 Criteria for Review PMC sets forth the standards and criteria the Hearing Examiner must use to evaluate a request for a rezone. A request for a rezone shall only be granted when all of the following conditions exist: (1) That the proposed amendment to the zoning map is consistent with the goals, objectives and policies of the comprehensive plan; (2) That the proposed amendment to the zoning map is consistent with the scope and purpose of this title and the description and purpose of the zone classification applied for; (3) That there are changed conditions since the previous zoning became effective to warrant the proposed amendment to the zoning map; (4) That the proposed amendment to the zoning map will be in the interest of furtherance of the public health, safety, comfort, convenience and general welfare, and will not adversely affect the surrounding neighborhood, nor be injurious to other properties in the vicinity in which the subject property is located. The criteria for review adopted by the City Council are designed to implement the requirement of chapter 36.70B RCW to enact the Growth Management Act. In particular, RCW 36.70B.040 mandates that local jurisdictions review proposed development to ensure consistency with City development regulations, considering the type of land use, the level of development, infrastructure, and the characteristics of development. RCW 36.70B RCW 35A (2)(c) dictates that the legislative body of a municipality not the Hearing Examiner retains final decision-making authority over rezone requests. The City Attorney provided an interpretation of PMC , noting that the City Council only has the authority to approve the rezone after a decision is rendered by the Hearing Examiner and that, while the final approval of the change to the zoning map is subject to Council approval of an ordinance, Council has no discretion over the application. Exhibit 4. Findings, Conclusions, and Decision City of Puyallup Hearing Examiner Apex Engineering Rezone, No. P Page 5 of 7 41

42 Conclusions Based on Findings 1. The proposed amendment to the zoning map would be consistent with the goals, objectives and policies of the Comprehensive Plan. The proposed rezone from RM-20 to RM-Core would permit development consistent with the Comprehensive Plan. Specifically, the rezone would allow residential development at a greater density on the site, which is located within the city s Downtown Regional Growth Center, as envisioned by the Comprehensive Plan s goals and objectives. Further, the site area is near employment and commercial areas, with high levels of transit present, which is also encouraged by the Comprehensive Plan. 2. The proposed amendment to the zoning map would be consistent with the scope and purpose of the City s zoning code and the description and purpose of the zone classification applied for. Following the rezone, the subject parcel would be designated RM-Core. The purpose of the RM-Core zone is to allow for a wider range of multifamily uses at the densest, most compact form allowed in the city. The site has access to public transit, and borders two arterial streets. Further, it is within the Downtown Regional Growth Center, an area of the city designated for higher density residential growth. 3. There are changed conditions since the previous zoning became effective to warrant the proposed amendment to the zoning map. Since the project site was first designated RM-20, several changes in the area have led to intensification of development: a popular restaurant opened across the street, the Western Washington Fair and Sound Transit have agreed to allow the nearby Red Lot to be used for commuter parking year-round, a signal was installed at the intersection of 5th Street SW and 7th Avenue SW, and local bus service has increased along 5th Street. These changes have intensified land use in the immediate vicinity and warrant a zoning designation that would allow for greater residential density in the area. 4. The proposed amendment to the zoning map would be in the interest of furtherance of the public health, safety, comfort, convenience and general welfare; would not adversely affect the surrounding neighborhood; and would not be injurious to other properties in the vicinity in which the subject property is located. The City gave reasonable notice of the rezone application and the associated open record hearing. No public comments were received in response to the City s notice materials. The City determined that the proposed rezone was exempt from review under the State Environmental Policy Act because the project site is in an urban growth area, the rezone does not require an amendment to the City s Comprehensive Plan, and the Comprehensive Plan was previously subject to environmental review. The purpose of the City s Downtown Regional Growth Center is to achieve dense, urban development, and Findings, Conclusions, and Decision City of Puyallup Hearing Examiner Apex Engineering Rezone, No. P Page 6 of 7 42

43 the proposal would meet this goal. The proposed rezone to RM-Core would continue to make the parcel consistent with the Comprehensive Plan HDR designation for the area. HEARING EXAMINER DECISION Based upon the preceding findings and conclusions, the request to rezone the property at 703 5th Street SW from the high density multiple-family residential zone designation (RM-20) to the regional growth center-oriented high density multiple-family residential zone designation (RM-Core) is APPROVED by the Hearing Examiner for final action by the City Council. Decided this 28 th day of November ANDREW M. REEVES Hearing Examiner Sound Law Center Findings, Conclusions, and Decision City of Puyallup Hearing Examiner Apex Engineering Rezone, No. P Page 7 of 7 43

44 ORDINANCE NO XXXX AN ORDINANCE OF THE CITY OF PUYALLUP WASHINGTON approving a rezone of tax parcel number (703 5 th Street SW) from the High density multiplefamily residential zone (RM-20) to the Regional growth centeroriented high density multiple-family residential zone (RM-Core) WHEREAS the owner of tax parcel number (703 5th Street SW) filed a rezone application with the Development Services Department on August 31, 2017; and, WHEREAS the existing zoning for the subject parcel ( (703 5th Street SW)) is High density multiple-family residential zone (RM-20) and the application received requests a change to the Regional growth center-oriented high density multiple-family residential zone (RM-Core); and, WHEREAS the existing Land Use designation for the subject property in the city s adopted Comprehensive Plan is High Density Residential (HDR); and, WHEREAS the HDR Land Use designation has only two implementing zone districts - High density multiple-family residential zone (RM-20) and Regional growth center-oriented high density multiple-family residential zone (RM-Core); and, WHEREAS the Development Services Department followed adopted procedures regarding public notification to surrounding property owners in relation to the Notice of Complete Application, after determining the application complete on September 25, 2017, to solicit public comments; and, WHEREAS Puyallup Municipal Code (PMC) and PMC (5) sets forth that the city Hearing Examiner shall have review and approval authority over rezone applications that do not require amendment to the Comprehensive Plan; and, WHEREAS the City of Puyallup Hearing Examiner held a duly noticed, open record public hearing on November 13, 2017 regarding the application for requested rezone action; and, WHEREAS at the November 13, 2017 public hearing before the Hearing Examiner, no comments from the public at-large were received, either verbal or written, regarding the application; and, WHEREAS the city Hearing Examiner issued a decision to approve the subject rezone application on November 28, 2017 that is now final and was not appealed; and, Ordinance No. XXXX Approval of rezone Page 1 of 3 44

45 WHEREAS PMC requires the City Council to approve an ordinance to formally ratify the city Hearing Examiner s decision to amend the official zoning map. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PUYALLUP, WASHINGTON HEREBY ORDAINS AS FOLLOWS: Section 1 Approval of Rezone. The rezone requested in Case Number P that rezones tax parcel number (703 5th Street SW) from the High density multiple-family residential zone (RM-20) to the Regional growth center-oriented high density multiple-family residential zone (RM-Core) is hereby approved. The City s Official Zoning Map shall reflect such rezone. Section 2 Adoption of Findings and Conclusions. The City Council hereby adopts and incorporates herein in their entirety the Findings of Fact and Conclusions made by the City Hearing Examiner in Case Number P , decision dated November 28, The Hearing Examiner decision that accompanies this ordinance is incorporated herein as Exhibit A. Section 3 Severability - Construction. (1) If a section subsection paragraph sentence clause or phrase of this Ordinance is declared unconstitutional or invalid for any reason by any court of competent jurisdiction such decision shall not affect the validity of the remaining portions of this Ordinance (2) If the provisions of this ordinance are found to be inconsistent with the other provisions of the Puyallup Municipal Code this Ordinance is deemed to control Section 4 Effective Date. This Ordinance shall take effect and be in force thirty 30 days after final passage, as provided by law. Passed and approved by City Council of the City of Puyallup at regularly scheduled open public meeting on the XX day of February, 2018 John Palmer Mayor Ordinance No. XXXX Approval of rezone Page 2 of 3 45

46 Approved as to form: Attest: Joseph N. Beck City Attorney Mary Winter City Clerk Published: XXXXXXXXXXXX Effective: XXXXXXXXXXXXX Ordinance No. XXXX Approval of rezone Page 3 of 3 46

47 City Council Agenda Item Report Submitted by: Cliff Craig Submitting Department: Finance Meeting Date: 2/13/2018 Subject: First Reading of an ordinance revising certain sections of Puyallup Municipal Code relating to Business License provisions Presenter: Cliff Craig Recommendation: Council conduct reading of the ordinance and direct any changes to the proposed ordinance as deemed appropriate for the second reading. Background: As reported to Council by Jan 9, 2018, last year the State passed legislation to simplify business license administration. In essence all cities that require a general business license (license), unless otherwise exempted (partnering cities) are required to partner with the Department of Revenue to issue and renew licenses through the Business Licensing Service (BLS). The Department of Revenue has placed Puyallup at the top of the list for implementation. We are expected to transition to the BLS in the second quarter of this year, with a go live date probably in May. Ultimately all of our general business licenses will be administered for us by the State, and businesses will be able to license all their locations in the state conveniently from one web site. The system will accommodate our regular business licenses, home occupation licenses and non-profit registrations that are exempt from paying the license fee. This will not affect our specialty licenses such as temporary licenses and others listed specifically in our City Code. The city will retain control over conditions of license approval as before, and our fee structure. However, a few adjustments to the city code are necessary for alignment with BLS. A few others are proposed for consistency and simplification. When all is done, the change should be good for businesses by simplifying their licensing process, and good for the city. It should save the city time and money, and free up capacity for other work. The only proposed changes that have any real effect are in these sections , and In proposed change in for more efficient administration would automatically terminate a license that remains unrenewed after 120 days. 47

48 In the change aligns the city with BLS requirements. The state does not allow transfer of license to new owner or ownership structure. The proposed change in would eliminate late renewal penalties because BLS already imposes a penalty of up to $150. Otherwise it would fix a penalty of $250 for operating a business in Puyallup without a license. This replaces the unspecified amount that was previously located in See the attached summary of proposed changes. Council Direction: Staff recommends Council conduct first reading of the ordinance, consider the proposed changes and direct staff to make any changes that are deemed appropriate for second reading. Fiscal Impacts: The transition of licenses to BLS will save $35,000 to $40,000 per year by replacing the current contracted service provider. ATTACHMENTS Business License Ordinance Exhibit A Business License Ordinance Summary of Proposed Changes 48

49 ORDINANCE NO. AN ORDINANCE OF THE CITY OF PUYALLUP AMENDING TITLE 5 AND CHAPTER 9.01 OF THE PUYALLUP MUNICIPAL CODE THEREBY PROVIDING FOR ADMINISTRATION OF THE CITY S BUSINESS LICENSING PROGRAM BY THE WASHINGTON STATE DEPARTMENT OF REVENUE BUSINESS LICENSING SERVICE AND MAKING OTHER MINOR ADJUSTMENTS TO CODE TO ELIMINATE REDUNDANCIES, CLARIFY INTENT AND STREAMLINE ADMINISTRATION OF BUSINESS LICENSES. WHEREAS, in 2017 the State passed legislation to simplify business license administration and require that, in essence, all cities that require a general business license (license), unless otherwise exempted (partnering cities) are required to partner with the Department of Revenue to issue and renew licenses through the Business Licensing Service (BLS); and WHEREAS, The Department of Revenue has placed Puyallup at the top of the list for implementation and we are expected to transition to the BLS in the second quarter of this year, with an implementation date approximately in May 2018; and WHEREAS, all City of Puyallup general business licenses will be administered for the City by the State, and businesses will be able to license all their locations in the state conveniently from one web site; and WHEREAS, the system will accommodate City of Puyallup regular business licenses, home occupation licenses and non-profit registrations that are exempt from paying the license fee; and WHEREAS, this change will not affect City of Puyallup specialty licenses such as temporary licenses and others listed specifically in our City Code and the city will retain control over conditions of license approval as before, and our fee structure; and WHEREAS, a few adjustments to the city code are necessary for alignment with BLS and a few others are proposed for consistency and simplification; and WHEREAS, the City Council finds that the changes will ultimately benefit businesses by simplifying their licensing process and the changes will benefit the city because the new system should save the city time and money, and free up capacity for other work; Ordinance No. Business Licensing Program Page

50 NOW THEREFORE, the City Council of the City of Puyallup do ordain as follows: Section 1. Puyallup Municipal Code Title 5 Business Licenses and Regulations and Chapter 9.01 Alarm Systems are amended as set out in the attached Exhibit A and hereby made a part of this Ordinance as if set out herein in its entirety. Section 2. (A) If a section, subsection, paragraph, sentence, clause or phrase of this Ordinance is declared unconstitutional or invalid for any reason by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. (B) If the provisions of this ordinance are found to be inconsistent with the other provisions of the Puyallup Municipal Code, this Ordinance is deemed to control. Section 3. The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener s/clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 4. A summary of this ordinance shall be published as required by law. Section 5. This Ordinance shall take effect and be in force five (5) days after final passage and publication, as provided by law. Passed and approved by City Council of the City of Puyallup at regularly scheduled open public meeting on the day of, John Palmer Mayor Approved as to form: Attest: Joseph N. Beck City Attorney Mary Winter City Clerk Ordinance No. Business Licensing Program Page

51 Published: Effective: Ordinance No. Business Licensing Program Page

52 EXHIBIT A Title 5 BUSINESS LICENSES AND REGULATIONS Chapters: 5.04 Business Licenses 5.08 Business and Occupation Taxes 5.10 Business and Occupation Taxes Telephone Business 5.12 Repealed 5.20 Recodified 5.24 Repealed 5.28 Repealed 5.32 Peddlers, Bill Posters, Auctioneers, Junk Dealers and Temporary Stands 5.34 Special Events 5.36 Repealed 5.40 Admissions Tax 5.48 Cabarets 5.50 Adult Cabarets and Adult Entertainment 5.52 Repealed 5.54 Adult Uses 5.60 Sale of Alcoholic Beverages 5.64 Solicitors 5.65 Mobile Vendors 5.68 Bingo, Raffles and Amusement Games 5.72 Repealed 5.76 Repealed 5.80 Towing Companies 5.84 Repealed 5.86 Repealed 5.90 Significant Impact Business 52

53 EXHIBIT A Chapter 5.04 BUSINESS LICENSES Sections: Revenue license power Definitions Persons subject to fees Businesses located outside city Exemptions from all licensing requirements of this chapter Exemptions from payment of fees under this chapter Requirements for issuance of license Investigations and background checks Nonconforming uses Inspections Right of entry Renewal of License and Payment of fees Marijuana producer, processor, and retailer Over or underpayment of fees Grounds for disqualification of licenses Application for license Approval or denial Appeal Suspension or revocation Appeal Authority of director Mailing of notices Disclaimer of city liability License fee additional to others Fee constitutes debt Assignment of licenses Penalties Violations Revenue license power. The provisions of this chapter shall be deemed an exercise of the power of the city to license for revenue Definitions. In construing the provisions of this chapter, except when otherwise declared apparent or clearly from the context a different meaning is intended, the following definitions shall be applied: Business shall mean and include all activities, occupations, trades, pursuits or professions located and/or engaged in, within the city, with the object of gain, benefit, profit or advantage to the person or business owner, or to another person or class, directly or indirectly, regardless of where their permanent location of business is located. Each business location shall be deemed a separate business. Business Licensing Service or BLS means the office within the Washington State Department of Revenue administering the Puyallup city general business licensing process. City clerk means the Puyallup city clerk or his or her designee. 53

54 EXHIBIT A Director means the city manager, or any officer, agent, or employee of the city designated to act on the city manager s behalf. Employee means any person employed at any business enterprise that performs any part of their duties within the city, except casual laborers not employed in the usual course of business. A sole proprietor is not an employee. All officers, agents, dealers, franchisees, etc., of a corporation or business trust, and all but one partner of a partnership (except limited partners), are employees within this definition. Engaging in business means commencing, conducting or continuing in any business, and also the exercise of corporate or franchise powers, as well as liquidating a business when the liquidators hold themselves out to the public as conducting such business. Nonprofit means any charitable organization that has been exempted from the payment of taxes to the federal government under Section 501(c)(3) of the Internal Revenue Code. Person means any individual, firm, partnership, company, corporation, association, receiver, consignee, trustee in bankruptcy, trust, estate, joint venture, club, joint stock company, business trust, society, or any group of individuals acting as a unit. Person or business owner includes any person who engages in business or who is required to have a business license hereunder, or who is liable for the collection of any license fee hereunder, or who performs any act for which a license fee is imposed by this chapter. Year means January 1 st to December 31 st, or other 12-month period as may be applicable Persons subject to fees. There is hereby levied upon and shall be collected from every person engaging in business in the city an annual license fee for the privilege of engaging in business activities and to identify and register businesses that are active in the city, except those engaged in business activities on premises owned by the Western Washington Fair Association and authorized to conduct business by the Western Washington Fair Association. Such license fee shall be measured by using the estimated number of employees, if it is a new business at the time a business license is sought, or the number of employees as reported in the Washington State Unemployment Insurance Report for the quarter ended immediately prior to when the annual license renewal is due, payable as follows: (1) Every sole proprietor and every person employing less than 25 employees: $75.00 per year; (2) Every person employing at least 25 and less than 100 employees: $ per year; (3) For every person employing 100 or moreemployees: $ per year; (4) The Western Washington Fair Association business license fee shall be negotiated annually directly with the city, such negotiations to be concluded by July 1st of each year, and shall reflect cost of the city for the Western Washington Fair Association doing business in the city together with all of those businesses that are conducted on premises owned by the Western Washington Fair Association and approved for operating such businesses by the Western Washington Fair Association. 54

55 EXHIBIT A Businesses located outside city. As to businesses located outside the city and furnishing or performing services within the city, the license fee herein shall be measured by the number of employees of such business to perform any part of their duties within the city Exemptions from all licensing requirements of this chapter. The business license requirements of this chapter shall not apply to the following: (1) Any instrumentality of the United States, state of Washington, or any political subdivision thereof, with respect to the exercise of governmental functions; (2) Temporary stands exempted under PMC Exemptions from payment of fees under this chapter. The requirement to pay license fees as set forth in this chapter shall not apply to the following, provided all other provisions of this chapter, including without limitation the requirement to obtain and maintain a current business license, shall apply to all businesses covered by this chapter: (1) Nonprofit organizations, including but not limited to religious, civic, charitable, benevolent, nonprofit, cultural or youth organizations, as defined in PMC ; (2) The activities other than temporary stands, licensed under Chapters 5.32 and 5.34 PMC including contests, circuses, shows, carnivals, auctions, etc.; (3) Any farmer or gardener who sells, delivers or peddles any fruit, vegetables, berries, butter, eggs, fish, milk, poultry, meats or any farm produce or edibles raised, caught, produced or manufactured by such person in any place in this state; (4) All persons engaged in parking vehicles with a lot capacity of not more than 15 cars; (5) Family day care homes for children and mini day care homes for children as the same are defined under PMC ; (6) Persons engaged in irregular, casual activities such as babysitting, delivery of newspapers, casual lawn mowing, casual car washing, and other similar activities; (7) Persons engaged in commerce using an Internet website, hobbyists, and crafters who engage in sales that do not involve home visits; and (8) Businesses meeting all of the following criteria: (a) Having no employees performing work other than delivery within the city; 55

56 EXHIBIT A (b) Having no sales people soliciting sales within the city; (c) Having no installers or contractors working within the city; (d) Having no offices, warehouses or other physical location(s) within the city; and (e) Having no inventory located within the city Requirements for issuance of license. No person shall engage in any business or activity in the city for which a license is required or a license fee is imposed by this chapter without first having obtained and being the holder of a valid and subsisting license, to be known as a business license, issued under the provisions of this chapter, as hereinafter provided, and without paying the license fee imposed by this chapter, which license fee shall accompany the application for the license. Such license shall expire on the date established by the Business Licensing Service, and must be renewed on or before that expiration date to continue business in the city. The application for a license shall be to the Business Licensing Service, which application shall set forth the name of the applicant, place of business, the nature of the business and the amount of the license fee prescribed by this chapter. Every license granted under this chapter shall be posted in a conspicuous place in the place of business of the licensee for which it was issued. Any license issued under and by virtue of the provisions of this chapter shall be personal and nontransferable. In case business is transacted at two or more separate places by one person or business owner, a separate license for each place at which business is transacted with the public shall be required. If two or more business owners conduct separate businesses at the same location each such business must obtain its own business license. If payment is made by draft or check, the fee shall not be deemed paid unless the check or draft is honored in the usual course of business, nor shall acceptance of any such check or draft be an acquittance or discharge of the fee unless and until said check or draft is honored. The city authorizes the Business Licensing Service to mail forms for applications and renewals for licenses, or otherwise provide notifications, but failure of the person or business owner to receive any such forms or notifications shall not excuse the person or business owner from making timely application for and securing or renewing the license required and payment of the license fee. If any person or business owner required by the terms and provisions of this chapter to pay a license fee for any period fails or refuses to do so, that person shall not be granted a city license for the current period until such delinquent license fee, together with penalties, has been paid in full Investigations and background checks. (1) Any application for licenses may be investigated by such departments or officers of the city as the director may determine. (2) All applicants for a license may be subject to a criminal background check, and the results of such check may be sufficient grounds for denial of a license Nonconforming uses. There exists a need to identify and register businesses which are active in the city in order to protect the public health, safety and welfare of the community. The issuance of a business license by the city does not constitute either approval of a business or the use of any particular parcel in the city for a business purpose. By issuing a 56

57 EXHIBIT A business license, the city shall not be precluded from taking enforcement action against any use which is not authorized in the zone in which it is occurring, and does not vest the licensee with any rights to continue a nonconforming use Inspections Right of entry. The director or an authorized representative of the development services department, fire department or police department are authorized to make inspections of any licensed premises during normal hours of operation of said business and take action as may be required to enforce the provisions of the Puyallup Municipal Code Renewal of License and Payment of fees. All business licenses shall be renewed on or before the expiration date established by the Business Licensing Service if the business is to be continued. The term of the license and respective fee due may be prorated in order to synchronize the expiration date with that established for the business by the Business Licensing Service. Application for renewal shall be made to the Business Licensing Service and must include all information required and all fees due including any other license fees and the handling fee authorized under RCW , and any delinquency fee authorized under RCW when applicable. A license that remains unrenewed after 120 days is automatically terminated, and the business would need to submit a new application to resume doing business in Puyallup Marijuana producer, processor, and retailer. The city shall not issue a city business license to a person who will operate as a marijuana processor, marijuana producer, or marijuana retailer, as such terms are defined in PMC Over or underpayment of fees. If, upon investigation of any application and/or receipts, the director finds that the fee paid on any license or license renewal is more than the amount required of the applicant, the director shall return the overpaid amount. If the director finds that the fee paid is less than required, the director shall mail a statement to the applicant showing the balance due, who shall within seven days pay the amount shown thereon Grounds for disqualification of licenses. Pursuant to the provisions of this chapter, no license shall be issued to the following persons: (1) Any minor under 18 years of age. (2) Any person who, if licensed, is likely to present a danger to the public health, safety, or welfare by reason of any of the following: (a) The applicant or his or her employees or agents have been convicted of a crime which relates directly to the specific occupation, trade, vocation, or business for which the license is sought; provided, the time elapsed between the violation and the date of license application is less than three years for a felony conviction, or less than one year for a misdemeanor conviction. (b) The applicant has had a similar license revoked or suspended pursuant to the provisions of PMC (c) The director has reasonable grounds to believe the applicant to be dishonest or to desire such license to enable the applicant to practice some illegal act or some act injurious to the public health or safety. 57

58 EXHIBIT A (3) Any person who is not qualified under any specific provision of this chapter for any particular license for which application is made Application for license Approval or denial Appeal. The director shall have authority to make administrative decisions, including approval, conditioning, suspension, revocation, or denial of licenses required hereunder. The applicant, licensee or person or entity who is subject to the administrative decision may, within 10 days after issuance of the administrative decision, appeal said decision by filing a written notice of appeal, clearly stating the grounds that the appeal is based on, with the city clerk. The appeal shall occur before the hearing examiner of the city, which appeal shall be governed by Chapter 2.54 PMC Suspension or revocation Appeal. (1) The director shall have the power and authority to suspend or revoke any registration or license issued under the provisions of this chapter. The director shall notify such licensee in writing by certified mail of the suspension or revocation of its license and the grounds therefor. Any license issued under this chapter may be suspended or revoked based on one or more of the following grounds: (a) The registration was procured by fraud or false representation of fact. (b) The licensee has failed to comply with any provisions of this chapter. (c) The licensee has failed to comply with any provisions of the Puyallup Municipal Code. (d) The licensee is in default in any payment of any license fee or tax under this title. (e) The licensee or employee has been convicted of a crime involving the business. (f) Licensee s continued conduct of the business for which the license was issued will result in a danger to the public health, safety, or welfare by reason of any of the following: (i) The licensee, licensee s employees or agents have been convicted of a crime which bears a direct relationship to the conduct of the business under the license issued pursuant to this chapter. (ii) The licensee, or licensee s agents or employees, have, in the conduct of the business, violated any law or ordinance relating to public health or safety. (iii) The conduct of the business for which the license was issued has resulted in the creation of a public nuisance as defined in the PMC or in state law. (2) Any licensee may, within 10 calendar days from the date that the suspension or revocation notice was mailed to the licensee, appeal such suspension or revocation by filing a written notice of appeal ( petition ) setting forth the grounds therefor with the city clerk. A copy of the petition must be provided by the licensee to the director and the city attorney on or before the date the petition is filed with the city clerk. The hearing shall be conducted in accordance with the procedures for hearing contested cases set out in Chapter 2.54 PMC. The hearing examiner shall set a date for hearing said appeal and notify the licensee by mail of the time and place of the hearing. After the hearing thereon the hearing examiner shall, after appropriate findings of fact and conclusions of law, affirm, modify, or overrule the suspension or revocation and reinstate the license, and may impose any terms upon the continuance of the registration. 58

59 EXHIBIT A No suspension or revocation of a license issued shall take effect until 10 calendar days after the mailing of the notice thereof by the director and, if appeal is taken as herein prescribed, the suspension or revocation shall be stayed pending final action by the hearing examiner. All licenses which are suspended or revoked shall be surrendered to the city on the effective date of such suspension or revocation. The decision of the hearing examiner shall be final. The licensee and/or the director may seek review of the decision by the superior court of Washington in and for Pierce County within 21 days from the date of the decision. If review is sought as herein prescribed, the suspension or revocation shall be stayed pending final action by the superior court. Upon revocation of any license as provided in this section, no portion of the license fee shall be returned to the licensee Authority of director. The director shall have the power, and it shall be the director s duty, from time to time, to adopt, publish and enforce rules and regulations not inconsistent with this chapter or with the law for the purpose of carrying out the provisions hereof, and it is unlawful to violate or fail to comply with any such rules or regulations Mailing of notices. Any notice required by this chapter to be mailed to any person or business owner shall be sent by ordinary mail, addressed to the last known mailing address of the person or business owner as shown in the records, or to such address as is able to be ascertained by reasonable effort. Failure of the person or business owner to receive any such mailed notice shall not release the person or business owner from any fees or any penalties thereon, nor shall such failure operate to extend any time limit set by the provisions of this chapter Disclaimer of city liability. The city of Puyallup expressly finds and requires that responsibility for compliance with the provisions of this chapter rests with license applicants and their agents and that no action, inaction, or omission of the city or any of its agents or employees shall serve to assume or shift responsibility for compliance with the provisions of this chapter to any other party, including the city. Furthermore, issuance of a license pursuant to this chapter does not constitute the creation of a duty by the city to indemnify the licensee for any wrongful acts against the public, or to guarantee the quality of goods, services or expertise of a licensee. The issuance of a license does not shift responsibility from the licensee to the city for proper training, conduct or equipment of the licensee or their agents, employees or representatives, even if specific regulations require standards of training, conduct or inspection License fee additional to others. The license fee herein levied shall be additional to any license fee imposed or levied under the law of any other chapter of the city except as herein otherwise expressly provided Fee constitutes debt. Any license fee due and unpaid under this chapter, and all penalties thereon, shall constitute a debt to the city and may be collected by court proceedings in the same manner as any other debt in like amount, which remedy shall be in addition to all other existing remedies Assignment of licenses. 59

60 EXHIBIT A The business license is personal and may not be assigned or transferred. A change in ownership of a business requires the new owner to apply for a license as provided in this chapter. If an existing business owner changes ownership structure, such as a sole proprietor forming a corporation or limited liability company, and wishes to conduct the same business under the new business structure, a new business license application must be submitted under the new business structure, as provided in this chapter Penalties Violations. (1) Violations. It shall be unlawful for any person to violate any of the provisions of this chapter and such person shall be subject to the penalties detailed below. Additionally, the license of the business in which a violation occurs may be revoked for such violation, whether the owner knew of or encouraged the violation. (2) Monetary Penalties. (a) Penalties. Every person who operates a business without first obtaining a license issued pursuant to this chapter, shall be assessed by the director an additional monetary penalty in the amount of $ This penalty shall be in addition to the required license fee remitted through the Business Licensing Service. (b) Collection. Any license fee due and unpaid and delinquent under this chapter shall constitute a debt to the city. The city may, pursuant to Chapter RCW, use a collection agency to collect unpaid fees or taxes owed or assessed, or it may seek collection by court proceedings, which remedies shall be in addition to all other remedies. (3) Criminal Penalties for Repeat Violations. A second or repeat violation of any provision of this chapter shall constitute a misdemeanor punishable by a fine of a sum not exceeding $1,000 or by imprisonment not exceeding 90 days or by both such fine and imprisonment. Each separate day or portion thereof during which any violation of any provision of this chapter continues shall constitute a separate violation and upon conviction thereof shall be punished as provided in this section. 60

61 EXHIBIT A Chapter 5.08 Business and Occupation Taxes not shown No changes recommended 61

62 EXHIBIT A Chapter 5.10 Business and Occupation Taxes Telephone Business Not Shown No changes recommended 62

63 EXHIBIT A Chapter 5.32 Peddlers, Bill Posters, Auctioneers, Junk Dealers and Temporary Stands not shown No changes recommended 63

64 EXHIBIT A Chapter 5.34 Special Events not shown No changes recommended 64

65 EXHIBIT A Chapter 5.40 Admissions Tax not shown No changes recommended 65

66 EXHIBIT A Chapter 5.48 CABARETS Sections: Definitions License Required Licensing restrictions License Application Issuance License Fee License Expiration License Revocation Appeal Authority of state board Adult entertainment Penalty for violation Severability Definitions. Cabaret means any room, place or space whatsoever in the city in which music, singing, dancing, or other similar entertainment is permitted in connection with any hotel, restaurant, cafe, club, tavern, eating place, directly or indirectly selling, serving, or providing the public, with or without charge, food, or liquor. The words music and entertainment as used herein shall not apply to radios or mechanical devices. Liquor means all beverages defined in RCW Person means one or more natural persons of either sex, firms, copartnerships and corporations, whether acting by themselves or by servant, agent or employee License Required. It is unlawful for any person to conduct, manage or operate a cabaret unless such person is the holder of a valid and subsisting license from the city, obtained in the manner herein provided, and which is in addition to a general business license as may be required under Chapter 5.04 PMC; provided, however, that a cabaret license is not required where a cabaret is conducted for a period of two days or less during any calendar year Licensing restrictions. No license shall be issued to: (1) A person who has been convicted of a felony within five years prior to filing application, and which is reasonably related to his/her fitness or ability to conduct, manage or operate a cabaret; (2) A person whose place of business is conducted by a manager or agent, unless such manager or agent possesses the same qualifications required of the licensee; (3) A copartnership, unless all the members thereof shall be qualified to obtain a license as provided herein; 66

67 EXHIBIT A (4) A person who has been convicted within the last five years of a violation of any federal or state law or city ordinance concerning the manufacture, possession, or sale of liquor subsequent to the passage of the Washington State Liquor Act, or has forfeited his bond to appear in court to answer charges of any such violation; (5) A person who has been convicted within the last five years of a violation of any federal or state law or city ordinance concerning the manufacture, possession or sale of narcotics; (6) A corporation, unless all of the officers, directors, and stockholders thereof shall be qualified to obtain a license as provided herein. Such license shall be issued to the manager or other directing head thereof; (7) Any person, whose place of business has had 10 or more arrests with ensuing criminal charges resulting from activities within the establishment, within the one-year period immediately prior to the date of application for the cabaret license. In addition to the foregoing, every applicant for a cabaret license shall be subject to the business license requirements of Chapter 5.04 PMC License Application Issuance. Application for such license shall be made to the city clerk, together with a receipt from the treasurer from the city for the amount of the license in full. Upon receipt of such application, the same shall be transmitted to the chief of police for a full investigation as to the truth of the statements contained therein and any other investigation permitted under this chapter. After the chief of police has conducted the investigation, he/she will report to the city clerk, either approving or denying the application. In the event the chief of police denies the application, he will state in writing the reasons for such denial. The city clerk shall either issue or deny the cabaret license depending on the determination of the chief of police License Fee. Any person desiring to operate a cabaret shall first procure a cabaret license at a cost of $ per year License Expiration. There shall be no prorating of the fee mentioned in PMC , and such license shall expire on the 31st day of December of each year; except that in the event that the original application be made subsequent to June 30th, then one-half of the annual license fee may be accepted for the remainder of said year. The license shall not be assignable License Revocation. The city clerk, upon direction from the chief of police, may revoke any license issued under the provisions of this chapter should one or more of the following conditions apply: (1) It is determined that a cabaret license was procured by fraud or false representation of fact; (2) The violation of any of, or failure to comply with, the provisions of this chapter by the person holding such license or by any of his managers or agents; (3) For any convictions for offenses identified in PMC (1), (4) and (5), as committed upon the licensed premises by any person holding such license, or by any of his/her managers or agents, following issuance of the cabaret license; 67

68 EXHIBIT A (4) In the event that 10 or more arrests with ensuing criminal charges occur within a one-year period, from activities occurring within the cabaret establishment Appeal. Any person aggrieved by the action of the chief of police in denying the issuance or renewal of a cabaret license shall have the right to appeal such action to Pierce County Superior Court through petition for writ within 20 days of the decision Authority of state board. Any license issued pursuant to this chapter shall be subject to any rules or regulations of the Washington State Liquor Control Board relating to the sale of intoxicating liquor, and any violation of said rules and regulations shall be grounds for revocation of said license Adult entertainment. Any cabaret establishment which is also a commercial premises to which any member of the public is invited or admitted where the entertainer provides live adult entertainment to any member of the public must comply with the requirements of Chapter 5.50 PMC et seq Penalty for violation. Any person violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than $1,000 and/or by imprisonment not to exceed 90 days, or by both such fine and imprisonment. Each day of violation of the provisions of this chapter shall be deemed to be a separate offense Severability. If any portion of this chapter, or its application to any person or circumstances is held invalid, the validity of this chapter as a whole, or any portion thereof, and its application to other persons or circumstances shall not be affected. 68

69 EXHIBIT A Chapter 5.50 ADULT CABARETS AND ADULT ENTERTAINMENT Sections: Findings of fact Definitions License required License prohibited to certain classes Application Adult cabaret license fees Appeal Standards of conduct and operation Adult cabarets License term Assignment Renewals License denial, suspension and revocation Hearing Liquor regulations Violation a misdemeanor Nuisance declared Additional enforcement Severability Zoning and related restrictions Findings of fact. Based on public testimony and other evidence and information presented to it, and on the evidence considered by other cities which have investigated the impacts of adult entertainment businesses, the city council makes the following findings of fact: (1) The secondary effects of the activities defined and regulated in this article are detrimental to the public health, safety, morals, and general welfare of the citizens of the city and, therefore, such activities must be regulated. (2) Regulation of the adult entertainment industry is necessary because in the absence of such regulation significant criminal activity has historically and regularly occurred. This history of criminal activity in the adult entertainment industry has included prostitution, illegal employment of minors, narcotics and alcoholic beverage law violation, breaches of the peace, tax evasion and the presence within the industry of individuals with hidden ownership interests and outstanding arrest warrants. (3) Proximity between entertainers and patrons during adult entertainment performances can facilitate sexual contact, prostitution and related crimes. Concerns about crime and public sexual activity are legitimate and compelling concerns of the city which demand reasonable regulation of adult entertainment establishments in order to protect the public health, safety and general welfare. (4) The activities described in subsections (2) and (3) of this section occur, in the absence of regulation regardless of whether the adult entertainment is presented in conjunction with the sale of alcoholic beverages. 69

70 EXHIBIT A (5) It is necessary to license entertainers in the adult entertainment industry to prevent the exploitation of minors; to ensure that each such entertainer is an adult and to ensure that such entertainers have not assumed a false name, which would make regulation of the entertainer difficult or impossible. (6) It is necessary to have a licensed manager on the premises of establishments offering adult entertainment at such times as such establishments are offering adult entertainment so that there will at all necessary times be an individual responsible for the overall operation of the adult entertainment establishment, including the actions of patrons, entertainers and other employees. (7) The license fees required in this chapter are necessary as nominal fees imposed as necessary regulatory measures designed to help defray the substantial expenses incurred by the city in regulating the adult entertainment industry. (8) Hidden ownership interests for the purposes of skimming profits and avoiding the payment of taxes have historically occurred in the adult entertainment industry in the absence of regulation. These hidden ownership interests have historically been held by organized and white collar crime elements. In order for the city to effectively protect the public health, safety, morals and general welfare of its citizens and effectively allocate its law enforcement resources it is important that the city be fully apprised of the actual ownership of adult entertainment establishments, and identities and backgrounds of persons responsible for management and control of the adult entertainment establishment. (9) It is not the intent of this chapter to suppress or censor any expressive activities protected by the First Amendment of the United States Constitution or Article I, Section 5 of the Washington State Constitution, but rather to enact time, place and manner regulations which address the compelling interests of the city in mitigating the secondary effects of adult entertainment establishments Definitions. For purposes of this chapter, certain terms and words are defined as follows: (1) Adult cabaret means any commercial premises to which any member of the public is invited or admitted and where an entertainer provides live adult entertainment to any member of the public. (2) Adult entertainment means: (a) Any exhibition, performance or dance of any type conducted in a premises where such exhibition, performance or dance involves a person who is unclothed or in such costume, attire or clothing as to expose any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or wearing any device or covering exposed to view which simulates the appearance of any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or human male genitals in a discernibly turgid state, even if completely and opaquely covered; or (b) Any exhibition, performance or dance of any type conducted in a premise where such exhibition, performance or dance is distinguished or characterized by a predominant emphasis on the depiction, description, simulation or relation to the following specified sexual activities: (i) Human genitals in a state of sexual stimulation or arousal; (ii) Acts of human masturbation, sexual intercourse or sodomy; or 70

71 EXHIBIT A (iii) Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast; or (c) Any exhibition, performance or dance which is intended to sexually stimulate any member of the public and which is conducted on a regular basis or as a substantial part of the premises activity. This includes, but is not limited to, any such exhibition, performance or dance performed for, arranged with or engaged in with fewer than all members of the public on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance, exhibition or dance and which is commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or straddle dancing. (3) Applicant means the individual or entity seeking an adult cabaret license in the city of Puyallup. (4) Applicant control persons means all partners, corporate officers and directors and any other individuals in the applicant s business organization who hold a significant interest in the adult cabaret business, based on responsibility for management of the adult cabaret business. (5) Clerk means the city clerk for the city of Puyallup. (6) Day means a calendar day. (7) Employee means any and all persons, including managers, entertainers, and independent contractors who work in or at or render any services directly related to the operation of any adult cabaret. (8) Entertainer means any person who provides adult entertainment within an adult cabaret as defined in this section, whether or not a fee is charged or accepted for such entertainment. (9) Hearing body shall be the city council for the city of Puyallup, or such other body as designated by the city council. (10) Liquor means all beverages defined in RCW (11) Manager means any person who manages, directs, administers or is in charge of the affairs and/or conduct of any portion of any activity involving adult entertainment occurring at any adult cabaret, and includes assistant managers working with or under the direction of a manager to carry out such purposes. (12) Member of the public means any customer, patron, club member, or person, other than an employee as defined in this section, who is invited or admitted to an adult cabaret. (13) Operator means any person operating, conducting or maintaining an adult cabaret. (14) Person means any individual, partnership, corporation, trust, incorporated or unincorporated association, marital community, joint venture, governmental entity, or other entity or group of persons however organized. (15) Sexual conduct means acts of: (a) Sexual intercourse within its ordinary meaning, occurring upon any penetration, however slight; or (b) Any penetration of the vagina or anus, however slight, by an object; or 71

72 EXHIBIT A (c) Any contact between persons involving the sex organs of one person and the mouth or anus of another; or (d) Masturbation, manual or instrumental, of oneself or of one person by another; or (e) Touching of the sex organs or anus, whether clothed or unclothed, of oneself or of one person by another License required. (1) It is unlawful for any person to conduct, manage or operate an adult cabaret unless such person is the holder of a valid and subsisting license from the city to do so, obtained in the manner provided in this chapter, and which is in addition to a general business license that may be required under Chapter 5.04 PMC. (2) It is unlawful for any entertainer, employee or manager to knowingly work in or about, or to knowingly perform any service or entertainment directly related to, the operation of an unlicensed adult cabaret. (3) It is unlawful for any entertainer to perform in an adult cabaret unless such person is the holder of a valid and subsisting license from the city to do so. (4) It is unlawful for any manager to work in an adult cabaret unless such person is the holder of a valid and subsisting license from the city to do so License prohibited to certain classes. No license shall be issued to: (1) A natural person who has not attained the age of 21 years, except that licenses may be issued to persons who have attained the age of 18 years with respect to adult cabarets where no intoxicating liquors are served or provided. (2) A person whose place of business is conducted by a manager or agent, unless such manager or agent possesses the same qualifications required of the licensee, or in the case of a manager of an adult cabaret, the manager has obtained a manager s license. (3) A partnership or copartnership, unless all the members thereof are qualified to obtain a license as provided in this chapter. Such license shall be issued to the manager or agent thereof. (4) A corporation, unless all the officers and directors thereof are qualified to obtain a license as provided herein. Such license shall be issued to the manager or agent thereof Application. (1) Adult Cabaret License. (a) All applications for an adult cabaret license shall be submitted to the clerk in the name of the person or entity proposing to conduct an adult cabaret on the business premises and shall be signed by such person and certified as true under penalty of perjury. All applications shall be submitted on a form supplied by the city, which shall require the following information: 72

73 EXHIBIT A (i) For the applicant and for each applicant control person provide names, any aliases or previous names, driver s license number, if any, social security number, if any, and business, mailing, and residential address, and business telephone number. (ii) If a partnership, whether general or limited, and if a corporation, date and place of incorporation, evidence that it is in good standing under the laws of Washington, and name and address of any registered agent for service of process. (iii) Whether the applicant or any partner, corporate officer, or director of the applicant holds any other licenses under this chapter or any license for similar adult entertainment or sexually oriented business, including motion picture theaters and panorams, from the city of Puyallup or another city, county or state and if so, the names and addresses of each other licensed business. (iv) A summary of the business history of the applicant and applicant control persons in owning or operating the adult entertainment or other sexually oriented businesses, providing names, addresses and dates of operation for such businesses, and whether any business license or adult entertainment license has been revoked or suspended, and the reason therefor. (v) For the applicant and all applicant control persons, any and all criminal convictions or forfeitures within five years immediately preceding the date of the application, other than parking offenses or minor traffic infractions, including the dates of conviction, nature of the crime, name and location of court and disposition. (vi) For the applicant and all applicant control persons, a description of business, occupation or employment history for the three years immediately preceding the date of the application. (vii) Authorization for the city, its agents and employees to seek information to confirm any statements set forth in the application. (viii) The location and doing-business-as name of the proposed adult cabaret, including a legal description of the property, street address, and telephone number, together with the name and address of each owner and lessee of the property. (ix) Two, two-inch by two-inch color photographs of the applicant and applicant control persons, taken within six months of the date of application showing only the full face. (x) A complete set of fingerprints for the applicant or each applicant control person, taken by Puyallup Police Department employees. (xi) A scale drawing or diagram showing the configuration of the premises for the proposed adult cabaret, including a statement of the total floor space occupied by the business, and marked dimensions of the interior of the premises. Performance areas, seating areas, manager s office and stations, restrooms and service areas shall be clearly marked on the drawing. An application for a license for an adult cabaret shall include building plans which demonstrate conformance with PMC (b) An application shall be deemed complete upon the applicant s provision of all information requested above, including identification of none where that is the correct response, and the applicant s verification that the application is complete. The clerk may request other information or clarification in addition to that provided in a complete application where necessary to determine compliance with this chapter. 73

74 EXHIBIT A (c) A nonrefundable application fee of $ must be paid at the time of filing an application in order to defray the costs of processing the application. (d) Each applicant shall verify, under penalty of perjury, that the information contained in the application is true. (e) If any person or entity acquires, subsequent to the issuance of an adult cabaret license, a significant interest based on responsibility for management or operation of the licensed premises or the licensed business, notice of such acquisition shall be provided in writing to the city clerk, no later than 21 days following such acquisition. The notice required shall include the information required for the original adult cabaret license application. (f) The adult cabaret license, if granted, shall state on its face the name of the person or persons to whom it is issued, the expiration date, the doing-business-as name and the address of the licensed adult cabaret. The permit shall be posted in a conspicuous place at or near the entrance to the adult cabaret so that it can be easily read at any time the business is open. (g) No person granted an adult cabaret license pursuant to this chapter shall operate the adult cabaret business under a name not specified on the license, nor shall any person operate an adult cabaret under any designation or at any location not specified on the license. (h) Upon receipt of the complete application and fee, the clerk shall provide copies to the police, fire, building official, and community development department for their investigation and review to determine compliance of the proposed adult cabaret with the laws and regulations which each department administers. Each department shall, within 30 days of the date of such application, inspect the application and premises and shall make a written report to the clerk whether such application and premises comply with the laws administered by each department. No license may be issued unless each department reports that the application and premises comply with the relevant laws. In the event the premises is not yet constructed, the departments shall base their recommendation as to premises compliance on their review of the drawings submitted in the application. Any adult cabaret license approved prior to premises construction shall contain a condition that the premises may not open for business until the premises have been inspected and determined to be in substantial conformance with the drawings submitted with the application. A department shall recommend denial of a license under this subsection if it finds that the proposed adult cabaret is not in conformance with the requirements of this chapter or other law in effect in the city. A recommendation for denial shall cite the specific reason therefor, including applicable laws. (i) An adult cabaret license shall be issued by the clerk within 30 days of the date of filing a complete license application and fee, unless the clerk determines that the applicant has failed to meet any of the requirements of this chapter or provide any information required under this subsection or that the applicant has made a false, misleading or fraudulent statement of material fact on the application for a license. The clerk shall grant an extension of time in which to provide all information required for a complete license application upon the request of the applicant. If the clerk finds that the applicant has failed to meet any of the requirements for issuance of an adult cabaret license, the clerk shall deny the application in writing and shall cite the specific reasons therefor, including applicable law. If the clerk fails to issue or deny the license within 30 days of the date of filing of a complete application and fee, the applicant shall be permitted, subject to all other applicable law, to operate the business for which the license was sought until notification by the clerk that the license has been denied, but in no event may the clerk extend the application review time for more than an additional 20 days. 74

75 EXHIBIT A (2) Adult Cabaret Manager and Entertainer Licenses. (a) No person shall work as a manager, assistant manager or entertainer at an adult cabaret without an entertainer s or manager s license from the city. Each applicant for a manager s or entertainer s license shall complete an application on forms provided by the city containing the information identified below. A nonrefundable application fee of $ shall accompany the application. A copy of the application shall be provided to the police department for its review, investigation and recommendation. All applications for a manager s or entertainer s license shall be signed by the applicant and certified to be true under penalty of perjury. The manager s or entertainer s license application shall require the following information: (i) The applicant s name, home address, home telephone number, date and place of birth, fingerprints taken by Puyallup police department employees, social security number, and any stage names or nicknames used in entertaining. The applicant shall be responsible for advising the clerk in writing of any change in home address. Failure of an applicant to maintain with the clerk the applicant s current home address shall be a waiver of notice provisions in this chapter. (ii) The name and address of each business at which the applicant intends to work. (iii) Documentation that the applicant has attained the age of 18 years. Any two of the following shall be accepted as documentation of age: (A) A motor vehicle operator s license issued by any state bearing the applicant s photograph and date of birth; (B) A state issued identification card bearing the applicant s photograph and date or birth; (C) An official passport issued by the United States of America; (D) An immigration card issued by the United States of America; or (E) Any other identification that the city determines to be acceptable. (iv) A complete statement of all convictions of the applicant for any misdemeanor or felony violations in the city of Puyallup or any other city, county, or state within five years immediately preceding the date of the application, except parking violations or minor traffic infractions, including the dates of conviction, nature of the crime, name and location of court and disposition. (v) A description of the applicant s principal activities or services to be rendered. (vi) Two, two-inch by two-inch color photographs of applicant, taken within six months of the date of application showing only the full face. (vii) Authorization for the city, its agents and employees to investigate and confirm any statements set forth in the application. (viii) Every adult entertainer shall provide his or her license to the adult cabaret manager on duty on the premises prior to his or her performance. The manager shall retain the licenses of the adult entertainers readily available for inspection by the city at any time during business hours of the adult cabaret. 75

76 EXHIBIT A (b) The clerk may request additional information or clarification when necessary to determine compliance with this chapter. (c) An adult cabaret manager s or an adult entertainer s license shall be issued by the clerk within 14 days from the date the complete application and fee are received unless the clerk determines that the applicant has failed to provide any information required to be supplied according to this chapter, has made any false, misleading or fraudulent statement of material fact in the application, or has failed to meet any of the requirements for issuance of a license under this chapter. If the clerk determines that the applicant has failed to qualify for the license applied for, the clerk shall deny the application in writing and shall cite the specific reasons therefor, including applicable laws. If the clerk has failed to approve or deny any application for an adult cabaret manager s license or adult entertainer s license within 14 days of filing of a complete application, the applicant may, subject to all other applicable laws, commence work as an adult cabaret manager or adult entertainer in a duly licensed adult cabaret until notified by the clerk that the license has been denied, but in no event may the clerk extend the application review for more than an additional 20 days. (d) An applicant for an adult cabaret manager s or an adult entertainer s license shall be issued a temporary license upon receipt of a complete license application and fee. Said temporary license will automatically expire on the fourteenth day following the filing of the complete application and fee, unless the clerk has failed to approve or deny the license application in which case the temporary license shall be valid until the clerk approves or denies the application, or until the final determination of any appeal from a denial of the application. In no event may the clerk extend the application review time for more than an additional 20 days Adult cabaret license fees. (1) Any person desiring to obtain an adult cabaret license shall first pay a license fee of $ per year. (2) Any person desiring to obtain an adult cabaret manager s license shall first pay a license fee of $ per year. (3) Any person desiring to obtain an adult cabaret entertainer s license shall first pay a license fee of $ per year Appeal. (1) Denial of License. Any person aggrieved by the action of the clerk in refusing to issue or renew any license issued under this chapter shall have the right to appeal such action to the city council, or to such other hearing body as may hereafter be established by the city council for the hearing of license appeals, by filing a notice of appeal with the clerk within 10 days of notice of the action from which the appeal was taken. The filing of such appeal shall stay the action of the clerk, pending the decision of the hearing body. The hearing body shall set a date for hearing such appeal, to take place within 45 days of the date of receipt of the timely notice of appeal. At such hearing the appellant and other interested persons may appear and be heard, subject to rules and regulations of the hearing body. The hearing body shall render its decision on the appeal within 30 days following the close of the appeal hearing. (2) The decision of the hearing body shall be final unless the decision is appealed to the Pierce County Superior Court by filing with the court and service on the city clerk within 10 days of such decision. If the hearing body affirms the city clerk s action to deny, suspend or revoke a license, then that decision shall take effect within 10 days of such decision. If the hearing body does not affirm the city clerk s denial, suspension or revocation action, then the decision shall take effect immediately upon entry. 76

77 EXHIBIT A (3) In cases of summary suspension of licenses because of the threat of immediate serious injury or damage to persons or property pursuant to PMC (7), the hearing body, upon receipt of timely notice of appeal, shall set a date for a hearing within 20 days of the date of such receipt. The hearing body shall render a decision within 30 days of the conclusion of the hearing. The filing of such appeal shall not stay the action of the city clerk or other official. (4) Appeal to Superior Court. Any person aggrieved by the decision of the hearing body may appeal to the Pierce County Superior Court for a writ of certiorari, prohibition or mandamus as provided in subsection (2) of this section Standards of conduct and operation Adult cabarets. (1) The following standards of conduct must be adhered to by employees of any adult cabaret while in any area in which members of the public are allowed to be present: (a) No employee or entertainer shall be unclothed or in such less than opaque and complete attire, costume or clothing so as to expose to view any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, except upon a stage, as described in subsection (4) of this section, at least 18 inches above the immediate floor level and removed at least eight feet from the nearest member of the public. (b) No employee or entertainer mingling with members of the public shall be unclothed or in less than opaque and complete attire, costume or clothing as described in subsection (1)(a) of this section, nor shall any male employee or entertainer at any time appear with his genitals in a discernibly turgid state, even if completely and opaquely covered, or wear or use any device or covering which simulates the same. (c) No employee or entertainer mingling with members of the public shall wear or use any device or covering exposed to view which simulates the breast below the top of the areola, vulva, genitals, anus, any portion of the pubic region, or buttocks. (d) No employee or entertainer shall caress, fondle or erotically touch any member of the public. No employee or entertainer shall encourage or permit any member of the public to caress, fondle or erotically touch any employee or entertainer. (e) No employee or entertainer shall perform actual or simulated acts of sexual conduct as defined in this chapter, or any act which constitutes a violation of Chapter 7.48A RCW, the Washington Moral Nuisances Statute. (f) No employee or entertainer mingling with members of the public shall conduct any dance, performance or exhibition in or about the nonstage area of the adult cabaret unless that dance, performance or exhibition is performed at a distance of no less than four feet, measured torso-to-torso, from the member or members of the public for whom the dance, performance or exhibition is performed. (g) No tip or gratuity offered to or accepted by an adult entertainer may be offered or accepted prior to any performance, dance or exhibition provided by the entertainer. No entertainer performing upon any stage area shall be permitted to accept any form of gratuity offered directly to the entertainer by any member of the public. Any gratuity offered to any entertainer performing upon any stage area must be placed into a receptacle provided for receipt of gratuities by the adult cabaret or provided through a manager on duty on the premises. 77

78 EXHIBIT A Any gratuity or tip offered to any adult entertainer conducting any performance, dance or exhibition in or about the nonstage area of the adult cabaret shall be placed into the hand of the adult entertainer or into a receptacle provided by the adult entertainer, and not upon the person or into the clothing of the adult entertainer. (2) At any adult cabaret, the following are required: (a) Admission must be restricted to persons of the age of 18 years or more. It is unlawful for any owner, operator, manager or other person in charge of an adult cabaret to knowingly permit or allow any person under the age of 18 years of age specified to be in or upon such premises. (b) Neither the performance nor any photograph, drawing, sketch or other pictorial or graphic representation thereof displaying any portion of the breasts below the top of the areola or any portion of the pubic hair, buttocks, genitals, and/or anus may be visible outside of the adult cabaret. The prohibition of this subsection is intended to be limited to adult cabaret performances and representations of same, and is not intended to prohibit the activities enumerated in subsection (6) of this section. (c) No member of the public shall be permitted at any time to enter into any of the nonpublic portions of the adult cabaret, which shall include but are not limited to: the dressing rooms of the entertainers or other rooms provided for the benefit of employees, or the kitchen and storage areas; except that persons delivering goods and materials, foods and beverages, or performing maintenance or repairs to the premises or equipment on the premises may be permitted into nonpublic areas to the extent required to perform their job duties. (3) The responsibilities of the manager of an adult cabaret shall include but are not limited to: (a) A licensed manager shall be on duty at an adult cabaret at all times adult entertainment is being provided or members of the public are present on the premises. The name and license of the manager shall be prominently posted during business hours. The manager shall be responsible for verifying that any person who provides adult entertainment within the premises possesses a current and valid entertainer s license. (b) The licensed manager on duty shall not be an entertainer. (c) The manager or an assistant manager licensed under this chapter shall maintain visual observation of each member of the public at all times any entertainer is present in the public or performance areas of the adult cabaret. Where there is more than one performance area, or the performance area is of such size or configuration that one manager or assistant manager is unable to visually observe, at all times, each adult entertainer, each employee, and each member of the public, a manager or assistant manager licensed under this chapter shall be provided for each public or performance area or portion of a public or performance area visually separated from the other portions of the adult cabaret. (d) The manager shall be responsible for and shall assure that the actions of members of the public, the adult entertainers and all other employees shall comply with all requirements of this chapter. (4) Premises Specifications. (a) Performance Area. The performance area of the adult cabaret where adult entertainment as described in subsection (1)(a) of this section is provided shall be a stage or platform at least 18 inches in elevation above the level of the patron seating areas, and shall be separated by a distance of at least eight feet from all areas of the premises to which members of the public have access. A continuous railing at least three feet in height and 78

79 EXHIBIT A located at least eight feet from all points of the performance area shall separate the performance area and the patron seating areas. The stage and the entire interior portion of cubicles, rooms or stalls wherein adult entertainment is provided must be visible from the common areas of the premises and at least one manager s station. Visibility shall not be blocked or obstructed by doors, curtains, drapes or any other obstruction whatsoever. (b) Lighting. Sufficient lighting shall be provided and equally distributed throughout the public areas of the premises so that all objects are plainly visible at all times. A minimum lighting level of 30 lux horizontal, measured at 30 inches from the floor and on 10-foot centers is hereby established for all areas of the adult cabaret where members of the public are admitted. (c) Signs. A sign at least two feet by two feet, with letters at least one-inch high shall be conspicuously displayed in the public area(s) of the premises stating the following: THIS ADULT CABARET IS REGULATED BY THE CITY OF PUYALLUP. ENTERTAINERS ARE: A. NOT PERMITTED TO ENGAGE IN ANY TYPE OF SEXUAL CONDUCT B. NOT PERMITTED TO APPEAR SEMI-NUDE OR NUDE, EXCEPT ON STAGE C. NOT PERMITTED TO ACCEPT TIPS OR GRATUITIES IN ADVANCE OF THEIR PERFORMANCE D. NOT PERMITTED TO ACCEPT TIPS DIRECTLY FROM PATRONS WHILE PERFORMING UPON ANY STAGE AREA (d) Record Keeping Requirements. (i) All papers, records, and things required to be kept pursuant to this chapter shall be open to inspection by the clerk during the hours when the licensed premises are open for business, upon two days written notice. The purpose of such inspections shall be to determine whether the papers, records, and things meet the requirements of this chapter. (ii) Each adult entertainment business shall maintain and retain for a period of two years the name, address, and age of each person employed or otherwise retained or allowed to perform on the premises as an adult entertainer, including independent contractors and their employees, as an entertainer. This information shall be open to inspection by the clerk during hours of operation of the business upon 24 hours notice to the licensee. (e) Inspections. In order to insure compliance with this chapter all areas of licensed adult cabarets which are open to members of the public shall be open to inspection by city officers, agents and employees during the hours when the premises are open for business. The purpose of such inspections shall be to determine if the licensed premises are operated in accordance with the requirements of this chapter. It is hereby expressly declared that unannounced inspections are necessary to insure compliance with this chapter. (5) It is unlawful for any adult cabaret to be operated or otherwise open to the public between the hours of 2:00 a.m. and 10:00 a.m. 79

80 EXHIBIT A (6) This chapter shall not be construed to prohibit: (a) Plays, operas, musicals, or other dramatic works that are not obscene; (b) Classes, seminars and lectures which are held for serious scientific or educational purposes and which are not obscene; or (c) Exhibitions, performances, expressions or dances that are not obscene. These exemptions shall not apply to the sexual conduct described in PMC (14), or the sexual conduct described in RCW 7.48A.010(2)(b)(ii) and (iii). (7) Whether or not activity is obscene shall be judged by considerations of the following factors: (a) Whether the average person, applying contemporary community standards, would find that the activity taken as a whole appeals to a prurient interest in sex; and (b) Whether the activity depicts or describes in a patently offensive way, as measured against community standards, sexual conduct as described in RCW 7.48A.010(2)(b); and (c) Whether the activity taken as a whole lacks serious literary, artistic, political or scientific value License term Assignment Renewals. (1) There shall be no prorating of the license fees set out in PMC , and such licenses shall expire on the thirty-first day of December of each year, except that in the event that the original application is made subsequent to June 30th, then one-half of the annual fee may be accepted for the remainder of said year. Licenses issued under this chapter shall not be assignable. (2) Application for renewal of licenses issued hereunder shall be made to the clerk no later than 30 days prior to the expiration of adult cabaret licenses, and no later than 14 days prior to the expiration of adult cabaret manager and entertainer licenses. The renewal license shall be issued in the same manner and on payment of the same fees as for an original application under this chapter. There shall be assessed and collected by the clerk an additional charge, computed as a percentage of the license fee, on applications not made on or before said date, as follows: Days Past Due Percent of License Fee % % 61 and over 75% (3) The clerk shall renew a license upon receipt of complete application and fee unless the clerk is aware of facts that would disqualify the applicant from being issued the license for which he or she seeks renewal; and further provided, that the application complies with all provisions of this chapter as now enacted or as the same may hereafter be amended. 80

81 EXHIBIT A License denial, suspension and revocation Hearing. (1) Denial of License Application. (a) The clerk shall deny an original renewal license application if it is demonstrated by a preponderance of the evidence that one or more of the following findings is true: (i) The premises to be used for the adult cabaret are not in compliance with applicable laws and ordinances. (ii) An applicant is under 18 years of age. (iii) An applicant has failed to provide information required by this chapter or has falsely answered a question or request for information on the application form. (iv) An applicant has failed to comply with any provision or requirement of this chapter. (v) An application fee required by this chapter has not been paid. (b) Denial of an original or renewal license application is subject to appeal as set forth in PMC (2) Clerk s Action. The clerk may, upon the recommendation of the chief of police or designee and as provided in this section, deny, suspend or revoke any license issued under the provisions of this chapter at any time where the same was procured by fraud or false representation of fact; or for the violation of, or failure to comply with, the provisions of this chapter, or any act which constitutes a violation of Chapter 7.48A RCW, the Washington Moral Nuisance Statute, or any other similar local or state law by the licensee or by any of its servants, agents or employees when the licensee knew or should have known of the violations committed by its servants, agents or employees; or for the conviction of the licensee of any crime or offense involving prostitution, promoting prostitution, or transactions involving controlled substances (as that term is defined in Chapter RCW) committed on the premises, or the conviction of any of its servants, agents or employees of any crime or offense involving prostitution, promoting prostitution, or transactions involving controlled substances (as that term is defined in Chapter RCW) committed on the premises in which an adult cabaret is conducted when the licensee knew or should have known of the violations committed by servants, agents or employees of the licensee. (3) Revocation Suspension. (a) A license procured by fraud or misrepresentation shall be revoked. (b) Where other violations of this chapter or other applicable ordinances, statutes or regulations are found, the license shall be suspended for a period of 30 days upon the first such violation, 90 days upon the second violation within a subsequent 24-month period, and revoked for third and subsequent violations within a subsequent 24-month period, not including periods of suspension. (4) Notice. The clerk shall provide at least 10 days prior written notice to the licensee at the licensee s last known address as shown in the clerk s file. The notice of suspension or revocation shall state the reasons for the proposed suspension or revocation and that such suspension or revocation shall become effective within 30 days of the date of notice unless the licensee files an appeal in accordance with the provisions of PMC If the clerk elects to provide notice by mail, service of the notice shall be deemed complete upon the third day following the day upon which the notice of suspension of revocation is placed in the mail postage prepaid, 81

82 EXHIBIT A unless the third day falls on a Saturday, Sunday or legal holiday, in which event service shall be deemed complete on the first day other than a Saturday, Sunday or legal holiday, following the third day. (5) Appeal. The licensee may appeal the action of the clerk by filing a notice of appeal with the clerk within 10 days of notice of suspension or revocation. The filing of the appeal shall stay the action of the clerk, pending the decision of the hearing body. (6) Hearing Appeal. The hearing body shall conduct a hearing and render its decision as provided in PMC Any person aggrieved by the decision of the hearing body shall have the right to appeal the decision, within 10 days of the date of the decision, to Pierce County Superior Court by writ of certiorari, prohibition or mandamus as provided in PMC (2). (7) Imminent Threat. Where the Puyallup clerk, police, building official or fire marshal or their designees or the Pierce County Health Department find that any condition exists upon the premises of an adult cabaret which constitutes a threat of immediate serious injury or damage to persons or property, said official may immediately suspend any license issued under this chapter pending a hearing in accordance with PMC (3). The official shall issue notice setting forth the basis for the action and the facts that constitute a threat of immediate serious injury or damage to persons or property, and informing the licensee of the right to appeal the suspension to the hearing body under the same appeal provisions set forth in PMC (3); provided, however, that a suspension based on threat of immediate serious injury or damage shall not be stayed during the pendency of the appeal Liquor regulations. Any license issued pursuant to this chapter shall be subject to any rules or regulations of the Washington State Liquor Control Board relating to the sale of intoxicating liquor. In the event of a conflict between the provisions of this chapter and the applicable rules and regulations of the Washington State Liquor Control Board, the rules and regulations of the Washington State Liquor Control Board shall control Violation a misdemeanor. Any person violating any of the provisions of this chapter is guilty of a misdemeanor. Each violation shall be punishable, as fixed by court, by a fine of not more than $1,000 or by imprisonment for not more than 90 days, or by both such fine and imprisonment; and provided, no person shall be deemed guilty of any violation of this chapter if acting in an investigative capacity pursuant to the request or order of the police chief or prosecuting attorney or duly appointed agent thereof Nuisance declared. (1) Public Nuisance. Any adult cabaret operated, conducted, or maintained in violation of this chapter or any law of the city of Puyallup or the state of Washington shall be, and the same is, declared to by unlawful and a public nuisance. The city attorney may, in addition to or in lieu of any other remedies set forth in this chapter, commence an action to enjoin, remove or abate such nuisance in the manner provided by law and shall take such other steps and apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such public nuisance, and restrain and enjoin any person from operating, conducting or maintaining an adult cabaret contrary to the provisions of this chapter. (2) Moral Nuisance. Any adult cabaret operated, conducted or maintained contrary to the provisions of Chapter 7.48A RCW, Moral Nuisance, shall be, and the same is declared to be, unlawful and a public and moral nuisance and the city attorney may, in addition to or in lieu of any other remedies set forth herein, commence an 82

83 EXHIBIT A action or actions, to abate, remove and enjoin such public and moral nuisance, or impose a civil penalty, in the manner provided by Chapter 7.48A RCW Additional enforcement. The remedies found in this chapter are not exclusive, and the city may seek any other legal or equitable relief, including but not limited to enjoining any acts or practices which constitute or will constitute a violation of any business license ordinance or other regulations herein adopted Severability. If any portion of this chapter, or its application to any person or circumstances is held invalid, the validity of the chapter as a whole, or any portion thereof, and its application to other persons or circumstances shall not be affected Zoning and related restrictions. Zoning and related restrictions applying to all business regulated in this chapter are contained in Chapter 5.54 PMC. 83

84 EXHIBIT A Chapter 5.54 Adult Uses not shown No changes recommended 84

85 EXHIBIT A Chapter 5.60 Sale of Alcoholic Beverages not shown No changes recommended 85

86 EXHIBIT A Chapter 5.64 SOLICITORS Sections: Definitions Solicitor s license Required Certificate Organizational License fee Solicitor s license Application Investigation of applicants Issuance of license Expiration date Denial, revocation or suspension of license Suspension or revocation procedure Appeal Carrying of license required Prohibited practices Notice regulating soliciting Uninvited solicitors Prohibited Violation a nuisance Uninvited solicitors Departure from premises required Time restrictions Exemptions License fee No Soliciting signs Violation Penalty Definitions. Use of Words and Phrases. As used in this chapter, unless the context or subject matter clearly requires otherwise, the words or phrases defined in this section shall have the indicated meanings. (1) Residence means and includes every separate living unit occupied for residential purposes by one or more persons, contained within any type of building or structure. (2) Registered solicitor means and includes any person who has obtained a valid solicitor s license as provided in this chapter, which certificate is in the possession of the solicitor while engaged in soliciting. (3) Soliciting means and includes one or more of the following activities: (a) Seeking to obtain orders for, or the sale of, goods, wares, merchandise, foodstuffs, or services of any kind, character, or description, for any kind of consideration whatever; or (b) Seeking to obtain prospective customers for application or purchase of insurance of any type, kind or character; or (c) Seeking to obtain subscriptions to books, magazines, periodicals, newspapers, and every other type or kind of publications; or (d) Seeking to obtain gifts or contributions of money, clothing, or other valuable thing for the support or benefit of any charitable or nonprofit organization, association, or corporation. 86

87 EXHIBIT A Solicitor s license Required. Every person desiring to engage in soliciting, as defined in PMC , from persons in residences or businesses within the city is required to make written application for and receive a solicitor s license as provided in this chapter, and which is in addition to a general business license as may be required under Chapter 5.04 PMC Certificate Organizational. Recognizing that bona fide community-based organizations engage in annual fund raising with volunteer solicitors, the city clerk is authorized to grant an organizational certificate to an appropriate official of the organization, who shall comply with the application procedure and provide the city clerk with the names and addresses of the solicitors. The organizational certificate shall be limited in time, and in no event for more than 30 days in any calendar year. Each individual solicitor shall then be issued a photocopy facsimile of the organizational certificate, which shall contain the solicitor s name in prominent letters, and shall contain the inclusive dates of validity License fee. The license fee for a solicitor shall be $50.00 per year per person. A background investigation is required for each solicitor. The cost shall be separate from the solicitor s application fee, and as set forth in the fees schedule adopted by resolution by the city council. Licenses issued are not transferable Solicitor s license Application. (1) Applications for a solicitor s license shall be made to the city clerk upon forms provided by the city. The applicant shall attest to the truthfulness of the application, and shall complete the application in full, providing the following information: (a) Name, prior name(s) and aliases; address; present place of residence and the length of residence at such address; and business address if other than the present address; (b) Address or place of residence during the past two years if other than present address; (c) In the event the name or address of the applicant has changed within the last two years, each name and address used over the last two-year period; (d) Applicant s date of birth; (e) Name(s) and address(es) of any person, firm, or corporations whom the applicant is employed by or represents; and the length of time of such employment or representation; (f) A description of the item(s) being solicited and/or a description sufficient for identification of the subject matter of the soliciting in which the applicant will engage; (g) Period of time for which the license is applied; (h) Whether the applicant has ever been convicted of a violation of a felony under the laws of this state or any other state or federal law of the United States; (i) Signature of applicant; 87

88 EXHIBIT A (j) Social Security number of applicant; (k) Physical description of the applicant. (2) The applicant: (a) Shall complete an authorization to release information, form allowing the police department to conduct necessary background checks; (b) May be required to submit to fingerprinting or palm scanning by the police department, in connection with the application for the license; (c) Shall provide a copy of a valid driver s license or picture I.D. for identification purposes Investigation of applicants. (1) It shall be the duty of the chief of police to investigate each application made under PMC In his investigation, the chief of police shall determine: (a) The genuineness of all credentials presented by the principal applicant and/or the individual applicant; (b) If the principal applicant and/or the individual applicant has a criminal record; and (c) The truth of the facts set forth in the application. (2) The chief of police shall endeavor to complete such investigation within seven to 10 working days after receipt of the application. (3) No license shall be issued to any person who has been convicted of a felony under the laws of any state within the United States or federal law of the United States, within five years from the termination of any courtordered time served and including any probationary period ordered; nor to any person whose license issued under this chapter has previously been revoked. (4) The chief of police may deny, suspend or revoke a license if any applicant for a license or a registered solicitor is convicted of any of the following categories of crimes under the laws of any state within the United States or federal law of the United States: (a) Homicide; (b) Assault; (c) Domestic violence crimes; (d) Crimes of dishonesty; (e) Sex crimes; (f) Drug-related crimes; 88

89 EXHIBIT A (g) Crimes against children and/or vulnerable adults; (h) Burglary and/or trespass; or (i) Kidnapping and/or unlawful imprisonment Issuance of license Expiration date. If, after the completion of the investigation, the chief of police determines that the facts set forth in the application are true, then the chief may approve the application, and the city clerk shall issue the license. The license shall not be transferable. No license shall be issued until the conclusion of the police chief s investigation of the application. All licenses expire December 31st of the year in which issued Denial, revocation or suspension of license. In addition to the other penalties provided by law, any license issued under the provisions of this chapter may be denied, revoked or suspended at any time, where the same was: (1) Procured by fraud, false representation or material omission of fact, or for the violation of or failure to comply with any of the provisions of this chapter by the person holding such license; or (2) If the licensee violates any applicable city, state or federal law, or if the purpose for which the license was issued is being abused to the detriment of the public, or if such license is being used for a purpose different from that for which it was issued; (3) It is unlawful for any person whose application for a license has been denied or license has been revoked or suspended to continue in the business of solicitor or to keep the license issued to him/her in his/her possession and control, and the same shall immediately be surrendered to the city clerk, the chief of police or his/her designee; (4) Upon denial of a license, the city clerk shall give written notice of such action to the applicant, stating the basis for such action. A copy of this letter shall become part of the original application, and kept on file in the city clerk s office Suspension or revocation procedure Appeal. (1) Any license may be suspended or revoked by the city clerk, the chief of police or his/her designee for any violations of city code or state or federal law. (2) An appeal of a decision to deny, suspend, or revoke a license shall be filed with the city clerk in writing within 10 days of the revocation or denial of the license or application. Such appeal shall be heard by the city council Carrying of license required. The license required by this chapter and photo identification shall be carried at all times by the solicitor for whom it was issued when soliciting in the city. The license and photo identification shall be exhibited by the solicitor whenever and wherever he or she shall be requested to do so by any police officer, city official or person solicited Prohibited practices. 89

90 EXHIBIT A It shall be unlawful for any person, while engaged or attempting to engage in soliciting within the city, to: (1) Enter upon any other person s private property, home, residence, apartment complex or business that prominently displays a No Peddlers or No Solicitors sign, or any other similar sign that communicates the occupant s desire not to be contacted by solicitors. (2) Persist or continue in any solicitation or attempted solicitation of any particular member or members of the general public if such person or persons do not wish or desire any further solicitation efforts. (3) Solicit or sell merchandise upon the city street, sidewalk or public right-of-way or any other public property either on foot or from any cart, wagon, wheeled conveyance or other device. (4) Solicit or sell merchandise within 500 feet of a legally licensed temporary stand, temporary event, or special event Notice regulating soliciting. Every person desiring to secure the protection provided by the regulations pertaining to soliciting contained in this chapter shall comply with the directions contained in this section. (1) Notice of the determination by the occupant(s) of the refusal of an invitation to solicitors to a residence, business, or development shall be given in the manner following: (a) A sign posted in a conspicuous place, at, near or posted on the door, or upon any gated and fenced property, that reads no solicitors allowed. (b) In single-family or multifamily residential developments served by a readily identifiable entrance, notice may be given by posting at each entrance a sign of an appropriate size placed at a location which will give reasonable notice to any person entering the development that solicitors are not allowed, and containing language such as no solicitors allowed Uninvited solicitors Prohibited Violation a nuisance. It is unlawful and constitutes a nuisance for a person to go upon a premises and ring the doorbell upon or near a door, or create a sound in any other manner calculated to attract the attention of the occupant of such residence or business for the purpose of securing an audience with the occupant thereof and engage in soliciting as defined in PMC , in defiance of the notice exhibited at the residence, business, or development in accordance with the provisions of PMC Uninvited solicitors Departure from premises required. It shall be the duty of every solicitor upon going onto any premises or development in the city upon which a residence, as defined in this chapter, or a business is located to determine if the notice provided for in PMC exists, and to be governed by the statement contained on the notice by immediately and peacefully departing from the premises. A solicitor who has gained entrance to a residence, business, or development, whether invited or not, shall immediately and peacefully depart from the premises when requested to do so by the occupant Time restrictions. 90

91 EXHIBIT A No person shall engage in soliciting within the city, except between the hours of 9:00 a.m. and dusk, or one-half hour after sunset Exemptions License fee. This chapter shall not apply to the following groups: (1) Any person selling personal property at wholesale to dealers in such articles or commodities; or newspaper couriers; or persons who have been invited to call upon that other person for the purpose of displaying for possible purchase goods, literature or giving information about any article, thing, product or service. (2) Farmers, gardeners, or other persons who deliver or sell any agricultural, horticultural, or farm products which they have actually grown, harvested, or produced; provided, that this exemption does not apply to the sale of firewood. (3) This chapter shall not apply to casual sales of seasonal articles such as produce, holiday items, handmade gift articles, etc., or services such as lawn care, snow removal and other household jobs. (4) Nothing in PMC through shall be construed so as to require licensing of any person or persons engaged in the business of selling through the United States mail. (5) Charitable, religious or nonprofit organizations, or organizations that have received exempt status under 26 USC 501(c)(3), shall be exempt from all provisions of this chapter except PMC (6) Candidates for political office, campaign workers, members and representatives of political committees or political organizations campaigning on behalf of ballot issues, distributors of sample ballots and other political literature and persons soliciting signatures of registered voters on petitions to be submitted to any governmental agency shall be exempt from all provisions of this chapter No Soliciting signs. No soliciting shall occur at a residence, business, facility or other location with a posted No Soliciting sign, which is conspicuously visible at the premises Violation Penalty. Violation of any provision of this chapter by a person, firm, party, corporation, or other legal entity shall constitute a Class I civil infraction subject to the provisions of Chapter 1.02 PMC. A second violation of any provision of this chapter shall constitute a misdemeanor subject to the penalties as defined in PMC 9A (2). 91

92 EXHIBIT A Chapter 5.65 MOBILE VENDORS Sections: Definitions License Required Exemptions Limitation on activities permitted by mobile vendor license Mobile vendor license Application Investigation of applicants License fee Expiration of license Exhibition of license Transfer Health regulations Mobile vendor standards Mobile vendor insurance requirement Revocation of license Appeal Violation Penalty Definitions. Use of Words and Phrases. As used in this chapter, unless the context or subject matter clearly requires otherwise, the words or phrases defined in this section shall have the indicated meanings. (1) Concessionaire means a person, firm or corporation engaged in the sale of food or other goods or services in a city park or city property, including without limitation those who operate or maintain a concession stand, in accordance with a written agreement or franchise therefor as lawfully approved in writing by the city manager. (2) Food has its usual and ordinary meaning, and includes all items designed for human consumption, including but not limited to ice cream, candy, gum, popcorn, hotdogs, sandwiches, peanuts, soft drinks, coffee and dairy products. (3) Mobile vendor shall mean any business operator or vendor who conducts business from a motor vehicle or pedal cab upon public streets. (4) Motor vehicle in this chapter shall mean a motorized vehicle that is registered with the Washington State Department of Motor Vehicles and licensed by the Washington State Licensing Department. (5) Pedal cabs shall mean anyone offering taxi or transportation services to the public on any three-wheeled conveyance that is powered exclusively by the driver and does not involve use of any motor-driven components or power sources of a similar nature, other than as allowed by state law License Required. It is unlawful for a mobile vendor to engage in business within the city of Puyallup except when licensed as a mobile vendor or concession in compliance with the provisions of this chapter, and which is in addition to a 92

93 EXHIBIT A general business license that may be required under Chapter 5.04 PMC. A separate license shall be required for each concession location and for each vehicle or pedal cab Exemptions. The following activities, businesses, and/or persons, as such are commonly known, shall be exempt from coverage of this chapter, but this exemption shall not be construed to limit or restrict the application of other laws and regulations pertaining to such activities, businesses and/or persons: (1) Newspaper couriers; (2) Lemonade stands; (3) Stands used to sell or distribute flowers, fruit, vegetables, produce or plants grown on the property where the stand is located; (4) Delivery or distribution of food, goods or products ordered or purchased by customers from a source or point of sale other than a mobile vehicle operated for the purpose of soliciting customers while traveling or while located on city streets or property; (5) Delivery or distribution of food by or for any not-for-profit organization, governmental agency, or other charitable organization, including without limitation Meals on Wheels and the Food Bank; and (6) Concessionaires as defined in this chapter, except that concession agreements with the city shall include health, sanitation and insurance requirements generally conforming to those established for similar businesses and vendors covered by this chapter Limitation on activities permitted by mobile vendor license. Mobile vendors shall be limited to the business of selling food. They shall not: (1) Operate the motor vehicle in such a manner as to impede the normal usage of the arterial streets; (2) Stop on the traveled portion of the street or within 50 feet from a corner to dispense food products; (3) Stop in dangerous locations for dispensing food products, such as on streets with inadequate shoulders and restricted sight distance; (4) Be operated on any arterial street during the peak hours of traffic, generally between 4:00 p.m. and 6:30 p.m.; (5) The retail sale of any product from pedal cabs is prohibited Mobile vendor license Application. (1) A person, firm, or corporation desiring to secure a license as a mobile vendor shall make application to the city clerk. The applicant shall attest to the truthfulness of the information provided in the application and shall complete the entire application by providing, at the minimum, the following information: (a) Name, prior name(s) and aliases; address; present place of residence and the length of residence at such address; and business address if other than the present address; 93

94 EXHIBIT A (b) Address or place of residence during the past two years if other than present address; (c) In the event the name or address of the applicant has changed within the last two years, each name and address used over the last two-year period; (d) Applicant s date of birth; (e) Name(s) and address(es) of any person, firm, or corporation whom the applicant is employed by or represents; and the length of time of such employment or representation; (f) A description of the item(s) or services being sold and/or a description sufficient for identification of the subject matter of the business in which the applicant will engage; (g) Period of time for which the license is applied; (h) Whether the applicant has ever been convicted of a violation of a felony under the laws of this state or any other state or federal law of the United States; (i) Signature of applicant; (j) Social Security number of applicant; (k) Physical description of the applicant; and (l) A letter from the Tacoma-Pierce County health department, certifying that the motor vehicle vending business has complied with health department regulations, as required. (2) The applicant: (a) Shall complete an authorization to release information form allowing the police department to conduct necessary background checks; (b) May be required to submit to fingerprinting or palm scanning by the police department, in connection with the application for the license; and (c) Shall provide a copy of a valid driver s license or picture I.D. for identification purposes Investigation of applicants. (1) It shall be the duty of the chief of police to investigate each application made under PMC In his/her investigation, the chief of police shall determine: (a) The genuineness of all credentials presented by the principal applicant and/or the individual applicant; (b) If the principal applicant and/or the individual applicant has a criminal record; and (c) The truth of the facts set forth in the application. 94

95 EXHIBIT A (2) The chief of police shall endeavor to complete such investigation within seven to 10 working days after receipt of the application. (3) No license shall be issued to any person who has been convicted of a felony under the laws of any state within the United States or federal law of the United States, within five years from the termination of any courtordered time served and including any probationary period ordered; nor to any person whose license issued under this chapter has previously been revoked. (4) The chief of police has the authority to deny, suspend or revoke any license if an applicant for a mobile vendor license or a mobile vendor is convicted of any of the following categories of crimes under the laws of any state within the United States or federal law of the United States: (a) Homicide; (b) Assault; (c) Domestic violence crimes; (d) Crimes of dishonesty; (e) Sex crimes; (f) Drug-related crimes; (g) Crimes against children and/or vulnerable adults; (h) Burglary and/or trespass; or (i) Kidnapping and/or unlawful imprisonment License fee. The license fee for a mobile vendor, concession, or pedal cab shall be $50.00 per year per vehicle, location, or pedal cab Expiration of license. A license issued under this chapter shall expire December 31st each year Exhibition of license Transfer. A license issued under this chapter shall be posted conspicuously by the mobile vendor or concessionaire. Licenses issued under this chapter are not transferable Health regulations. All food vendors shall comply with all laws, rules and regulations regarding food handling, and all vehicles, equipment, and devices used for the handling, storage, transportation and/or sale of food shall comply with all laws, rules and regulations respecting such vehicles, equipment, and devices as may be established by the Tacoma-Pierce County health department Mobile vendor standards. 95

96 EXHIBIT A All mobile vendors licensed under this chapter shall conform to the following standards: (1) Geographical Restrictions. No mobile vendor shall sell or vend from his or her vehicle or conveyance: (a) Within 400 feet of a public or private school grounds during the hours of regular school session, classes, or school-related events in said public or private school, except when authorized by said school; or (b) Within 300 feet of the entrance to a business establishment which is open for business and is offering for sale the same or similar product as an item offered for sale by the mobile vendor; or (c) Within 300 feet of a restaurant, cafe, or eating establishment which is open for business; or (d) Within 300 feet of a public park of the city where a city-authorized concession stand is located during times other than during the course of a public celebration except as approved by the city manager or designate; or (e) Within 300 feet of city property where a city-authorized concession stand is located during the course of a public celebration when nonprofit organizations are permitted to engage in the sale of merchandise and food in such park; or (f) Within any one block for more than one hour in any four-hour period; except this shall not apply in those situations where the mobile vendor is serving organized and sanctioned community-sponsored ball games at public parks and schools provided there is no city-approved concession in the park or at the school. (2) No mobile vendor shall conduct business so as to violate any ordinances of the city, including those regulating traffic and rights-of-way, as now in effect or hereafter amended. (3) No mobile vendor shall obstruct or cause to be obstructed the passage of a sidewalk, street, avenue, alley or any other public place by causing people to congregate at or near the place where food is being sold or offered for sale. (4) No customer shall be served on the street side of the mobile unit. All service must be on the curb side when the mobile unit is on or abutting a public street. (5) All mobile vendors shall provide garbage receptacles for customer use. (6) No mobile vendor shall locate his or her vehicle or other conveyance in such a manner as to cause a traffic hazard. (7) At the conclusion of business activities at a given location the mobile vendor shall clean all the public way surrounding his or her vehicle of all debris, trash and litter generated by the vendor s business activities. (8) All mobile vendors preparing food by cooking, frying or other means shall be equipped with at least one 2A- 40-BC fire extinguisher. (9) All mobile vendors shall conclude daily business activities at sunset Mobile vendor insurance requirement. 96

97 EXHIBIT A No license shall be issued to a mobile vendor selling from a truck or other motor vehicle unless a certificate is furnished to the city showing that the vendor is carrying the following minimum amounts of insurance: (1) public liability insurance in an amount of not less than $500,000 for injuries, including those resulting in death, resulting from any one occurrence, and on account of any one accident; and (2) property damage insurance in an amount of not less than $25,000 for damages on account of any one accident or occurrence Revocation of license. (1) A license issued pursuant to this chapter may be revoked, in writing, by the city manager for any of the following reasons: (a) Any fraud, misrepresentation or false statement contained in the application for license; (b) Any fraud, misrepresentation or false statement made in connection with the selling of products; (c) Any violation of this chapter; (d) Conviction of the licensee of a felony or of a misdemeanor involving moral turpitude; or (e) Conducting the business licensed under this chapter in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace to the health, safety or general welfare of the public. (2) A concessionaire or mobile vendor whose license is revoked pursuant to this section must immediately cease all business operations within the city upon issuance of the notice of revocation Appeal. A person aggrieved by the denial of an application for a license, a license renewal, or by the revocation of a license as provided for in this chapter shall have the right to appeal such administrative decision to the hearing examiner as provided in Chapter 2.54 PMC Violation Penalty. Violation of any provision of this chapter by a person, firm, party, corporation, or other legal entity shall constitute a Class I civil infraction subject to the provisions of Chapter 1.02 PMC. A second violation of any provision of this chapter shall constitute a misdemeanor subject to the penalties in PMC 9A (2). 97

98 EXHIBIT A Chapter 5.68 Bingo, Raffles and Amusement Games not shown No changes recommended 98

99 EXHIBIT A Chapter 5.80 TOWING COMPANIES Sections: Definitions Licensing provisions When vehicle may be impounded Method of impounding Removal of disabled vehicle Defective vehicle Impounding Notice to impound Authority of contractor Notice to owner of impoundment Redemption of vehicle Payment of charges City not liable Records of impounded vehicles Abandoned vehicles Contract for towing and storage Contractor Bond and insurance Impounding not to prevent prosecution Adoption of rules and regulations Definitions. For the purposes of this chapter: (1) Contractor means the operator of the towing and storage service with whom the city has an existing and effective contract, pursuant to this chapter, for the towing and storage services necessary to the operation of this chapter. This term may include more than one individual, firm or corporation who have formed a joint venture or similar association to operate the towing and storage services provided for by this chapter. (2) Vehicle means any motor-driven conveyance used to transport persons and/or goods and, in addition, shall include the remains of any vehicle so long as identification can be made Licensing provisions. The city shall grant a towing license to a qualified applicant who has filed the application and information required by the director of finance and who has otherwise complied with this chapter upon the payment by the applicant of an annual license fee and the posting with the city of a good and sufficient bond which has been approved by the director of finance as to sufficiency and as to the form by the city attorney. The annual license fee shall be $ The towing license is in addition to a general business license that may be required under Chapter 5.04 PMC. The bond or other security satisfactory to the city manager shall be in the amount of $10,000, which shall be conditioned upon the performance by any licensee of the terms of the license and to the rules and regulations promulgated by the city manager, and further conditioned to hold the city harmless from any act or omission of said licensee while engaged as a towing operator as defined in this chapter When vehicle may be impounded. 99

100 EXHIBIT A Any vehicle parked, angle-parked, standing, or otherwise so used as to endanger any user or potential user of any street or way open to the public, or used in violation of the traffic code, is declared to be a nuisance, which may be summarily abated by the impounding and removal of the vehicle as provided in this chapter. Any vehicle which is stolen, or the retention of which is required by the police department for evidence or investigation, or which is occupied or unattended and in the judgment of any police officer in danger of being stripped or stolen, or any wrecked and unattended vehicle may be impounded and removed as hereinafter provided Method of impounding. No vehicle shall be impounded under provisions of this chapter except under the direction of an authorized police officer of the city as herein provided. Where such officer impounds an unattended vehicle because it is used in violation of the traffic code, he must first attach to such vehicle a traffic violation ticket. In all other cases where the police department has ordered a vehicle to be held for investigative, evidentiary, or other purposes of such department, the officer must attach to each impounded vehicle an impounding ticket prepared by him and signed by the contractor as witness thereto, indicating the reason for impounding, the location from which removed, and whether such location is private or public property, and the time of removal Removal of disabled vehicle. Whenever any vehicle becomes stalled, disabled, or unable to move under its own power on or in any public facility, such as streets, roads or highway, in the city, including tunnels, bridges, or approaches thereto or sections thereof, and such an occurrence has been deemed by the authority having police jurisdiction as being a menace or obstruction to the safety of the general public, such police authority shall have the power and is authorized to remove said disabled vehicle forthwith by either private or governmental equipment, and such vehicle removed may be impounded and held until towing charges have been paid by the owner thereof Defective vehicle Impounding. (1) Any vehicle operating upon the streets of this city and at any time found to be defective in equipment in such a manner that it may be considered unsafe is an unlawful vehicle and may be prevented from further operation until the equipment defect is corrected, and any peace officer may impound such vehicle until it has been placed in a condition satisfactory to vehicle inspection. The necessary cost of impounding an unlawful vehicle and any cost for the storage and keeping thereof shall be paid by the owner thereof. The impounding of a vehicle shall be in addition to any penalties for such unlawful operation. (2) The provisions of this section shall not be construed to prevent the operation of any such defective vehicle to a place for correction of equipment defects in the manner directed by any peace officer or representative of the State Commission on Equipment Notice to impound Authority of contractor. The police officer ordering impounding shall immediately notify the contractor for towing and impounding such vehicles of the location of the same. Such contractor shall thereupon be authorized to seize such vehicle and remove it to a garage or proper storage place which has been approved for such purposes by the city police department, the department of public works, and the fire department Notice to owner of impoundment. Upon receiving custody of a vehicle impounded pursuant to this chapter the contractor shall comply with the requirements of RCW relating to the notice of impoundment to the legal and registered owners of such vehicle. 100

101 EXHIBIT A Redemption of vehicle. (1) Vehicles impounded under this chapter shall be released by the contractor from the impounding garage to the owner upon: (a) Payment to the contractor of accrued towing and storage charges; (b) Furnishing of satisfactory evidence to such contractor of the claimant s identity as the registered owner of the impounded vehicle or, if the registered owner is in police custody, written permission for release to the claimant signed by the registered owner with the signature authenticated by an officer of the city police department; and (c) Execution of a receipt acknowledging delivery of the vehicle; provided, that no vehicle ordered by the chief of police to be held for police custody shall be released by the contractor without written permission of said chief. As a condition to providing such written permission for release, the chief of police may require that a claimant file with the director of finance a surety bond executed by a company authorized to do business in the state approved as to the amount and sufficiency of surety by the city manager, and as to form by the city attorney, conditioned to defend and save the city and the contractor harmless on account of the delivery of such vehicle to the claimant. (2) Receipts for towing and storage payments, approved as to form by the city manager and the chief of police, shall be issued by the contractor to each claimant. Signed copies of such receipts shall be available for the inspection of the chief of police Payment of charges City not liable. All towing and hauling and storage charges on each vehicle impounded pursuant to this chapter shall be paid by the owner thereof if said vehicle is redeemed. In no event shall the city be liable for any such charge, and the owner of each storage place approved as a vehicle pound pursuant to this chapter, by accepting appointment as such, shall be considered as so stipulating Records of impounded vehicles. (1) The police department and the contractor shall each keep a record of all vehicles impounded pursuant to this chapter, listing each by descriptive items such as manufacturer s trade name or make, state registration number, state license number, or such other descriptive matter as may identify said vehicle. Such records shall also indicate for each vehicle the date on which it was impounded, and the reason it was impounded. In addition to the above records, the contractor shall record with respect to each impounded vehicle the final disposition thereof, the date on which said vehicle was released, and the identity of the person to whom it was released. (2) The chief of police shall have the authority to inspect at any reasonable time all records kept by the contractors as required hereunder. Copies of all records maintained hereunder shall be available for the inspection of the city manager, members of the city council, and other appropriate officials of the city. The contractor shall include all information required by this section in a monthly report to be filed with the city clerk on or before the fifth day of each month Abandoned vehicles. When any vehicle impounded pursuant to the provisions of this chapter is an abandoned vehicle or an abandoned vehicle hulk, as those terms are defined in Sections 7 and 8 of Chapter 42, Laws of 1969, 1st Ex. Session (RCW and ), disposal of such vehicle shall be in the manner provided for in Sections 7 and 8 of Chapter 42, Laws of 1969, 1st Ex. Session (RCW and ). 101

102 EXHIBIT A Contract for towing and storage. (1) The city police department, department of public works, and fire department are authorized and directed to prepare contract specifications which shall be subject to the approval of the city council and city manager, and to enter into a contract in accordance with the specifications so approved for towing and storage service necessary to carry out the provisions of this chapter. The contract for both towing and storage of vehicles pursuant to this chapter shall be awarded to the same contractor. The specifications and contract shall contain such provisions as the police department, department of public works, and the fire department deem advisable which are not in conflict with this chapter. The police department shall file a written statement with the city finance department giving the name and address of the contractor for towing and storage of vehicles and the name and address or location of each storage place. (2) In order to be eligible for this contract, an applicant must receive a certification from an appropriate official of the city that such applicant is or will be able to supply the minimum equipment and storage facilities required by this chapter and the rules and regulations adopted hereunder. Under the terms of the contract into which the city shall enter pursuant to this chapter, the city shall be entitled to terminate said contract upon a material breach by the contractor of the terms and conditions thereof. The city may enter into a contract with more than one contractor at the same time Contractor Bond and insurance. Anyone awarded a contract for towing and storage under the provisions of this chapter shall, at the time of executing a contract therefor and before the same becomes effective, file with the city finance department a bond in the penal sum of $10,000 executed by the contractor as principal, and by a surety company authorized to do business as such in the state as surety, approved as to form by the city attorney and as to the sufficiency of surety the city manager, and conditioned that the contractor will faithfully perform all his duties under said contract and will indemnify the owners of impounded vehicles against any loss of or injury to their vehicles, or any article attached to or contained therein, while in his custody. The contractor shall also carry any insurance deemed necessary by the city finance department to protect the city against any and all liability for towing, impounding, storing, or leasing vehicles and to indemnify the owners thereof against loss or injury to the same or any article attached to or contained therein while in his custody Impounding not to prevent prosecution. The impounding of a vehicle under this chapter shall not prevent or preclude the institution and prosecution of criminal proceedings in the appropriate court of law, charging the violator with any violation of law on account of which such vehicle was impounded Adoption of rules and regulations. The city council is authorized to adopt by resolution such rules and regulations as are necessary to carry out the provisions of this chapter. 102

103 EXHIBIT A Chapter 5.90 Significant Impact Business not shown No changes recommended 103

104 EXHIBIT A Chapter 9.01 ALARM SYSTEMS Sections: Purpose Definitions License required to operate alarm systems business Fee Permit required before installation Alarm business license procedure and requirements Information required on alarm business license application Employee s registration Bond required Suspension and revocation of licenses Renewal of alarm business license Inspections Instruction as to the operation of the system User responsible for maintenance Service contracts Persons responding to activated alarms Notifying police of alarms Records Local or audible alarm system cutoff Operational defects to be remedied Renewal of alarm user s permit Records of number of accounts Automatic dialing and prerecorded telephone messages prohibited Maintenance of alarms Requirements Notification Improper activation of alarm False alarms Fees Penalty for violations Purpose. Since there are a growing number of alarm systems being sold and installed in the city of Puyallup, Washington, and its environs, causing the Puyallup police department to respond to alarm signals from such systems, and since there are a growing number of signals which are not the result of a burglary or robbery and recognizing the value of effective alarm systems in deterring crime and apprehending criminals, it is the purpose of this chapter to regulate the installation of alarm systems, to improve system effectiveness, and to reduce, insofar as possible, the number of false alarms causing police department response Definitions. As used in this chapter: (1) An alarm business means any person engaged in the business of installing, planning the installing, assisting in planning the installing, servicing, maintaining, repairing, or replacing alarm systems in the city of Puyallup, or its environs. (2) Alarm condition means an actual or attempted burglary or robbery. 104

105 EXHIBIT A (3) Alarm system means any mechanism, equipment, or device which is designed to detect an unauthorized entry into any building or onto any property, or to direct attention to a robbery in progress, and to signal the above occurrences either by a local or audible alarm or by a silent or remote alarm. Alarm systems shall not include alarms installed in motor vehicles which by their nature are mobile and are intended to prevent theft through the creation of a loud noise. Alarm devices which automatically dial telephone numbers and/or play prerecorded messages are prohibited as provided in PMC (4) An applicant shall be any person who has requested or is about to request licensing as an alarm system business operator, or any person who has requested or is about to request a user permit to install, operate, or maintain an alarm system at a particular location. (5) Employee is a person who is employed by an alarm business and who sells, installs, services, maintains, repairs, or replaces alarm systems in the city of Puyallup, or its environs. (6) False alarm means an alarm signal transmitted in the absence of an alarm condition which results in police department response to the location of the alarm. (7) Local or audible alarm means an alarm that when activated makes a loud noise at or near the protected area or floods the site with lights, or both. (8) Person includes any individual, partnership, corporation or association. (9) Silent or remote alarm means an alarm without an obvious local indication that an alarm has been activated, which transmits a signal to a remote monitoring station. (10) User means any person who installs, operates, or maintains, or engages another person to install, operate, or maintain an alarm system at a particular location which he owns or leases. (11) The environs of the city of Puyallup are those geographical areas and locations designated by the Puyallup city council by resolution, from time to time, in their sole discretion License required to operate alarm systems business Fee Permit required before installation. (1) It is unlawful for any person to own, manage, conduct or carry on the business of installing, planning the installing, assisting in planning the installing, servicing, maintaining, repairing, replacing, moving or removing, or to cause to be installed, serviced, maintained, repaired, replaced, moved, or removed in or on any building or other property within the city of Puyallup, or its environs, any alarm system, unless he obtains a valid license therefor in compliance with the provisions of this chapter. The fee for such license shall be $50.00 semiannually. The license is in addition to a general business license that may be required under Chapter 5.04 PMC. (2) It is unlawful for any alarm business to install or maintain a burglary or robbery alarm system at a particular location unless the owner or lessee of the property has a permit therefor as provided by subsection (1) of this section Alarm business license procedure and requirements. (1) Every initial applicant for an alarm business license shall file an application with the Puyallup city clerk in duplicate which shall be verified under oath. Upon receipt of the application, the city clerk shall refer it to the Puyallup police department for an investigation of the applicant s criminal record and other pertinent 105

106 EXHIBIT A information on the application. The applicant shall report to the Puyallup police department where his fingerprints and picture will be taken to facilitate the investigation. If the applicant is a partnership, association or corporation, each person whose name is required to appear on the application by PMC shall report to the police department for fingerprinting and photographing. Upon completion of the investigation, the police department shall refer the application back to the city clerk along with a report of its findings and a recommendation. Each person required to be investigated shall pay a $50.00 fee to the police department to cover the cost of investigation. (2) The city clerk shall, upon consideration of the application and the police department s recommendation, approve or deny the application. If the application is denied, the applicant may appeal such denial to the Puyallup city council in the same manner as provided under PMC for an appeal of a suspension, cancellation or revocation of such a license. (3) No alarm business license shall be issued to any person if the applicant or any of the persons whose names are required to appear on the application by PMC has been convicted of a crime involving theft, fraud, dishonesty, or receiving or possessing stolen property, or any sex offense. (4) A transfer of any license issued hereunder is expressly prohibited Information required on alarm business license application. Every application for an alarm business license shall contain the following: (1) The full name, age, residence, present and previous occupation of the applicant; (2) The address or a specific description of the location of the principal place of business of the applicant; (3) Whether the applicant has ever been convicted of a crime involving theft, fraud, dishonesty, or receiving or possessing stolen property, or any sex offense; (4) Such other information prescribed by the city clerk deemed necessary to properly evaluate the qualification of the applicant; (5) The information contained in subsections (1) through (4) shall be provided for all partners or members in the event the applicant is a partnership or association, and for all directors and officers in the event the applicant is a corporation Employee s registration. (1) It is unlawful for any alarm business to employ, and for any person to accept employment with an alarm business unless and until such employee has registered and obtained an employee registration card from the Puyallup police department and has paid a $15.00 investigation fee therefor. The issuance of such card shall necessitate that the person report to the Puyallup police department for fingerprinting and photographing. No person shall be issued a registration card who shall have been convicted of a crime involving theft, fraud, dishonesty, or receiving or possessing stolen property, or any sex offense. (2) Each employee registration card shall set forth the full name and address of the employee and the name of the alarm business by whom he is employed. Such registration card shall be valid only so long as the employee remains in the employ of the alarm business listed on the card. When an employee is terminated from employment with an alarm business, it is unlawful for the employee to fail to immediately surrender his 106

107 EXHIBIT A registration card to his employer, and it is unlawful for the employer to fail to immediately deliver or mail by registered or certified mail such surrendered registration card to the Puyallup police department. (3) If for some valid reason the employer is unable to obtain the employee s registration card upon termination, he shall by letter (either certified or registered) notify the Puyallup police department within 10 days of such termination Bond required. (1) No license shall be issued to conduct an alarm business until the applicant files a surety bond with the city clerk in the amount of $10,000 with surety acceptable to and approved by the city attorney, conditioned upon the applicant fully complying with all of the provisions of this chapter, all other laws of the city and any statutes of the state of Washington regulating and concerning alarm systems. The bond shall be taken in the name of the people of the city and any legal action on the bond may be brought by the city of Puyallup or any aggrieved person in the name of the city to recover damages suffered by reason of such illegal or wrongful act. (2) Every alarm business shall maintain such surety bond in full force and effect while licensed under this chapter, and upon failure to do so, its license shall be suspended until such bond is renewed Suspension and revocation of licenses. Alarm business licenses issued under the provisions of this chapter may be suspended, canceled, or revoked by the Puyallup city council after written notice of not less than 15 days, followed by a hearing before the city council. Part or all of the hearing may be conducted by the city council in executive session if security of the city, its personnel or its citizens would be served thereby. Suspension, cancellation or revocation shall be for the following reasons: (1) Any violation of this chapter; (2) Conviction of the licensee of any crime involving theft, fraud, dishonesty, or receiving or possessing stolen property, or any sex offense; (3) Conducting an alarm system business in an unlawful manner or in a manner detrimental to the public health, safety or welfare; (4) Failure of the alarm system business to provide its customers with alarm systems and/or services which meet the standards of performance required by this chapter. Evidence of such failure includes, but is not limited to, a showing that products provided by the alarm system business are generally inferior to those required under this chapter, resulting in numerous breakdowns and/or frequent false alarm caused by the failure of the equipment, or that the alarm system business has failed to service or maintain alarm systems as required by its service contracts; (5) Noncompliance with a notice to take corrective action as provided under PMC where the alarm business is responsible under a service contract Renewal of alarm business license. An alarm business license must be renewed semiannually and the $50.00 license fee must be paid with each renewal. The renewal of an alarm business license may be denied for the same reasons that an application for an original license may be denied. 107

108 EXHIBIT A Inspections. (1) The city building inspector, or his designee, is authorized to make inspections of alarm systems that have been installed within the city for the purpose of determining whether said systems are being used in conformity with the provisions of this chapter. (2) The inspector, or his designee, shall request the owner or lessee of the premises on which the alarm system is installed, or any other person who may lawfully give his consent, to admit the inspector, or his designee, onto the premises for the purpose of making an inspection of the alarm system. Upon denial of such request, the city building inspector, or his designee, may obtain a warrant from the city of Puyallup municipal court judge ordering the owner, lessee, or person in possession of the premises on which the alarm system is installed to admit the inspector, or his designee, to make an inspection of the alarm system upon a showing to the judge that reasonable grounds exist for the inspection of the alarm system. (3) Factors that may establish reasonable grounds under this chapter include, but are not limited to: (a) Complaints received from persons that an alarm system is emitting false alarms; (b) Police department personnel responded to an alarm signal where there was no evidence, other than the alarm signal, that an alarm condition actually existed; (c) Any warrant issued for an alarm system inspection shall identify the premises where the alarm system to be inspected is located and shall specify the reasons for which such inspection is made; (d) It shall be grounds for revocation, suspension or denial of a permit for any person to refuse to admit to property on which an alarm system is located any person who has the lawful right to enter onto such property and make an inspection of the system. (4) If the inspection reveals that the alarm is not safe and reliable or it is in violation of the electrical code, the Puyallup police department shall be informed and written notice to take corrective action shall be served on the user and the alarm business in the form and have the effect provided for in this chapter Instruction as to the operation of the system User responsible for maintenance Service contracts. (1)(a) Alarm businesses licensed under this chapter shall instruct the user orally and through written instructions on the proper operation of the system after it is installed. It shall be the responsibility of the user to see that all employees and persons regularly using the premises on which the alarm is installed are instructed in proper operating procedures to avoid false alarm signals. (b) No alarm business licensed under this chapter shall sell or refer to any alarm installed as a panic alarm or indicate that it can be used to summon the police for any reason. Any button installed in a burglar alarm system and intended to be depressed manually for the purpose of summoning the police shall be referred to as a silent by-pass alarm and instructions shall be given that it is not to be used unless there is an actual or attempted break-in or robbery, or unless a physical assault of the person appears imminent. (2) It shall be the responsibility of the user of an alarm system to cause the system to be maintained in reliable operating condition. (3) All licensed alarm businesses shall offer a service and maintenance contract to users owning or leasing the property on which such alarm business has installed an alarm system to insure emergency services and 108

109 EXHIBIT A preventive maintenance are performed on the system. Such emergency services shall be available on a 24-hour a day, seven-day a week basis. Such preventive maintenance shall insure that the backup power used in the system does not fail and cause an alarm to go off because of weak batteries, and/or temporary power failures from the primary voltage source Persons responding to activated alarms. (1) The Puyallup police department shall keep a record of the two persons who are designated in the permit application as provided in this chapter, and who can render service to the system when needed. Upon notification of an activated alarm, at least one such person designated by the user who may by agreement be an employee of the licensed alarm business maintaining and/or servicing the system, shall proceed immediately to the location of the activated alarm and render all necessary service and assistance to restore the alarm to normal condition or to reset the alarm. Responding personnel shall arrive on the scene within a reasonable time not to exceed 30 minutes after receiving notice of the alarm. (2) All silent or bypass alarms maintained by any licensed alarm business shall terminate in an office of such business. The alarm business, having reason to believe there is a valid alarm, will immediately notify the police department and dispatch his employee or employees to the alarm location. For the purpose of notifying the police department, the maximum equipment allowed shall be a direct line to the police department switchboard Notifying police of alarms Records. (1) When anyone notifies the police department or any employee thereof of an alarm from an alarm business, he or she shall state its business name and furnish the address of the activated alarm, the name and type of establishment from which the alarm is originated, the precise location of the alarm (if there is more than one floor or department), and the type of alarm, such as silent robbery, silent burglary, or ringer-type alarm. (2) Alarm businesses that request police response to an alarm signal shall maintain a record of all police calls stating the time, date, and location of the alarm. The records shall indicate the cause of the alarm and if the alarm is not caused by an attempted burglary or robbery, shall state corrective action taken to prevent the recurrence of the false alarm. This record shall be current and shall be made available for inspection by the Puyallup city clerk and the Puyallup police department at any time during normal business hours. (3) The Puyallup police department shall maintain a record of all police calls made in response to an activated alarm including the time, date and location of the alarm. These records shall also indicate whether or not an alarm condition existed Local or audible alarm system cutoff. Every alarm system which uses a local or audible alarm device to attract the attention of the public shall be equipped with an automatic 30-minute cutoff device or shall be silenced manually by the user or his representative within 30 minutes after activation Operational defects to be remedied. The sensory mechanisms used in connection with alarm systems shall be adjusted to suppress false alarms so that the device will not be activated by impulses due to transient pressure changes in water pipes, short flashes of light, wind noises such as the rattling or vibrating of doors or windows, vehicular noises adjacent to the installation, or other forces unrelated to genuine alarms Renewal of alarm user s permit. 109

110 EXHIBIT A Every alarm user s permit is subject to renewal every three years, at which time a renewal fee of $15.00 is due. The city clerk shall not approve the renewal of the user s permit unless the applicant meets all of the provisions of this chapter Records of number of accounts. Every alarm business in the city of Puyallup, or its environs, shall quarterly, during the first weeks of January, April, July and October, submit a written statement as to the total number of business accounts held by such company, including separate figures showing the total number of residential and commercial customers, to the Puyallup police department. This shall not include the name, address, or account number of any customer Automatic dialing and prerecorded telephone messages prohibited. No person shall use or operate, attempt to use or operate, or cause to be used or operated, or arrange, adjust, program or otherwise operate any device or combination of devices that will, upon activation, either mechanically, electronically or by other automatic means, automatically dial or initiate an intracity or intercity telephone call and deliver a prerecorded message to any telephone number assigned to any public safety department or service in the city of Puyallup Maintenance of alarms Requirements Notification. It is unlawful to have or maintain on any premises an audible-type burglary and/or robbery alarm unless there is on file with the Puyallup police department a notice of the telephone numbers at which the person or persons authorized to enter such premises and turn off such alarm can be reached at all times, and it is unlawful for any person to wilfully and intentionally fail to appear and turn off any such alarm within one hour after being notified by the police to do so Improper activation of alarm. It is unlawful for anyone to activate any robbery or burglary alarm for the purpose of summoning police, except in the event of an actual or attempted burglary or robbery, or for anyone notifying the police of an activated alarm and having knowledge that such activation was apparently caused by an electrical or other malfunction of the alarm system to fail at the same time to notify the police of such apparent malfunction False alarms. (1) Definition. For the purposes of this section, the term false alarm means the activation of a burglary and/or robbery alarm by other than a forced entry or attempted forced entry to the premises and at a time when no burglary or robbery is being committed or attempted on the premises. (2) Charges. In all occupancies, including existing occupancies required to have an alarm system by this chapter, charges will be made for false alarms in accordance with the resolutions adopted by the city council and filed with the city clerk Fees. In all occupancies, including existing occupancies required to have an alarm system by this chapter, charges will be made for false alarms in accordance with the resolutions adopted by the city council and filed with the city clerk Penalty for violations. Any person violating any of the provisions of this chapter or failing to comply with the requirements of this chapter is guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding $

111 Summary of Proposed Changes to Business Licensing Code Definitions. Added term Business Licensing Service Revised Year to allow for staggered licensing and renewal dates for compatibility with BLS system Persons subject to fees. Minor adjustments to capture every possibility of employee counts. Current code does not indicate the appropriate range for exactly 100 employees. Clarifies that Western Washington Fair Association license is by negotiation directly with the City Proposed change Removes the requirement for filing the business s most recent State Unemployment Insurance report with the city. The city has not actually been receiving these reports in recent years Exemptions from license requirements of 5.04 [New section] Segregates activities that are completely exempt from the license requirements under this chapter 5.04 from those that are only exempt from payment of fees under this chapter. The only ones listed in this section are governmental entities performing governmental functions and temporary stands already exempted under PMC Exemptions from payment of license fees of 5.04 [Renumbered ] Lists those businesses for which the city still requires a business license, but does not require a fee. The proposed change consolidates two listings of nonprofit organizations into one and clarifies as defined in The only other change removes those businesses moved to the proposed Comments requiring a business to obtain a City of Puyallup endorsement on their business license will subject the business to the state s renewal fee each year they renew, even though there is no city fee imposed. That renewal fee is currently $11.00 per year, for each business location. It appears that through this exemption Pawnbrokers and Second Hand Dealers licensed under are exempted from payment of any license fees, similar to nonprofit organizations. None is imposed on them in chapter Council may consider whether some businesses on this list should be exempt from local licensing requirements altogether, or whether there should be a minimum sales threshold to exempt those casual activities like babysitting, newspaper delivery, etc Requirements for issuance of license. Minor adjustments for clarification or to align with BLS requirements. 111

112 Renewal of License and Payment of fees. Proposed change automatically terminates a business that remains unrenewed for more than 120 days, and requires submission of new application to continue to do business in Puyallup. This would help keep the system current and encourage timely renewals. Otherwise changes here are only minor adjustments for clarification or to align with BLS requirements. Note : maximum handling fee payable to BLS is currently $19 for new applications, and $11 for renewals, the fee imposed by the state is one flat fee for each business location Failure to make application. Proposed change eliminates this section as redundant to and unused in recent years Application for license Approval or denial Appeal. Minor adjustment to clarify and recognize that the hearing examiner for appeals is appointed pursuant to PMC 2.54 but otherwise those provisions are inapplicable to these types of hearings Suspension or revocation Appeal. Minor adjustment to clarify and recognize that the hearing examiner for appeals is appointed pursuant to PMC 2.54 but otherwise those provisions are inapplicable to these types of hearings Mailing of notices. Minor adjustments for clarification or to align with BLS requirements License fee additional to others. Comment: No change here, but this intent is restated in sections dealing with other special licenses from 5.48 PMC and beyond with proposed language added for clarification Assignment of licenses. This section is revised to align with BLS requirements. It would now require a new business license in the event of a change of ownership or a change in the business structure. Previously the city allowed transfer of a license for the unexpired term of the original license at a reduced rate, in some cases Penalties Violations. Proposed revision applies a penalty of $250 only to businesses failing to obtain a Puyallup license before operating the business. The proposed revision eliminates late renewal penalties of $250 or $500 because the BLS will automatically impose a penalty up to $150 for late renewals. Further, if retained, these additional city penalties would be applied and administered by the City, outside of the BLS [Cabaret] License Required [Adult Cabarets and Adult Entertainment] License required Solicitor s license Required [Mobile Vendors] License Required [Towing Companies] Licensing provisions License required to operate alarm systems business Fee etc. In all of these sections proposed change adds and which is in addition to a general business license as may be required under Chapter 5.04 PMC; 112

113 City Council Agenda Item Report Submitted by: Joe Beck Submitting Department: Legal Meeting Date: 2/13/2018 Subject: Second Reading of an ordinance granting a non-exclusive Franchise to Level 3 Communications, LLC Presenter: Joseph Beck, City Attorney Recommendation: Conduct second reading of an ordinance that grants a non-exclusive franchise to Level 3 Communications, LLC for the right to install, operate, and maintain a telecommunications network of fiber optic lines and facilities in City right of way. Background: Generally, in order for a telecommunications company to use a city's right of way to install telecommunications lines and related facilities, it must obtain a franchise or master permit from the relevant jurisdiction. Such franchises or master permits contain provisions which address construction, maintenance, emergency work, location of facilities, relocation of facilities, undergrounding, insurance, indemnification and additional requirements governing the franchisee s usage of the City s rights of way. Level 3 Communications, LLC currently operates installed fiber optic lines and related facilities in City right of way which both serve one in-city location as well as operate as a passthrough for service outside of the City limits. Level 3 Communications, LLC recently was bought by CenturyLink though remains as an independent subsidiary in name and function. This Franchise allows Level 3 Communications, LLC to continue its current operations within the City s rights-of way for an initial period of 10 years. There was a prior franchise agreement between the City and Level 3 that expired on September 23, See Ordinance No This Franchise does not allow Level 3 to offer cable services or personal wireless services without obtaining a new franchise or an amendment to this franchise. Level 3 Communications, LLC currently pays taxes to the City related to the provision of telecommunications services to the single business location within city limits. Further, Level 3 Communications, LLC is obligated to pay actual costs associated with the negotiation of this franchise. Level 3 paid an upfront deposit to cover those actual costs. Council Direction: City staff recommends that Council conduct second reading of the ordinance and approve as submitted. The City can approve or deny a request for a franchise or master permit. If the City denies the request for a master permit, the denial must be supported by substantial evidence contained in the City's written record, unless the applicant is not an actual service 113

114 provider (i.e., if it does not provide telecommunications services to the general public). Alternatively, the City may obtain further information before deciding whether to grant or deny any franchise request. Fiscal Impacts: There is no detrimental fiscal impact associated with approval of this Franchise. ATTACHMENTS Franchise Agreement 114

115 ORDINANCE NO. AN ORDINANCE OF THE CITY OF PUYALLUP, WASHINGTON, GRANTING TO LEVEL 3 COMMUNICATIONS, LLC AND ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AUTHORITY AND NONEXCLUSIVE FRANCHISE FOR TEN YEARS, TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A TELECOMMUNICATIONS NETWORK, IN, ACROSS, OVER, ALONG, UNDER, THROUGH AND BELOW CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF PUYALLUP, WASHINGTON. WHEREAS, Level 3 Communications, LLC (the Franchisee ) has requested that the City Council grant a nonexclusive franchise (this Franchise ), and WHEREAS, Franchisee is the successor in interest to Williams Communications, Inc. which was granted a franchise pursuant to Ordinance No and effective on September 23, 2000, and WHEREAS, the City Council has the authority to grant Franchises for the use of its streets and other public properties pursuant to RCW 35A , NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PUYALLUP, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1 Franchise Granted. Section 1.1 Pursuant to RCW 35A , the City of Puyallup, a Washington municipal corporation (hereinafter the City ), hereby grants to Franchisee, its affiliates, heirs, successors, legal representatives and assigns, subject to the terms and conditions hereinafter set forth, a Franchise for a period of ten (10) years, beginning on the effective date of this ordinance, set forth in Section 40 herein. 115 {ERZ DOC;13/ / } 1

116 Section 1.2 This Franchise ordinance grants Franchisee the right, privilege, and authority to construct, operate, maintain, replace, acquire, sell, lease and use all necessary Facilities for a telecommunications network, in, under, on, across, over, through, along or below the public Rights-of-Ways located in the City of Puyallup, as approved pursuant to City permits issued pursuant to this Franchise. Public Rights-of-Way means the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, lane, public way, drive, circle, pathways, spaces, or other public right of way which, under City ordinances or applicable laws, the City has authority to grant franchises, licenses, or leases for use thereof, or has regulatory authority thereover and only to the extent such Rights-of- Way are opened. Rights-of-Way for the purpose of this Franchise do not include buildings, other City-owned physical facilities, parks, poles, conduits, fixtures, real property or property rights owned by the City not reserved for transportation purposes, or similar facilities or property owned by or leased to the City, including, by way of example and not limitation, structures in the Rights-of-Way such as utility poles, light poles and bridges. Facilities as used in this Franchise means one or more elements of Franchisee s telecommunications network, with all necessary cables, wires, conduits, ducts, pedestals, antennas, electronics, and other necessary appurtenances; provided that new utility poles for overhead wires or cabling are specifically excluded unless otherwise specifically approved by the City. Equipment enclosures with air conditioning or other noise generating equipment are also excluded from Facilities, to the extent such equipment is located in zoned residential areas of the City. For the purposes of this Franchise the term Facilities excludes microcell facilities, minor facilities, small cell facilities, all as defined by RCW , and macrocell facilities, including towers and 116 {ERZ DOC;13/ / } 2

117 new base stations and other similar facilities used for the provision of personal wireless services as defined by RCW (collectively Personal Wireless Services ). Section 1.3 The prior Franchise between the City and Williams Communications, Inc., as adopted by Ordinance Number 2664 (the Prior Franchise ) is hereby superseded and replaced by this Franchise as of the Effective Date of this Franchise, and this Franchise and all exhibits attached hereto shall constitute the entire Franchise between the parties. The grant of this Franchise shall have no effect on the requirements of the Prior Franchise to indemnify or insure the City against acts and omissions occurring during the period that the Prior Franchise was in effect and during any period in which Franchisee s Facilities were in the Rights-of-Ways. Section 2 Authority Limited to Occupation of Public Rights-of-Way. Section 2.1 The authority granted herein is a limited authorization to occupy and use the Rights-of-Way throughout the City (the Franchise Area ). Nothing contained herein shall be construed to grant or convey any right, title, or interest in the Rights-of-Way of the City to the Franchisee other than for the purpose of providing telecommunications services. Franchisee hereby represents that it expects to provide the following services: Services include but are not limited to Dark Fiber, E911, and internet access (the Services ). No right to install any facility, infrastructure, wires, lines, cables, or other equipment, on any City property other than a Rightof-Way, or upon private property without the owner s consent, or upon any City, public or privately owned utility poles or conduits is granted herein. Nothing contained within this Franchise shall be construed to grant or convey any right, title, or interest in the Rights-of-Way of the City to Franchisee other than for the purpose of providing the Services, nor to subordinate the primary use of the Right-of-Way as a public thoroughfare. If Franchisee desires to expand the Services provided within the City, it shall provide written notification of the addition of such 117 {ERZ DOC;13/ / } 3

118 services prior to the addition of the service; provided, however, that Franchisee may not offer Cable Services as defined in 47 U.S.C. 522(6) or Personal Wireless Services, without obtaining a new franchise or an amendment to this Franchise approved by the City Council. Section 2.2 Franchisee shall have the right, without prior City approval, to offer or provide capacity or bandwidth to its customers consistent with this Franchise provided: (a) Franchisee at all times retains exclusive control over its telecommunications system, Facilities and Services and remains responsible for constructing, installing, and maintaining its Facilities pursuant to the terms and conditions of this Franchise; (b) Franchisee may not grant rights to any customer or lessee that are greater than any rights Franchisee has pursuant to this Franchise; (c) Such customer or lessee shall not be construed to be a third-party beneficiary under this Franchise; and (d) No such customer or lessee may use the telecommunications system or Services for any purpose not authorized by this Franchise. Section 3 Non-Exclusive Franchise Grant. This Franchise is granted upon the express condition that it shall not in any manner prevent the City from granting other or further Franchises in, along, over, through, under, below, or across any said Rights-of-Way. Such Franchise shall in no way prevent or prohibit the City from using any of said roads, streets, or other public properties or affect its jurisdiction over them or any part of them, and the City shall retain power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, vacation, dedication of same as the City may deem fit, including the dedication, establishment, maintenance, and improvement of all new Rights-of-Way, thoroughfares and other public properties of every type and description. 118 {ERZ DOC;13/ / } 4

119 Section 4 Location of Telecommunications Network Facilities. Section 4.1 Franchisee is maintaining a telecommunications network, consisting of Facilities within the City. Franchisee may locate its Facilities anywhere within the Franchise Area consistent with the City s Public Works Engineering and Construction Standards and subject to the City s applicable permit requirements. The City reserves the right to prescribe the location of Franchisee s Facilities within the Franchise Area and the time and manner of Franchisee s activities through the permitting process. Franchisee shall not be required to amend this Franchise to construct or acquire Facilities within the Franchise Area, provided that Franchisee does not expand its Services beyond those described in Section 2. Section 4.2 To the extent that any Rights-of-Way within the Franchise Area are part of the state highway system ( State Highways ) and are governed by the provisions of Chapter RCW and applicable Washington State Department of Transportation ( WSDOT ) regulations, Franchisee shall comply fully with said requirements in addition to local ordinances and other applicable regulations. Without limitation of the foregoing, Franchisee specifically agrees that: (a) any pavement trenching and restoration performed by Franchisee within State Highways shall meet or exceed applicable WSDOT requirements; (b) any portion of a State Highway damaged or injured by Franchisee shall be restored, repaired and/or replaced by Franchisee to a condition that meets or exceeds applicable WSDOT requirements; and (c) without prejudice to any right or privilege of the City, WSDOT is authorized to enforce in an action brought in the name of the State of Washington any condition of this Franchise with respect to any portion of a State Highway. 119 {ERZ DOC;13/ / } 5

120 Section 5 Relocation of Telecommunications Network Facilities. Section 5.1 Franchisee agrees and covenants to protect, support, temporarily disconnect, relocate, or remove from any Rights-of-Way any of its Facilities when reasonably required by the City by reason of traffic conditions or public safety, dedications of new Rights-of-Way and the establishment and improvement thereof, widening and improvement of existing Rights-of- Way, street vacations, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity or as otherwise necessary for the operations of the City or other governmental entity, provided that Franchisee shall in all such cases have the privilege to temporarily bypass in the authorized portion of the same Rights-of-Way upon approval by the City, which approval shall not unreasonably be withheld or delayed, any Facilities required to be temporarily disconnected, relocated or removed. Except as otherwise provided by law, the costs and expenses associated with relocations ordered pursuant to this Section 5.1 shall be borne by Franchisee. Nothing contained within this Franchise shall limit Franchisee s ability to seek reimbursement for relocation costs when permitted by RCW Section 5.2 Upon request of the City and in order to facilitate the design of City street and Right-of-Way improvements, Franchisee agrees, at its sole cost and expense, to locate, and if reasonably determined necessary by the City, to excavate and expose its Facilities for inspection so that the Facilities location may be taken into account in the improvement design. The decision as to whether any Facilities need to be relocated in order to accommodate the City s improvements shall be made by the City upon review of the location and construction of Franchisee s Facilities. The City shall provide Franchisee at least fourteen (14) days written notice prior to any request for excavation or exposure of Facilities. 120 {ERZ DOC;13/ / } 6

121 Section 5.3 If the City determines that the project necessitates the relocation of Franchisee s existing Facilities, the City shall: (a) At least forty five (45) days prior to commencing the project, provide Franchisee with written notice requiring such relocation; provided, however, that in the event of an emergency situation, defined for purposes of this Franchise as a condition posing an imminent threat to property, life, health, or safety of any person or entity, the City shall give Franchisee written notice as soon as practicable; and (b) At least forty five (45) days prior to commencing the project, provide Franchisee with copies of pertinent portions of the plans and specifications for the improvement project and a proposed location for Franchisee s Facilities so that Franchisee may relocate its Facilities in other City Rights-of-Way in order to accommodate such improvement project; and (c) After receipt of such notice and such plans and specifications, Franchisee shall complete relocation of its Facilities at least ten (10) days prior to commencement of the City s project at no charge or expense to the City, except as otherwise provided by law. Relocation shall be accomplished in such a manner as to accommodate the City s project. Section 5.4 Franchisee may, after receipt of written notice requesting a relocation of its Facilities, submit to the City written alternatives to such relocation. Such alternatives must be submitted to the City at least thirty (30) days prior to commencement of the project. The City shall evaluate the alternatives and advise Franchisee in writing if one or more of the alternatives are suitable to accommodate the work that would otherwise necessitate relocation of the Facilities. If so requested by the City, Franchisee shall submit at its sole cost and expense additional information to assist the City in making such evaluation. The City shall give each alternative proposed by Franchisee full and fair consideration. 121 {ERZ DOC;13/ / } 7

122 Section 5.5 In the event the City ultimately determines that there is no other reasonable or feasible alternative, Franchisee shall relocate its Facilities as otherwise provided in this Section 5. Further, upon a notification of a delay due to Franchisee, Franchisee agrees to work cooperatively with the City, other franchisees and utilities, and the City s third party contractor to resolve such issues. Section 5.6 If Franchisee breaches its obligations under Section 5.1 with respect to relocating its Facilities within the Franchise Area, and to the extent such breach causes a delay in the work being undertaken by the City s third party contractor(s) that results in a claim by the third party contractor(s) for costs, expenses and/or damages that are directly caused by such delay and are legally required to be paid by the City (each, a Contractor Delay Claim ), the City may at its sole option: (a) tender the Contractor Delay Claim to Franchisee for defense and indemnification in accordance with Section 5.7 and Section 16; or (b) require that Franchisee reimburse the City for any such costs, expenses, and/or damages that are legally required to be paid by the City to its third party contractor(s) as a direct result of the Contractor Delay Claim; provided that, if the City requires reimbursement by Franchisee under this Section 5.6(b), the City shall first give Franchisee written notice of the Contractor Delay Claim and give Franchisee the opportunity to work with the third party contractor(s) to resolve the Contractor Delay Claim for a period of not less than sixty (60) days prior to the City's payment of the Contractor Delay Claim. Section 5.7 Franchisee will indemnify, hold harmless, and pay the costs of defending the City, in accordance with the provisions of Section 16, against any and all claims, suits, actions, damages, or liabilities for delays on City construction projects caused by or arising out of the 122 {ERZ DOC;13/ / } 8

123 failure of Franchisee to remove or relocate its Facilities in a timely manner; provided, that Franchisee shall not be responsible for damages due to delays caused by circumstances beyond the control of Franchisee or the gross negligence, willful misconduct, or unreasonable delay of the City or any unrelated third party. Section 5.8 The provisions of this Section 5 shall in no manner preclude or restrict Franchisee from making any arrangements it may deem appropriate when responding to a request for relocation of its Facilities by any person or entity other than the City, where the facilities to be constructed by said person or entity are not or will not become City-owned, operated, or maintained facilities, provided that such arrangements do not unduly delay a City construction project. Section 5.9 Whenever any person shall have obtained permission from the City to use any Right-of-Way for the purpose of moving any building, Franchisee, upon thirty (30) days written notice from the City, shall raise, remove, or relocate to another part of the Right-of-Way, at the expense of the person desiring to move the building, any of Franchisee s Facilities that may obstruct the removal of such building. Section 5.10 If Franchisee fails, neglects, or refuses to remove or relocate its Facilities as directed by the City following the procedures outlined in Section 5.1 through Section 5.4 the City may perform such work or cause it to be done, and the City s costs shall be paid by Franchisee pursuant to Section 14.3 and Section Section 5.11 The provisions of this Section 5 shall survive the expiration or termination of this Franchise during such time as Franchisee continues to have Facilities in the Rights-of- Way. 123 {ERZ DOC;13/ / } 9

124 Section 6 Undergrounding of Facilities. Section 6.1 Except as specifically authorized by permit of the City, Franchisee shall not be permitted to erect poles or to run or suspend wires, cables or other facilities thereon, but shall lay such wires, cables or other facilities underground in the manner required by the City. Franchisee acknowledges and agrees that if the City does not require the undergrounding of its Facilities at the time of permit application, the City may, at any time in the future, require the conversion of Franchisee s aerial facilities to underground installation at Franchisee s expense. Unless otherwise permitted by the City, Franchisee shall underground its Facilities in all new developments and subdivisions, and any development or subdivision where utilities, other than electrical utilities, are currently underground. Section 6.2 Whenever the City may require the undergrounding of any aerial utilities (other than electrical utilities and Personal Wireless Services facilities), in any area of the City, Franchisee shall underground its aerial facilities in the manner specified by the City, concurrently with and in the area of the other affected utilities. The location of any such relocated and underground utilities shall be approved by the City. Where other utilities are present and involved in the undergrounding project, Franchisee shall only be required to pay its fair share of common costs borne by all utilities, in addition to the costs specifically attributable to the undergrounding of Franchisee s own Facilities. Common costs shall include necessary costs not specifically attributable to the undergrounding of any particular facility, such as costs for common trenching and utility vaults. Fair share shall be determined for a project on the basis of the number and size of Franchisee s Facilities being undergrounded in comparison to the total number and size of all other utility facilities being undergrounded. 124 {ERZ DOC;13/ / } 10

125 Section 6.3 To the extent Franchisee is providing Services to Personal Wireless Services facilities, Franchisee shall adhere to the design standards for such personal wireless services facilities, and shall underground its Facilities and/or place its Facilities within the pole as may be required by such design standards. For the purposes of clarity, this Section 6.3 does not require undergrounding or interior placement of Facilities within the pole to the extent that the Personal Wireless Services facilities are located on utility poles that have pre-existing aerial telecommunications facilities and provided such construction of Franchisee s Facilities continue to comply with Section 6.1 or Section 6.2. Section 6.4 Franchisee shall not remove any underground cable or conduit that requires trenching or other opening of the Rights-of-Way along the extension of cable to be removed, except as provided in this Section 6.4. Franchisee may remove any underground cable and other related facilities from the Right-of-Way that has been installed in such a manner that it can be removed without trenching or other opening of the Right-of-Way along the extension of cable to be removed, or if otherwise permitted by the City. Franchisee may remove any underground cable from the Rights-of-Way where reasonably necessary to replace, upgrade, or enhance its Facilities, or pursuant to Section 5. When the City determines, in the City s sole discretion, that Franchisee s underground Facilities must be removed in order to eliminate or prevent a hazardous condition, Franchisee shall remove the cable, conduit or other related facilities at Franchisee s sole cost and expense. Franchisee must apply and receive a permit, pursuant to Section 8.2, prior to any such removal of underground cable or conduit from the Right-of-Way and must provide as-built plans and maps pursuant to Section {ERZ DOC;13/ / } 11

126 Section 6.5 The provisions of this Section 6 shall survive the expiration, revocation, or termination of this Franchise. Nothing in this Section 6 shall be construed as requiring the City to pay any costs of undergrounding any of the Franchisee s Facilities. Section 7 Maps and Records. Section 7.1 After underground construction is complete, Franchisee shall provide the City with accurate copies of as-built plans and maps stamped and signed by a professional land surveyor or engineer in a form and content acceptable to the City Engineer or his/her designee. This requirement applies only to new Facilities constructed following the date of the Franchise. For any work performed in the right-of-way on existing Facilities, following such work, Franchisee shall submit construction drawings stamped as constructed. Following any aerial construction, Franchisee shall provide the City with accurate copies of as-built plans and maps prepared by Franchisee s design and installation contractors. These plans and maps shall be provided at no cost to the City, and shall include hard copies and digital files in Autocad or other industry standard readable formats that are acceptable to the City and delivered electronically. Drawings will be based on State Plane Coordinates per City Engineering and Construction Standards. Further, Franchisee shall provide such maps within forty-five (45) days following a request from the City. Franchisee shall warrant the accuracy of all plans, maps and as-builts provided to the City. Section 7.2 Within thirty (30) days of a written request from the City Engineer, the Franchisee shall furnish the City with information sufficient to demonstrate: 1) that the Franchisee has complied with all applicable requirements of this Franchise; and 2) that all taxes, including but not limited to sales, utility and/or telecommunications taxes, due the City in 126 {ERZ DOC;13/ / } 12

127 connection with the Franchisee s services and Facilities provided by the Franchisee have been properly collected and paid by the Franchisee. Section 7.3 All books, records, maps, and other documents maintained by Franchisee with respect to its Facilities within the Rights-of-Way shall be made available for inspection by the City at reasonable times and intervals; provided, however, that nothing in this Section 7.3 shall be construed to require Franchisee to violate state or federal law regarding customer privacy, nor shall this Section 7.3 be construed to require Franchisee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. Unless otherwise prohibited by state or federal law, nothing in this Section 7.3 shall be construed as permission to withhold relevant customer data from the City that the City requests in conjunction with a tax audit or review; provided, however, Franchisee may redact identifying information such as names, street addresses (excluding City and zip code), Social Security Numbers, or Employer Identification Numbers related to any confidentiality agreements Franchisee has with third parties. Section 7.4 Franchisee shall not be required to disclose information that it reasonably deems to be proprietary or confidential in nature; provided, however, Franchisee shall disclose such information to comply with a utility tax audit, in the event the City is permitted to charge fees as further described in Section 15.1, or as otherwise required in this Franchise. Franchisee shall be responsible for clearly and conspicuously identifying the work as confidential or proprietary, and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under State or federal law. In the event that the City receives a public records request under Chapter RCW or similar law for the disclosure of information Franchisee has designated as confidential, trade secret, or proprietary, the City 127 {ERZ DOC;13/ / } 13

128 shall promptly provide written notice of such disclosure so that Franchisee can take appropriate steps to protect its interests. Nothing in this Section 7.4 prohibits the City from complying with Chapter RCW or any other applicable law or court order requiring the release of public records, and the City shall not be liable to Franchisee for compliance with any law or court order requiring the release of public records. The City shall comply with any injunction or court order obtained by Franchisee that prohibits the disclosure of any such confidential records; however, in the event a higher court overturns such injunction or court order and such higher court action is or has become final and non-appealable, Franchisee shall reimburse the City for any fines or penalties imposed for failure to disclose such records as required hereunder within sixty (60) days of a request from the City. Section 7.5 On an annual basis, upon thirty (30) days prior written notice, the City shall have the right to conduct an independent audit of Franchisee's records reasonably related to the administration or enforcement of this Franchise and the collection of utility taxes, in accordance with GAAP. If the audit shows that tax payments have been underpaid by three percent (3%) or more, Franchisee shall pay the total cost of the audit. Section 8 Work in the Rights-of-Way. Section 8.1 During any period of relocation, construction or maintenance, all work performed by Franchisee or its contractors shall be accomplished in a safe and workmanlike manner, so to minimize interference with the free passage of traffic and the free use of adjoining property, whether public or private. Franchisee shall at all times post and maintain proper barricades, flags, flaggers, lights, flares and other measures as required for the safety of all members of the general public and comply with all applicable safety regulations during such period of construction as required by the ordinances of the City or the laws of the State of 128 {ERZ DOC;13/ / } 14

129 Washington, including RCW for the construction of trench safety systems. The provisions of this Section 8 shall survive the expiration or termination of this Franchise ordinance. Section 8.2 Whenever Franchisee shall commence work in any public Rights-of-Way for the purpose of excavation, installation, construction, repair, maintenance, or relocation of its Facilities, it shall apply to the City for a permit to do so and, in addition to receiving the permit, shall give the City at least ten (10) working days prior notice (except in the case of an emergency) of its intent to commence work in the Rights-of-Way. During the progress of the work, the Franchisee shall not unnecessarily obstruct the passage or proper use of the Rights-of- Way, and all work by the Franchisee in the area shall be performed in accordance with applicable City Public Works Engineering and Construction Standards and warranted for a period of two (2) years. In no case shall any work commence within any Rights-of-Way without a permit, except as otherwise provided in this Franchise ordinance. Section 8.3 The City reserves the right to limit or exclude Franchisee s access to a specific route, public Right-of-Way or other location when, in the judgment of the City Engineer there is inadequate space (including but not limited to compliance with ADA clearance requirements and maintaining a clear and safe passage through the Rights-of-Way), a pavement cutting moratorium, unnecessary damage to public property, public expense, inconvenience, interference with City utilities, or for any other reason determined by the City Engineer. Section 8.4 If the Franchisee shall at any time plan to make excavations in any area covered by this Franchise and as described in this Section 8.4, the Franchisee shall afford the City an opportunity to share such excavation, PROVIDED THAT: 129 {ERZ DOC;13/ / } 15

130 (a) Such joint use shall not unreasonably delay the work of the Franchisee causing the excavation to be made; (b) Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and (c) Franchisee may deny such request for safety reasons. Section 8.5 Except for emergency situations, and if required by the permit, Franchisee shall give prior notice of intended construction to residents immediately adjacent to the Right-of- Way consistent with the requirements of the permit. Such notice shall contain the dates, contact number, nature and location of the work to be performed. Following performance of the work, Franchisee shall restore the Right-of-Way to City standards in effect at the time of construction except for any change in condition not caused by Franchisee. Any disturbance of landscaping, fencing, or other improvements on private property caused by Franchisee s work shall, at the sole expense of Franchisee, be promptly repaired and restored to the reasonable satisfaction of the property owner/resident. Notwithstanding the above, nothing herein shall give Franchisee the right to enter onto private property without the permission of such private property owner, or as otherwise authorized by applicable law. Section 8.6 Franchisee may trim trees upon and overhanging on public ways, streets, alleys, sidewalks, and other public places of the City so as to prevent the branches of such trees from coming in contact with Franchisee s Facilities. The right to trim trees in this Section 8.6 shall only apply to the extent necessary to protect above ground Facilities. Franchisee shall ensure that its tree trimming activities protect the appearance, integrity, and health of the trees to the extent reasonably possible. All trimming should be accomplished equivalent to the most recent issue of Standards of Pruning for Certified Arborists as developed by the International 130 {ERZ DOC;13/ / } 16

131 Society of Arboriculture or its industry accepted equivalent (ANSI A300). Franchisee shall be responsible for all debris removal from such activities. All trimming, except in emergency situations, is to be done after the explicit prior written notification and approval of the City and at the expense of Franchisee. Franchisee may contract for such services, however, any firm or individual so retained must first receive City permit approval prior to commencing such trimming. Nothing herein grants Franchisee any authority to act on behalf of the City, to enter upon any private property, or to trim any tree or natural growth not owned by the City. Franchisee shall be solely responsible and liable for any damage to any third parties trees or natural growth caused by Franchisee s actions. Franchisee shall indemnify, defend and hold harmless the City from third-party claims of any nature arising out of any act or negligence of Franchisee with regard to tree and/or natural growth trimming, damage, and/or removal. Franchisee shall reasonably compensate the City or the property owner for any damage caused by trimming, damage, or removal by Franchisee. Except in an emergency situation, all tree trimming must be performed under the direction of an arborist certified by the International Society of Arboriculture, unless otherwise approved by the City Engineer or his/her designee. Section 8.7 Franchisee shall meet with the City and other franchise holders and users of the Rights-of-Way upon written notice as determined by the City, to schedule and coordinate construction in the Rights-of-Way. All construction locations, activities, and schedules shall be coordinated, as ordered by the City to minimize public inconvenience, disruption or damages. Section 8.8 Franchisee shall inform the City with at least thirty (30) days advance written notice that it is constructing, relocating, or placing ducts or conduits in the Rights-of- Way and provide the City with an opportunity to request that Franchisee provide the City with 131 {ERZ DOC;13/ / } 17

132 additional duct or conduit and related structures necessary to access the conduit pursuant to RCW Section 8.9 Franchisee shall maintain all above ground improvements that it places on City Rights-of-Way pursuant to this Franchise. In order to avoid interference with the City's ability to maintain the Right-of-Way, Franchisee shall provide a clear zone to meet the City s Public Works Engineering and Construction Standards. If Franchisee fails to comply with this provision, and by its failure, property is damaged, then Franchisee shall be responsible for all damages caused thereby, including restoration. Section 9 One Call Locator Service. Prior to doing any work in the Rights-of-Way, the Franchisee shall follow established procedures, including contacting the Utility Notification Center in Washington and comply with all applicable State statutes regarding the One Call Locator Service pursuant to Chapter RCW. Further, upon request from a third party or the City, Franchisee shall locate its Facilities consistent with the requirements of Chapter RCW. The City shall not be liable for any damages to Franchisee s Facilities or for interruptions in service to Franchisee s customers that are a direct result of Franchisee s failure to locate its Facilities within the prescribed time limits and guidelines established by the One Call Locator Service regardless of whether the City issued a permit. Section 10 Safety Requirements. Section 10.1 Franchisee shall, at all times, employ professional care and shall install and maintain and use industry-standard methods for preventing failures and accidents that are likely to cause damage, injuries, or nuisances to the public. All structures and all lines, equipment, and connections in, over, under, and upon the Rights-of-Ways, wherever situated or located, shall at 132 {ERZ DOC;13/ / } 18

133 all times be kept and maintained in a safe condition. Franchisee shall comply with all federal, State, and City safety requirements, rules, regulations, laws, and practices, and employ all necessary devices as required by applicable law during the construction, operation, maintenance, upgrade, repair, or removal of its Facilities. By way of illustration and not limitation, Franchisee shall also comply with the applicable provisions of the National Electric Code, National Electrical Safety Code, Federal Communications Commission ( FCC ) regulations, and Occupational Safety and Health Administration (OSHA) Standards. Upon reasonable notice to Franchisee, the City reserves the general right to inspect the Facilities to evaluate if they are constructed and maintained in a safe condition. Section 10.2 If an unsafe condition or a violation of Section 10.1 is found to exist, and becomes known to the City, the City agrees to give Franchisee written notice of such condition and afford Franchisee a reasonable opportunity to repair the same. If Franchisee fails to start to make the necessary repairs and alterations within the time frame specified in such notice (and pursue such cure to completion), then the City may make such repairs or contract for them to be made. All costs, including administrative costs, incurred by the City in repairing any unsafe conditions shall be borne by Franchisee and reimbursed to the City pursuant to Section 14.3 and Section Section 10.3 Additional safety standards include: (a) Franchisee shall endeavor to maintain all equipment lines and facilities in an orderly manner, including, but not limited to, the removal of all bundles of unused cable on any aerial facilities. 133 {ERZ DOC;13/ / } 19

134 (b) All installations of equipment, lines, and ancillary facilities shall be installed in accordance with industry-standard engineering practices and shall comply with all federal, State, and local regulations, ordinances, and laws. (c) Any opening or obstruction in the Rights-of-Way or other public places made by Franchisee in the course of its operations shall be protected by Franchisee at all times by the placement of adequate barriers, fences, or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly marked and visible. Section 10.4 Stop Work Order. On notice from the City that any work is being performed contrary to the provisions of this Franchise, or in an unsafe or dangerous manner as determined by the City, or in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the work may immediately be stopped by the City. The stop work order shall: (a) (b) (c) (d) (e) Be in writing; Be given to the person doing the work or posted on the work site; Be sent to Franchisee by overnight delivery; Indicate the nature of the alleged violation or unsafe condition; and Establish conditions under which work may be resumed. Section 11 Work of Contractors and Subcontractors. Franchisee s contractors and subcontractors shall be licensed and bonded in accordance with State law and the City s ordinances, regulations, and requirements. Work by contractors and subcontractors are subject to the same restrictions, limitations, and conditions as if the work were performed by Franchisee. Franchisee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were 134 {ERZ DOC;13/ / } 20

135 performed by Franchisee and shall ensure that all such work is performed in compliance with this Franchise and applicable law. Section 12 Restoration after Construction. Section 12.1 Franchisee shall, after installation, construction, relocation, maintenance, or repair of its Facilities, or after abandonment approved pursuant to Section 18, promptly remove any obstructions from the Rights-of-Way and restore the surface of the Rights-of-Way to City standards in effect at the time of installation, construction, relocation, maintenance or repair, provided Franchisee shall not be responsible for any changes to the Rights-of-Way not caused by Franchisee or anyone doing work for Franchisee. The City Engineer or his/her designee shall have final approval of the condition of such Rights-of-Way after restoration. All concrete encased survey monuments that have been disturbed or displaced by such work shall be restored pursuant to federal, state (Chapter WAC), and local standards and specifications. Section 12.2 Franchisee agrees to promptly complete all restoration work and to promptly repair any damage caused by work to the Franchise Area or other affected area at its sole cost and expense and according to the time and terms specified in the construction permit issued by the City. All work by Franchisee pursuant to this Franchise shall be performed in accordance with applicable City Public Works Engineering and Construction Standards and warranted for a period of two (2) years and for undiscovered defects as is standard and customary for this type of work. Section 12.3 If conditions (e.g. weather) make the complete restoration required under Section 12 impracticable, Franchisee shall temporarily restore the affected Right-of-Way or property. Such temporary restoration shall be at Franchisee s sole cost and expense. Franchisee 135 {ERZ DOC;13/ / } 21

136 shall promptly undertake and complete the required permanent restoration when conditions no longer make such permanent restoration impracticable. Section 12.4 In the event Franchisee does not repair a Right-of-Way or an improvement in or to a Right-of-Way within the time agreed to by the City Engineer, or his/her designee, the City may repair the damage and shall be reimbursed its actual cost within sixty (60) days of submitting an invoice to Franchisee in accordance with the provisions of Section 14.3 and Section In addition, and pursuant to Section 14.3 and Section 14.4, the City may bill Franchisee for expenses associated with the inspection of such restoration work. The failure by Franchisee to complete such repairs shall be considered a breach of this Franchise and is subject to remedies by the City including the imposition of damages consistent with Section Section 12.5 The provisions of this Section 12 shall survive the expiration or termination of this Franchise so long as Franchisee continues to have Facilities in the Rights-of- Way and has not completed all restoration to the City s standards. Section 13 Emergency Work/Dangerous Conditions. Section 13.1 In the event of any emergency in which any of Franchisee s Facilities located in or under any street breaks, becomes damaged, or if Franchisee s construction area is otherwise in such a condition as to immediately endanger the property, life, health or safety of any individual, Franchisee shall immediately take the proper emergency measures to repair its Facilities, to cure or remedy the dangerous conditions for the protection of property, life, health or safety of individuals without first applying for and obtaining a permit as required by this Franchise. However, this shall not relieve Franchisee from the requirement of obtaining any permits necessary for this purpose, and Franchisee shall apply for all such permits not later than the next succeeding day during which the Puyallup City Hall is open for business. The City 136 {ERZ DOC;13/ / } 22

137 retains the right and privilege to cut or move any Facilities located within the Rights-of-Way of the City, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. Section 13.2 The City shall not be liable for any damage to or loss of Facilities within the Rights-of-Way as a result of or in connection with any public works, public improvements, construction, grading, excavation, filling, or work of any kind in the Rights-of-Way by or on behalf of the City, except to the extent directly and proximately caused by the gross negligence or willful acts of the City, its employees, contractors, or agents. The City shall further not be liable to Franchisee for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City s actions under this Section 13 except to the extent caused by the gross negligence or willful acts of the City, its employees, contractors, or agents. Section 13.3 Whenever the construction, installation or excavation of Facilities authorized by this Franchise has caused or contributed to a condition that appears to substantially impair the lateral support of the adjoining street or public place, or endangers the public, an adjoining public place, street utilities or City property, the City Engineer may direct Franchisee, at Franchisee s own expense, to take reasonable action to protect the public, adjacent public places, City property or street utilities, and such action may include compliance within a prescribed time. In the event that Franchisee fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, before the City can timely contact Franchisee to request Franchisee effect the immediate repair, the City may enter upon the property and take such reasonable actions as are necessary to protect the public, the adjacent streets, or street utilities, or 137 {ERZ DOC;13/ / } 23

138 to maintain the lateral support thereof, or reasonable actions regarded as necessary safety precautions, and Franchisee shall be liable to the City for the costs thereof. Section 14 Recovery of Costs. Section 14.1 Franchisee shall pay a one-time fee for the actual administrative expenses incurred by the City that are directly related to the receiving and approving this Franchise pursuant to RCW , including the costs associated with the City s legal costs incurred in drafting and processing this Franchise. No construction permits shall be issued for the installation of Facilities authorized until such time as the City has received payment of this fee, further this Franchise will not be deemed accepted without the payment of this fee. Franchisee shall further be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise or under the laws of the City. Where the City incurs costs and expenses for review, inspection, or supervision of activities, including but not limited to reasonable fees associated with attorneys, consultants, City Staff and City Attorney time, undertaken through the authority granted in this Franchise or any ordinances relating to the subject for which a permit fee is not established, Franchisee shall pay such costs and expenses directly to the City in accordance with the provisions of Section Section 14.2 In addition to Section 14, Franchisee shall promptly reimburse the City in accordance with the provisions of Section 14.3 and Section 14.4 for any and all costs the City reasonably incurs in response to any emergency situation involving Franchisee s Facilities, to the extent said emergency is not the fault of the City. The City agrees to simultaneously seek reimbursement from any franchisee or permit holder who caused or contributed to the emergency situation. 138 {ERZ DOC;13/ / } 24

139 Section 14.3 Franchisee shall reimburse the City within sixty (60) days of submittal by the City of an itemized billing for reasonably incurred costs, itemized by project, for Franchisee s proportionate share of all actual, identified expenses incurred by the City in planning, constructing, installing, repairing, altering, or maintaining any City facility as the result of the presence of Franchisee s Facilities in the Right-of-Way. Such costs and expenses shall include but not be limited to Franchisee s proportionate cost of City personnel assigned to oversee or engage in any work in the Right-of-Way as the result of the presence of Franchisee s Facilities in the Right-of-Way. Such costs and expenses shall also include Franchisee s proportionate share of any time spent reviewing construction plans in order to either accomplish the relocation of Franchisee s Facilities or the routing or rerouting of any utilities so as not to interfere with Franchisee s Facilities. Section 14.4 The time of City employees shall be charged at their respective rate of salary, including overtime if applicable, plus benefits and reasonable overhead. Any other costs will be billed proportionately on an actual cost basis. All billings will be itemized so as to specifically identify the costs and expenses for each project for which the City claims reimbursement. A charge for the actual costs incurred in preparing the billing may also be included in said billing. At the City s option, the billing may be on an annual basis, but the City shall provide the Franchisee with the City s itemization of costs, in writing, at the conclusion of each project for information purposes. Section 15 City s Reservation of Rights. Section 15.1 Franchisee hereby warrants that its operations as authorized under this Franchise are those of a telephone business as defined in RCW , or service provider as defined in RCW As a result, the City will not impose a Franchise fee under the terms 139 {ERZ DOC;13/ / } 25

140 of this Franchise, other than as described herein. The City hereby reserves its right to impose a Franchise fee on Franchisee if Franchisee s operations as authorized by this Franchise change such that the statutory prohibitions of RCW no longer apply or, if statutory prohibitions on the imposition of such fees are removed. In either instance, the City also reserves its right to require that Franchisee obtain a separate Franchise for its change in use, which Franchise may include provisions intended to regulate Franchisee s operations, as allowed under applicable law. Nothing contained herein shall preclude Franchisee from challenging any such new fee or separate agreement under applicable federal, State, or local laws. Section 15.2 Franchisee acknowledges that its operation with the City constitutes a telecommunication business subject to the utility tax imposed pursuant to the Puyallup Municipal Code Chapter Franchisee stipulates and agrees that certain of its business activities are subject to taxation as a telecommunication business and that Franchisee shall pay to the City the rate applicable to such taxable services under Puyallup Municipal Code Chapter 5.08, and consistent with state and federal law. The parties agree however, that nothing in this Franchise shall limit the City's power of taxation as may exist now or as later imposed by the City. This provision does not limit the City's power to amend Puyallup Municipal Code Chapter 5.10 as may be permitted by law. Nothing in this Franchise is intended to alter, amend, modify or expand the taxes and fees that may be lawfully assessed on Franchisee s Services under applicable law. Section 16 Indemnification. Section 16.1 Franchisee releases, covenants not to bring suit, and agrees to indemnify, defend, and hold harmless the City, its officers, employees, agents, and representatives from any and all claims, costs, judgments, awards, or liability to any person or entity, for injury or death of 140 {ERZ DOC;13/ / } 26

141 any person, or damage to property caused by or arising out of any acts or omissions of Franchisee, its agents, servants, officers, or employees in the performance of this Franchise and any rights granted within this Franchise. Section 16.2 Inspection or acceptance by the City of any work performed by Franchisee at the time of completion of construction shall not be grounds for avoidance by Franchisee of any of its obligations under this Section 16. These indemnification obligations shall extend to claims that are not reduced to a suit and any claims that may be compromised, with Franchisee s prior written consent, prior to the culmination of any litigation or the institution of any litigation. Section 16.3 The City shall promptly notify Franchisee of any claim or suit and request in writing that Franchisee indemnify the City. Franchisee may choose counsel to defend the City subject to this Section City s failure to so notify and request indemnification shall not relieve Franchisee of any liability that Franchisee might have, except to the extent that such failure prejudices Franchisee s ability to defend such claim or suit. In the event that Franchisee refuses the tender of defense in any suit or any claim, as required pursuant to the indemnification provisions within this Franchise, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of Franchisee, Franchisee shall pay all of the City s reasonable costs for defense of the action, including all expert witness fees, costs, and attorney s fees, and including costs and fees incurred in recovering under this indemnification provision. If separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the City and the counsel selected by Franchisee to represent the City, then upon the prior written approval and consent of Franchisee, which shall not be unreasonably withheld, the City shall have the right to employ separate counsel in any action or proceeding and to 141 {ERZ DOC;13/ / } 27

142 participate in the investigation and defense thereof, and Franchisee shall pay the reasonable fees and expenses of such separate counsel, except that Franchisee shall not be required to pay the fees and expenses of separate counsel on behalf of the City for the City to bring or pursue any counterclaims or interpleader action, equitable relief, restraining order or injunction. The City s fees and expenses shall include all out-of-pocket expenses, such as consultants and expert witness fees, and shall also include the reasonable value of any services rendered by the counsel retained by the City but shall not include outside attorneys fees for services that are unnecessarily duplicative of services provided the City by Franchisee. Each party agrees to cooperate and to cause its employees and agents to cooperate with the other party in the defense of any such claim and the relevant records of each party shall be available to the other party with respect to any such defense. Section 16.4 Except to the extent that damage or injury arises from the gross negligence or willful misconduct, malicious actions of the City, its employees or contractors, the obligations of Franchisee under the indemnification provisions of this Section 16 shall apply regardless of whether liability for damages arising out of bodily injury to persons or damages to property were caused or contributed to by the concurrent negligence of the City, its officers, agents, employees or contractors. Notwithstanding the proceeding sentence, to the extent the provisions of RCW are applicable, the parties agree that the indemnity provisions hereunder shall be deemed amended to conform to said statute and liability shall be allocated as provided therein. It is further specifically and expressly understood that the indemnification provided constitutes Franchisee s waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification, relating solely to indemnity claims made by the City directly against the 142 {ERZ DOC;13/ / } 28

143 Franchisee for claims made against the City by Franchisee s employees. This waiver has been mutually negotiated by the parties. Section 16.5 Notwithstanding any other provisions of this Section 16, Franchisee assumes the risk of damage to its Facilities located in the Right-of-Way and upon City-owned property from activities conducted by the City, its officers, agents, employees, volunteers, elected and appointed officials, and contractors, except to the extent any such damage or destruction is caused by or arises from any grossly negligent, willful, or criminal actions on the part of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Franchisee releases and waives any and all such claims against the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Franchisee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages, lost profits and consequential damages, brought by or under users of Franchisee s Facilities as the result of any interruption of service due to damage or destruction of Franchisee s Facilities caused by or arising out of activities conducted by the City, its officers, agents, employees or contractors, except to the extent any such damage or destruction is caused by or arises from the gross negligence or any willful, or criminal actions on the part of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Section 16.6 The provisions of this Section 16 shall survive the expiration, revocation, or termination of this Franchise. Section 17 Insurance. Section 17.1 Franchisee shall procure and maintain for so long as Franchisee has Facilities in the Right-of-Way, insurance against claims for injuries to persons or damages to 143 {ERZ DOC;13/ / } 29

144 property which may arise from or in connection with the exercise of rights, privileges and authority granted to Franchisee, its agents representatives or employees. Franchisee shall require that every contractor and subcontractor maintain insurance coverage and policy limits consistent with this Section 17. Franchisee shall procure insurance from insurers with a current A.M. Best rating of not less than A-. Franchisee shall provide a copy of a certificate of insurance and additional insured endorsement to the City for its inspection at the time of or prior to acceptance of this Franchise, and such insurance certificate shall evidence a policy of insurance that includes: (a) Automobile Liability insurance with limits no less than $2,000,000 combined single limit per occurrence for bodily injury and property damage. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA or a substitute form that provides coverage at least as broad. (b) Commercial General Liability insurance, written on an occurrence basis with limits no less than $3,000,000 per occurrence and $5,000,000 general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; premises; operations; independent contractors; stop gap liability; personal injury; products and completed operations; broad form property damage; explosion, collapse and underground (XCU); and employer s liability. Commercial General Liability insurance coverage shall be at least as broad as Insurance Services Office (ISO) occurrence form CG and shall cover products liability. The City shall be named as an additional insured under Franchisee s Commercial General Liability insurance policy using ISO Additional Insured-State or Political Subdivisions-Permits CG or a substitute endorsement providing coverage at least as broad. 144 {ERZ DOC;13/ / } 30

145 (c) Workers Compensation coverage as required by the Industrial Insurance laws of the State of Washington. No deductible is presently required for this insurance; and (d) Excess or Umbrella Liability insurance shall be excess over and at least as broad in coverage as the Franchisee s Commercial General Liability and Automobile Liability insurance. The City shall be named as an additional insured on the Franchisee s Excess or Umbrella Liability insurance policy. The Excess or Umbrella insurance coverage will drop down when underlying policy aggregate limits are exhausted. Excess or Umbrella Liability insurance shall be written with limits of not less than $10,000,000 per occurrence and annual aggregate. The Excess or Umbrella Liability requirement and limits may be satisfied instead through the Franchisee s Commercial General Liability and Automobile Liability insurance, or any combination thereof that achieves the overall required limits. Section 17.2 The City acknowledges that Franchisee s current deductibles are subject to change based on business needs and the commercial insurance market. Payment of deductible or self-insured retention shall be the sole responsibility of Franchisee. Additionally, Franchisee shall pay all premiums for the insurance on a timely basis. Franchisee may utilize primary and umbrella liability insurance policies to satisfy the insurance policy limits required in this Section 17. Franchisee s umbrella liability insurance policy shall provide follow form coverage over its primary liability insurance policies. Section 17.3 The insurance policies, with the exception of Workers Compensation obtained by Franchisee shall name the City, its officers, officials, employees, agents, and volunteers ( Additional Insureds ), as an additional insured with regard to activities performed by or on behalf of Franchisee and on the forms described in Section 17.1 above. The coverage shall contain no special limitations on the scope of protection afforded to the Additional 145 {ERZ DOC;13/ / } 31

146 Insureds. In addition, the insurance policy shall contain a clause stating that coverage shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer s liability. Franchisee shall provide to the City prior to or upon acceptance either (1) a true copy of the additional insured endorsement for each insurance policy required in this Section 17 and providing that such insurance shall apply as primary insurance on behalf of the Additional Insureds or (2) a true copy of the blanket additional insured clause from the policies. Receipt by the City of any certificate showing less coverage than required is not a waiver of Franchisee s obligations to fulfill the requirements. Franchisee s insurance shall be primary insurance with respect to the Additional Insureds, and the endorsement should specifically state that the insurance is the primary insurance. Any insurance maintained by the Additional Insureds shall be in excess of Franchisee s insurance and shall not contribute with it. Section 17.4 Franchisee is obligated to notify the City of any cancellation or intent not to renew any insurance policy, required pursuant to this Section 17, thirty (30) days prior to any such cancellation, or ten (10) days for nonpayment of premiums. Within fifteen (15) days prior to said cancellation or intent not to renew, Franchisee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section 17. Failure to provide the insurance cancellation notice and to furnish to the City replacement insurance policies meeting the requirements of this Section 17 shall be considered a material breach of this Franchise and subject to the City s election of remedies described in Section 22 below. Notwithstanding the cure period described in Section 22.2, the City may pursue its remedies immediately upon a failure to furnish replacement insurance. Section 17.5 Franchisee s maintenance of insurance as required by this Section 17 shall not be construed to limit the liability of Franchisee to the coverage provided by such insurance, 146 {ERZ DOC;13/ / } 32

147 or otherwise limit the City s recourse to any remedy available at law or equity. Further, Franchisee s maintenance of insurance policies required by this Franchise shall not be construed to excuse unfaithful performance by Franchisee. Section 17.6 As of the effective date of this Franchise, Franchisee is not self-insured. Should Franchisee wish to become self-insured at the levels outlined in this Franchise at a later date, Franchisee must provide the City with thirty (30) days advanced written notice of its intent to self-insure. In order to self-insure, Franchisee shall comply with the following: (i) provide a written attestation that Franchisee possesses the necessary amount of unencumbered financial assets to support the financial exposure of self-insurance, as evidenced by an outside auditor s review of Franchisee s financial statements; (ii) the City, upon request, may review Franchisee s financial statements; (iii) Franchisee is responsible for all payments within the self-insured retention; and (iv) Franchisee assumes all defense and indemnity obligations as outlined in the indemnification section of this Franchise. These requirements may be modified by written amendment executed by both parties. Section 18 Abandonment of Franchisee s Telecommunications Fiber Optic Cable Network. Section 18.1 Upon the expiration, termination, or revocation of the rights granted under this Franchise, Franchisee shall remove all of its Facilities from the Right-of-Way within thirty (30) days of receiving written notice from the City Engineer or his/her designee. The Facilities, in whole or in part, may not be abandoned by Franchisee without written approval by the City. Any plan for abandonment or removal of Franchisee s Facilities must be first approved by the City Engineer or his/her designee, and all necessary permits must be obtained prior to such work. Franchisee shall restore the Right-of-Way to the City standards in effect at the time of any such installation, construction, relocation, maintenance or repair, provided Franchisee shall not be 147 {ERZ DOC;13/ / } 33

148 responsible for any changes to the Right-of-Way not caused by Franchisee or any person doing work for Franchisee. Franchisee shall be solely responsible for all costs associated with removing its Facilities. Section 18.2 Notwithstanding Section 18.1 above, the City may permit Franchisee s improvements to be abandoned and placed in such a manner as the City may prescribe. Upon permanent abandonment, and Franchisee s agreement to transfer ownership of the Facilities to the City, Franchisee shall submit to the City a proposal and instruments for transferring ownership to the City. Section 18.3 Any Facilities which are not removed within one hundred (120) days of either the date of termination or revocation or the date the City issued a permit authorizing removal, whichever is later, shall automatically become the property of the City. Any costs incurred by the City in safeguarding such Facilities or removing the Facilities shall be reimbursed by Franchisee. Nothing contained within this Section 18 shall prevent the City from compelling Franchisee to remove any such Facilities through judicial action when the City has not permitted Franchisee to abandon said Facilities in place. The provisions of this Section 18 shall survive the expiration, revocation, or termination of this Franchise. Section 18.4 If Franchisee leases a structure in the Right-of-Way from a landlord and such landlord later replaces, removes or relocates the structure, for example by building a replacement structure, Franchisee shall remove or relocate its Facilities within the Public Ways within ninety (90) days of such notification from the landlord at no cost to the City. Section 18.5 The provisions of this Section 18 shall survive the expiration, revocation, or termination of this Franchise and for so long as Franchisee has Facilities in Rights-of-Way. 148 {ERZ DOC;13/ / } 34

149 Section 19 Bonds. Section 19.1 Construction Performance Bond. If required by the City Engineer or his/her designee, Franchisee shall furnish a performance bond ( Performance Bond ) written by a corporate surety reasonably acceptable to the City equal to at least 150% of the estimated cost of constructing Franchisee s Facilities within the Rights-of-Way of the City prior to commencement of any such work or such other amount as deemed appropriate by the City Engineer. The Performance Bond shall guarantee the following: (1) timely completion of construction; (2) construction in compliance with all applicable plans, permits, technical codes, and standards; (3) proper location of the Facilities as specified by the City; (4) restoration of the Rights-of-Way and other City properties affected by the construction; (5) submission of as-built drawings after completion of construction; and (6) timely payment and satisfaction of all claims, demands, or liens for labor, materials, or services provided in connection with the work which could be asserted against the City or City property. Said bond must remain in full force until the completion of construction, including final inspection, corrections, and final approval of the work, recording of all easements, provision of as-built drawings, and the posting of a Maintenance Bond as described in Section Compliance with the Performance Bond requirement of the City s current Public Works Engineering and Construction Standards shall satisfy the provisions of this Section Upon approval from the City Engineer, Franchisee may furnish a Performance Bond to cover all work within the Right-of-Way. Section 19.2 Maintenance Bond. If required by the City Engineer or his/her designee, Franchisee shall furnish a two (2) year maintenance bond ( Maintenance Bond ), or other surety acceptable to the City, at the time of final acceptance of construction work on Facilities within the Rights-of-Way. The Maintenance Bond amount will be equal to ten percent (10%) of the 149 {ERZ DOC;13/ / } 35

150 documented final cost of the construction work. The Maintenance Bond in this Section 19.2 must be in place prior to City s release of the bond required by Section Compliance with the Maintenance Bond requirement of the City s current Design and Construction Standards shall satisfy the provisions of this Section Section 19.3 Franchise Bond. Franchisee shall provide City with a bond in the amount of twenty five Thousand Dollars ($25,000.00) ( Franchise Bond ) running or renewable for the term of this Franchise, in a form and substance reasonably acceptable to City. In the event Franchisee shall fail to substantially comply with any one or more of the provisions of this Franchise following notice and a reasonable opportunity to cure, then there shall be recovered jointly and severally from Franchisee and the bond any actual damages suffered by City as a result thereof, including but not limited to staff time, material and equipment costs, compensation or indemnification of third parties, and the cost of removal or abandonment of facilities hereinabove described. Franchisee specifically agrees that its failure to comply with the terms of this Section 19 shall constitute a material breach of this Franchise. The amount of the bond shall not be construed to limit Franchisee's liability or to limit the City's recourse to any remedy to which the City is otherwise entitled at law or in equity. Section 20 Modification. The City and Franchisee hereby reserve the right to alter, amend, or modify the terms and conditions of this Franchise upon written agreement of both parties to such alteration, amendment or modification. Section 21 Forfeiture and Revocation. If Franchisee willfully violates or fails to comply with any of the provisions of this Franchise, or through willful misconduct or gross negligence fails to heed or comply with any 150 {ERZ DOC;13/ / } 36

151 notice given Franchisee by the City under the provisions of this Franchise, then Franchisee shall, at the election of the Puyallup City Council, forfeit all rights conferred hereunder and this Franchise may be revoked or annulled by the Council after a hearing held upon notice to Franchisee. Section 22 Remedies to Enforce Compliance. Section 22.1 The City may elect, without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling Franchisee to comply with the provisions of the Franchise and to recover damages and costs incurred by the City by reason of Franchisee s failure to comply. In addition to any other remedy provided herein, the City reserves the right to pursue any remedy to compel or force Franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein. Provided, further, that by entering into this Franchise, it is not the intention of the City or Franchisee to waive any other rights, remedies, or obligations as otherwise provided by law equity, or otherwise, and nothing contained here shall be deemed or construed to effect any such waiver. Section 22.2 If Franchisee shall violate, or fail to comply with any of the provisions of this Franchise, or should it fail to heed or comply with any notice given to Franchisee under the provisions of this Franchise, the City shall provide Franchisee with written notice specifying with reasonable particularity the nature of any such breach and Franchisee shall undertake all commercially reasonable efforts to cure such breach within thirty (30) days of receipt of notification. If the parties reasonably determine the breach cannot be cured within (30) thirty days, the City may specify a longer cure period, and condition the extension of time on 151 {ERZ DOC;13/ / } 37

152 Franchisee's submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty (30) day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or Franchisee does not comply with the specified conditions, City may, at its discretion, (1) commence revocation proceedings, pursuant to Section 21, or (2) claim damages of Two Hundred Fifty Dollars ($250.00) per day against the Franchise Bond set forth in Section 19.3, or (3) pursue other remedies as described in Section 22.1 above. Section 23 Non-Waiver. The failure of the City to insist upon strict performance of any of the covenants and agreements of this Franchise or to exercise any option herein conferred in any one or more instances, shall not be construed to be a waiver or relinquishment of any such covenants, agreements or option or any other covenants, agreements or option. Section 24 City Ordinances and Regulations. Nothing herein shall be deemed to restrict the City s ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of this Franchise, including any valid ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public. The City shall have the authority at all times to reasonably control by appropriate regulations the location, elevation, manner of construction and maintenance of Facilities by Franchisee, and Franchisee shall promptly conform with all such regulations, unless compliance would cause Franchisee to violate other requirements of law. In the event of a conflict between the provisions of this Franchise ordinance and any other ordinance(s) enacted under the City s police power authority, such other ordinances(s) shall take precedence over the provisions set forth herein. 152 {ERZ DOC;13/ / } 38

153 Section 25 Cost of Publication. The cost of publication of this Franchise ordinance shall be borne by Franchisee. Section 26 Acceptance. Franchisee shall execute and return to the City its execution and acceptance of this Franchise in the form attached hereto as Exhibit A. In addition, Franchisee shall submit proof of insurance obtained and additional insured endorsement pursuant to Section 17, any construction Performance Bond pursuant to Section 19.1 and the Franchise Bond required pursuant to Section The administrative fee pursuant to Section 14.1 is due within thirty days of receipt of the invoice from the City. Section 27 Survival. All of the provisions, conditions, and requirements of Section 5, Section 6, Section 8, Section 12, Section 13, Section 16, Section 18, Section 19, Section 27, Section 28, Section 37, and Section 39 of this Franchise shall be in addition to any and all other obligations and liabilities Franchisee may have to the City at common law, by statute, or by contract, and shall survive the City s Franchise to Franchisee for the use of the Franchise Area, and any renewals or extensions thereof. All of the provisions, conditions, regulations and requirements contained in this Franchise ordinance shall further be binding upon the heirs, successors, executors, administrators, legal representatives and assigns of Franchisee and all privileges, as well as all obligations and liabilities of Franchisee shall inure to its heirs, successors and assigns equally as if they were specifically mentioned where Franchisee is named herein. Section 28 Assignment. Section 28.1 This Franchise may not be directly or indirectly assigned, transferred, or disposed of by sale, lease, merger, consolidation or other act of Franchisee, by operation of law 153 {ERZ DOC;13/ / } 39

154 or otherwise, unless approved in writing by the City, which approval shall not be unreasonably withheld, conditioned or delayed. The above notwithstanding, Franchisee may freely assign this Franchise in whole or in part to a parent, subsidiary, or affiliated entity, unless there is a change of control as described in Section 28.2 below, or for collateral security purposes. Franchisee shall provide prompt, written notice to the City of any such assignment. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such consent shall not be required unless and until the secured party elects to realize upon the collateral. For purposes of this Section 28, no assignment or transfer of this Franchise shall be deemed to occur based on the public trading of Franchisee s stock; provided, however, any tender offer, merger, or similar transaction resulting in a change of control shall be subject to the provisions of this Franchise. Section 28.2 Any transactions that singularly or collectively result in a change of more than fifty percent (50%) of the: ultimate ownership or working control of Franchisee, ownership or working control of the Facilities, ownership or working control of affiliated entities having ownership or working control of Franchisee or of the Facilities, or of control of the capacity or bandwidth of Franchisee s Facilities, shall be considered an assignment or transfer requiring City approval. Transactions between affiliated entities are not exempt from City approval if there is a change in control as described in the preceding sentence. Franchisee shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any other party of control of Franchisee. Every change, transfer, or acquisition of control of Franchisee shall cause a review of the proposed transfer. The City shall approve or deny such request for an assignment or transfer requiring City s consent within one-hundred twenty (120) days of a completed application from Franchisee, unless a longer period of time is mutually agreed to by the parties 154 {ERZ DOC;13/ / } 40

155 or when a delay in the action taken by the City is due to the schedule of the City Council and action cannot reasonably be obtained within the one hundred twenty (120) day period. In the event that the City adopts a resolution denying its consent and such change, transfer, or acquisition of control has been affected, the City may revoke this Franchise, following the revocation procedure described in Section 21 above. The assignee or transferee must have the legal, technical, financial, and other requisite qualifications to own, hold, and operate Franchisee s Services. Franchisee shall reimburse the City for all direct and indirect costs and expenses reasonably incurred by the City in considering a request to transfer or assign this Franchise, in accordance with the provisions of Section 14.3 and Section 14.4, and shall pay the applicable application fee. Section 28.3 Franchisee may, without prior consent from the City: (i) lease the Facilities, or any portion, to another person; (ii) grant an indefeasible right of user interest in the Facilities, or any portion, to another person; or (iii) offer to provide capacity or bandwidth in its Facilities to another person, provided further, that Franchisee shall at all times retain exclusive control over its Facilities and remain fully responsible for compliance with the terms of this Franchise. Franchisee s obligation to remain fully responsible for compliance with the terms under this Section 28.3 shall survive the expiration of this Franchise but only if and to the extent and for so long as Franchisee is still the owner or has exclusive control over the Facilities used by a third party. Section 29 Extension. If this Franchise expires without renewal or is otherwise lawfully terminated or revoked, the City may, subject to applicable law: 155 {ERZ DOC;13/ / } 41

156 (a) Allow Franchisee to maintain and operate its Facilities on a month-tomonth basis, provided that Franchisee maintains insurance for such Facilities during such period and continues to comply with this Franchise; or (b) The City may order the removal of any and all Facilities at Franchisee s sole cost and expense consistent with Section 18. Section 30 Entire Agreement. This Franchise constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon execution of this Franchise. Section 31 Eminent Domain. The existence of this Franchise shall not preclude the City from acquiring by condemnation in accordance with applicable law, all or a portion of the Franchisee s Facilities for the fair market value thereof. In determining the value of such Facilities, no value shall be attributed to the right to occupy the area conferred by this Franchise. Section 32 Vacation. If at any time the City, by ordinance, vacates all or any portion of the area affected by this Franchise, the City shall not be liable for any damages or loss to the Franchisee by reason of such vacation. The City shall notify the Franchisee in writing not less than sixty (60) days before vacating all or any portion of any such area, if the Franchisee s Facilities are in such area. The City may, after sixty (60) days written notice to the Franchisee, terminate this Franchise with respect to such vacated area. 156 {ERZ DOC;13/ / } 42

157 Section 33 Notice. Any Notice or information required or permitted to be given to the parties under this Franchise agreement may be sent to the following addresses unless otherwise specified: CITY OF PUYALLUP Attn: City Engineer 333 South Meridian Puyallup, WA LEVEL 3 COMMUNICATIONS, LLC Attn: Contract Management 1025 Eldorado Boulevard Broomfield, Colorado With a copy to: Attn: Legal Department (at the same address) Section 34 Severability. If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this ordinance unless such invalidity or unconstitutionality materially alters the rights, privileges, duties, or obligations hereunder, in which event either party may request renegotiation of those remaining terms of this Franchise materially affected by such court s ruling. Section 35 Compliance with All Applicable Laws. Franchisee agrees to comply with all present and future federal, state and local laws, ordinances, rules and regulations. This Franchise is subject to ordinances of general applicability enacted pursuant to the City s police powers. Franchisee further agrees to save and hold the City harmless from damage, loss or expense, arising out of the said use or work, unless caused by the City s gross negligence and to remove all liens and encumbrances arising as a result of said use or work. Franchisee shall, at its own expense, maintain its Facilities in a safe condition, in good repair and in a manner suitable to the City. Additionally, Franchisee shall keep its Facilities free of debris and anything of a dangerous, noxious or offensive nature or which would create a 157 {ERZ DOC;13/ / } 43

158 hazard or undue vibration, heat, noise or any interference with City services. City reserves the right at any time to amend this Franchise to conform to any hereafter enacted, amended, or adopted federal or state statute or regulation relating to the public health, safety, and welfare, or relating to roadway regulation, or a City ordinance enacted pursuant to such federal or state statute or regulation upon providing Franchisee with thirty (30) days written notice of its action setting forth the full text of the amendment and identifying the statute, regulation, or ordinance requiring the amendment. Said amendment shall become automatically effective upon expiration of the notice period unless, before expiration of that period, Franchisee makes a written request for negotiations over the terms of the amendment. If the parties do not reach agreement as to the terms of the amendment within thirty (30) days of the call for negotiations, City may enact the proposed amendment, by incorporating Franchisee's concerns to the maximum extent City deems possible. Section 36 Attorneys Fees. If a suit or other action is instituted in connection with any controversy arising out of this Franchise, the prevailing party shall be entitled to recover all of its costs and expenses, including such sum as the court may judge as reasonable for attorneys fees, costs, expenses and attorneys fees upon appeal of any judgment or ruling. Section 37 Hazardous Substances. Franchisee shall not introduce or use any hazardous substances (chemical or waste), in violation of any applicable law or regulation, nor shall Franchisee allow any of its agents, contractors or any person under its control to do the same. Franchisee will be solely responsible for and will defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from and against any and all claims, costs and liabilities including 158 {ERZ DOC;13/ / } 44

159 reasonable attorneys fees and costs, arising out of or in connection with the cleanup or restoration resulting from a violation of this section by Franchisee or its agents, contractors or employees. Section 38 Licenses, Fees and Taxes. Prior to constructing any improvements, Franchisee shall obtain a business or utility license from the City. Franchisee shall pay promptly and before they become delinquent, all taxes on personal property and improvements owned or placed by Franchisee and shall pay all license fees and public utility charges relating to the conduct of its business, shall pay for all permits, licenses and zoning approvals, shall pay any other applicable tax unless documentation of exemption is provided to the City and shall pay utility taxes and license fees imposed by the City. Section 39 Miscellaneous. Section 39.1 City and Franchisee respectively represent that its signatory is duly authorized and has full right, power and authority to execute this Franchise. Section 39.2 This Franchise shall be construed in accordance with the laws of the State of Washington. Venue for any dispute related to this Franchise shall be the United States District Court for the Western District of Washington, or Pierce County Superior Court. Section 39.3 Section captions and headings are intended solely to facilitate the reading thereof. Such captions and headings shall not affect the meaning or interpretation of the text herein. Section 39.4 Where the context so requires, the singular shall include the plural and the plural includes the singular. 159 {ERZ DOC;13/ / } 45

160 Section 39.5 Franchisee shall be responsible for obtaining all other necessary approvals, authorizations and agreements from any party or entity and it is acknowledged and agreed that the City is making no representation, warranty or covenant whether any of the foregoing approvals, authorizations or agreements are required or have been obtained by Franchisee by any person or entity. Section 39.6 This Franchise may be enforced at both law and equity. Section 39.7 Franchisee acknowledges that it, and not the City, shall be responsible for the premises and equipment s compliance with all marking and lighting requirements of the FAA and the FCC. Franchisee shall indemnify and hold the City harmless from any fines or other liabilities caused by Franchisee s failure to comply with such requirements. Should Franchisee or the City be cited by either the FCC or the FAA because the Facilities or the Franchisee s equipment is not in compliance and should Franchisee fail to cure the conditions of noncompliance within the timeframe allowed by the citing agency, the City may either terminate this Franchise immediately on notice to the Franchisee or proceed to cure the conditions of noncompliance at the Franchisee s expense. Section 39.8 There are no third party beneficiaries to this Franchise. Section 40 Ordinance Effective Date. This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect five (5) days after passage and publication of an approved summary thereof consisting of the title. 160 {ERZ DOC;13/ / } 46

161 APPROVED: ATTEST/AUTHENTICATED: Kevin Yamamoto City Manager MARY WINTER CITY CLERK APPROVED AS TO FORM: JOE BECK CITY ATTORNEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: 161 {ERZ DOC;13/ / } 47

162 SUMMARY OF ORDINANCE NO. (201_) City of Puyallup, Washington On the day of, 201, the City Council of the City of Puyallup passed Ordinance No. (201 ). A summary of the content of said Ordinance, consisting of the title, is provided as follows: AN ORDINANCE OF THE CITY OF PUYALLUP, WASHINGTON, GRANTING TO LEVEL 3 COMMUNICATIONS, LLC AND ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AUTHORITY AND NONEXCLUSIVE FRANCHISE FOR TEN YEARS, TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A TELECOMMUNICATIONS NETWORK, IN, ACROSS, OVER, ALONG, UNDER, THROUGH AND BELOW CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF PUYALLUP, WASHINGTON. The full text of this Ordinance will be mailed upon request. MARY WINTER CITY CLERK FILED WITH THE CITY CLERK:, 201_ PASSED BY THE CITY COUNCIL:, 201_ PUBLISHED:, 201_ EFFECTIVE DATE:, 201_ ORDINANCE NO.: (201_) 162 {ERZ DOC;13/ / } 48

163 EXHIBIT A STATEMENT OF ACCEPTANCE Level 3 Communications, LLC, for itself, its successors and assigns, hereby accepts and agrees to be bound by all lawful terms, conditions and provisions of the Franchise attached hereto and incorporated herein by this reference. LEVEL 3 COMMUNICATIONS, LLC By: Name: Title: Date: STATE OF ) )ss. COUNTY OF ) On this day of, 201, before me the undersigned, a Notary Public in and for the State of, duly commissioned and sworn, personally appeared, of, the company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that he/she is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth. Signature NOTARY PUBLIC in and for the State of Residing at MY COMMISSION EXPIRES: 163 {ERZ DOC;13/ / }

164 City Council Agenda Item Report Submitted by: Mary Winter Submitting Department: City Clerk's Office Meeting Date: 2/13/2018 Subject: Resolution confirming Board and Commission Appointments Presenter: Recommendation: Approve a resolution confirming appointments to the Parks and Recreation Board, Planning Commission and the Senior Advisory Board as recommended by the City Council Ad Hoc Appointments Committee. Background: Terms for various board and commission positions are set to expire on March 6, A Senior Advisory Board was established in Ordinance No on January 23, Advertisements soliciting applications were published in The News Tribune on January 12, Notice announcing the upcoming boards and commission process was placed on the front page of the city website as well as the public bulletin boards at the Municipal Court, Library and Activity Center on January 12th. The Ad Hoc Appointments Committee interviewed candidates for the Parks and Recreation Board; Planning Commission and the Senior Advisory Board on February 7, Not enough applications were received to fill all seven positions of the Senior Advisory Board, therefore, the Appointments Committee has extended the application deadline and plans on interviewing more candidates in the near future. The committee recommends that the Mayor, with concurrence of the Council make the following appointments: Planning Commission: Scott Harm and Art Seeley Senior Advisory Board: James "Rick" Crozier, Renee Genett, Ronda Gorham, Mary Mugelstad, and Nancy Strackbein Parks and Recreation Commission: Kevin Caviezel and Greg Stevens The newly created Senior Advisory Board is a seven member board and because expiration dates need to be staggered, the city clerk's office performed an impartial drawing to establish expiration dates for the seven positions. Four positions will have terms expiring in 2022 and three positions will have terms expiring in Council Direction: 164 Fiscal Impacts:

165 ATTACHMENTS Boards & Comm Appointments Resolution 165

166 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PUYALLUP, WASHINGTON, confirming appointments to the Parks and Recreation Board, Planning Commission, and Senior Advisory Board WHEREAS, vacancies have occurred on the Parks and Recreation Board and the Planning Commission due to the expiration of terms and resignations; and WHEREAS, the City Council approved Ordinance No amending Chapter 2.24, Sections 010, 020, and 070 of Puyallup Municipal Code and adding Chapter 2.26, establishing a Senior Advisory Board to better serve the needs of the city s senior population; and WHEREAS, the Puyallup Municipal Code provides in Sections , , and respectively, that appointments of members to the said commission or board shall be made by the Mayor with the concurrence of the City Council; and WHEREAS, the Mayor, with the support of the Appointments Committee, as provided in the "City of Puyallup Rules of Procedure," has recommended the appointment of the following individuals with their term expiration dates: Parks and Recreation Board Term Expiration Kevin Caviezel (filling an unexpired term) March 5, 2019 Greg Stevens (filling an unexpired term) March 5, 2019 Planning Commission Art Seeley (Reappointment) March 8, 2022 Scott Harm March 8, 2022 Senior Advisory Board James Rick Crozier March 3, 2020 Renee Genett March 8, 2022 Ronda Gorham March 8, 2022 Mary Mugelstad March 8, 2022 Nancy Strackbein March 3, 2020 NOW THEREFORE, by adoption of this resolution the City Council confirms said appointments as listed. Resolution No Board and Commission Appointments Page 1 of 2 166

167 Adopted by the City Council of the City of Puyallup at a regular meeting on the 13th day of February, ATTEST: John Palmer Mayor Mary Winter City Clerk APPROVED AS TO FORM: Joseph N. Beck City Attorney Resolution No Board and Commission Appointments Page 2 of 2 167

168 City Council Agenda Item Report Submitted by: Katie Baker Submitting Department: Development Services Meeting Date: 2/13/2018 Subject: Transfer of Development Rights Presentation Presenter: Katie Baker, AICP, Senior Planner Recommendation: In late 2017, City Council authorized staff to proceed forward with a consultant-assisted feasibility analysis for a possible Transfer of Development Rights program in Puyallup. At that time, Councilmembers expressly requested that staff return to Council, early in the study process, for an initial policy discussion. On February 13th, staff and the City consultants (Forterra) will provide the requested overview presentation and identify specific policy questions to receive City Council direction and input. Background: In September 2017, City Council directed staff and a consultant (Forterra) to resume work on assessing a Transfer of Development Rights (TDR) program, a project that was previously being developed in 2011/2012 as part of the larger Cultivating Puyallup project. At that time, Councilmembers specifically asked that staff return to Council, early in the process, for initial policy discussion. At this upcoming meeting, staff and project consultants will provide City Council with background on the work done in 2012, an overview of the components that make up a TDR program, and the role that the Landscape Conservation and Local Infrastructure Program (LCLIP) can play in relation to a TDR program. This meeting will also serve as an opportunity for Council to provide input and direction on key policy issues that will inform the development of a TDR program. The policy issues to discuss are related to four general components of a TDR program: potential sending sites (land to be conserved); receiving sites (areas to receive additional development); conversion commodities (specific bonuses or credits to be exchanged), and program administration. Please review the attached staff memo and supplemental documents for additional information on TDR, LCLIP, and the specific policy questions. Council Direction: City Council may ask questions and provide input and direction that will inform the work on a transfer of development rights (TDR) program. Fiscal Impacts: City Council previously authorized the City Manager to enter into a contract with a consulting firm to develop this TDR program. This cost was included in the adopted 2018 budget. 168 ATTACHMENTS

169 A) Staff Memo B) TDR Program Brochure for Cities-Pierce County C) TDR Case Study - PierceCounty - Tacoma D) LCLIP Overview 169

170 City of Puyallup Development Services Planning Division 333 S Meridian Puyallup, WA P: (253) E: kbaker@ci.puyallup.wa.us To: From: Subject: City Council Katie Baker, AICP, Senior Planner Date of CC meeting: February 13, 2018 Introduction Transfer of Development Rights/Landscape Conservation and Local Infrastructure Program In September 2017, City Council directed staff and a consultant (Forterra) to restart work on developing a transfer of development rights (TDR) program, a project that was previously being developed in 2011/2012 as part of the Cultivating Puyallup project. At that time, there were a number of concerns raised by some members of the community that led City Council to terminate the project prior to its completion. Before restarting the work to develop a TDR program for the City, staff had indicated we would come before City Council to further discuss TDR and get feedback and policy direction early-on in the process. At this meeting, staff and consultants would like to provide City Council with background on the work done in 2012, an overview of the components that make up a TDR program, and the role that the Landscape Conservation and Local Infrastructure Program (LCLIP) can play in relation to a TDR program. This will also serve as an opportunity to for Council provide input and direction on key policy issues that will inform the development of a TDR program; these policy issues are outlined below. Transfer of Development Rights (TDR) TDR is a market-based land use tool for helping implement a jurisdiction s growth policies while conserving natural resource and open space lands. Through individual transactions, development rights are transferred from privately owned farmland, forest land, and natural areas (known as sending sites) to areas that can accommodate additional growth (known as receiving sites). Landowners in sending areas receive compensation for giving up their right to develop, while developers in receiving areas pay for the right to develop at greater densities or heights than would otherwise be allowed, under base zoning. Landscape Conservation and Local Infrastructure Program (LCLIP) LCLIP is a financing program that combines TDR with a public finance option for cities. In exchange for accepting development rights, cities may use this to capture the County s portion of future tax revenue generated by new development projects. This additional revenue is then used to make improvements to infrastructure such as parks, utilities, and streets, that is needed to accommodate growth. This project will provide a feasibility analysis to examine the requirements and benefits that the City could experience if using the LCLIP tool in combination with TDR. Page 1 of 2 170

171 Policy Questions As noted above, staff intends to raise a number of policy questions for Council to consider which will help shape the overall TDR program priorities. The policy direction provided will give staff and the project consultants a framework with which to inform development of a Puyallup-specific TDR program moving forward. These questions are consolidated into the four general components of a TDR program. Sending sites: o Some possible sending sites may be identified within the current boundaries of the City and its urban growth area. Many more possible sending sites can be identified that are located in greater Pierce County. Should potential sending sites be prioritized by geographic location or type of land use (e.g. agriculture vs. forest lands)? Receiving Sites: o In the prior work and this restart, identified receiving areas include the City s two Regional Growth Centers: Downtown and South Hill. Are these two receiving areas acceptable? Are there any other areas of the city (i.e. River Road or East Main) that should be considered for receiving areas? Conversion Commodities: o Typical credits or bonuses allowed in exchange for a development right may include additional commercial floor area or building height, reduced parking ratios or impact fees, or other development incentives. Are there any commodities that should be excluded from consideration? Administration of a TDR program: o It is anticipated that the City would participate jointly in the established Pierce County program through an Interlocal Agreement. This would include some City staff administration to oversee the receiving sites. Alternatively, the program could be administered through a land trust in a public/private partnership. Is one of these arrangements preferable to the other? Summary At the February 13, 2018 City Council meeting, staff and project consultants will provide an overview of this project and more detailed information related to development of a TDR program and the potential use of LCLIP. Policy questions will be posed for Council consideration to provide direction that will inform the project as it moves forward. Page 2 of 2 171

172 County TDR Program TDR permanently conserves resource lands through acquisition and extinguishment of development rights: Development rights are transferred from resource lands by placing a conservation easement on property 4 Funds received from TDR Certificates are deposited into TDR Bank to purchase additional development rights on resource lands 1 3 Development rights are converted to TDR Certificates and deposited in County TDR Bank 2 TDR Certificates are sold to eligible receiving sites within city to increase the intensity of development Why TDR? A Transfer of Development Rights Program allows a city and the County to comply with goals of the Growth Management Act and Vision 2040: Helps focus growth and efficiently deliver services Directs development to urban areas by creating density incentives Discourages inappropriate conversion of undeveloped rural and resource lands Conserves lands that provide economic and environmental benefits to all residents Enables County and cities to adopt cooperative planning goals and policies Resources Transfer of Development Rights Information for Cities and Towns Resource Land Development Rights Conservation Easement $$$ Note An Interlocal Agreement is required for TDR Certificates to be used in other jurisdictions County Contact: Diane Marcus-Jones, Senior Planner dmarcus@co.pierce.wa.us Higher Density Urban Development 172

173 City TDR Program Interlocal Agreement Transactions Cities must adopt their own TDR programs in order to transfer development rights from the County A cooperative framework that provides the transfer of development rights from County to City: 81 TDR Certificates currently for sale City TDR Program authorizes: Equitable conversion ratio and how density credits will be realized Identify County priority resource lands Ability to transfer development rights from County lands to City Identify areas within City limits that are eligible receiving areas Example: Conversion Ratio One (1) TDR Certificate could equal One (1) Density Credit Density Credits could increase: Square footage of vertical height Dwelling units Parking Spaces Other development standards Establishes procedures for facilitation and completing transactions Identifies appropriate rural/resource lands to protect Identifies receiving areas and conversion ratios Memorializes the agreement between two jurisdictions Agreement must be approved by both County and City Councils TDR Banks TDR Banks contain funds to buy development rights and store TDR certificates A city may buy TDR Certificates from the County TDR Bank and transfer to their own TDR Bank Developers may purchase TDR Certificates directly from County TDR Bank Development Right TDR Certificate Density Credits $ X The price of a TDR Certificate is set by the TDR Technical Oversight Committee and is not to exceed fair market value Offers to purchase TDR certificates include: Development rights are to be used only inside an identified eligible receiving area Number of development rights to be purchased Location of the receiving site A Purchase and Sale Agreement formalizes transaction Once a TDR Certificate is used, the development right is extinguished 173

174 Transfer of development rights (TDR) is a market-based tool that promotes responsible growth while conserving areas such as farms, forests, or ecologically sensitive areas. This case study provides an overview of the Stadium Apartments project, an example of TDR being used to transfer development from Pierce County to the City of Tacoma. Acres Conserved: 120 Certified TDR Credits: 10 The farmland is owned by PCC Farmland Trust, and is currently being leased to Four Elements Farm. Prior to leasing the farm, the farmers were finding a difficult time locating land in the county to farm on- especially land with water rights still intact. Transferring the development rights from the property allowed for the farmers to utilize land they would not have previously been able to afford. The family farm is currently growing a variety of over 50 crops, and employing five people. Credit: T. Carino Credit: A. Moreno-Sills Developer: Carino and Associates Certified TDR Credits Purchased: 4 The purchase of 4 TDR credits for $38,244 allowed 21 additional units to be added to the Stadium Apartments project. This adds two stories to the mixed-use complex being located in the Stadium District of Tacoma. The purchase of 4 TDR credits increases the cost of the building by only $.17 per square foot, or $ per unit (220,000 sq. ft. and 172 units total). Although this was the first TDR transaction in Pierce County, the developers stated they had no hesitations in using the program. The parcel is located on a compact lot, and increasing the amount of air space utilized made the project financially feasible. TDR allowed for a bonus height increase, at the lowest cost to the bottom line. Carino and Associates also see the use of TDR as an opportunity to contribute to conserving land in the county, which will have a lasting impact. 174

175 175

176 176