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HomeMy WebLinkAbout03/29/00 AGENDA ! CITY COUNCIL AGENDA MARCH 29, 2000 1. CITY COUNCIL STUDY SESSION: 5:00 - 5:30 P.M. A. General Council Business 2. CALL TO ORDER: 5:30 P.M. A. Pledge of Allegiance B. Invocation 3. CONSENT AGENDA A. Minutes of Meeting - March 22, 2000 (#AB00-083) 4. CLAIMS/CHECK REGISTERS 5. COUNCIL MEMBER REPORTS 6. MAYOR'S REPORT 7. LEGISLATIVE REPORT 8. PUBLIC RECOGNITION 9. NEW BUSINESS A. Budget Adjustment Regarding Ivy Green Cemetery Irrigation Project (#AB00-084) B. Budget Adjustment Regarding Warren Avenue Play Field Project (#AB00-085) C. Professional Services Agreement with Lane Powelt Spears & Lubersky (#AB00- 086) 10. ORDINANCES A. Ordinance (First Reading) Amending Chapter 7 of the Bremerton Municipal Code (#AB00-087) 11. PUBLIC HEARINGS - (6:00 P.M. or LATER) A. CLOSED RECORD HEARING and Resolution No. 2747 on Appeal of Planning Commission Decision to Allow a Shoreline Conditional Use Permit (CUP) for a U.S. Navy/PSNS Navigational Dredging and Pier Replacement Project; Appellant: The Suquamish Tribe (#AB00-073) 12. ADJOURNMENT OF MEETING AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: MARCH 29, 2000 ORIGINATING DEPT: CITY COUNCIL MINUTES OF MEETING - MARCH 22, 2000 ORIGINATOR: CAROL ARENDS, PRES I DENT DATE SUBMI'I-TED: MARCH 24, 2000 2. CLEARANCES: (comment on back if necessary) 3. EXHIBITS: ENDORSEMENT__ INFORMATION APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: MAYOR: COUNCIL PRESIDENT: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: 8. RECOMMENDATION: 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION: PULLED__ TABLED~ APPROVED~ DISAPPROVED AMIEd~D__~ COUNCIL DIRECTIVE: DATE: 11. AGENDA BILL NO: 01~--093 2. CLEARANCE COMMENTS: 4. SUMMARY STATEMENT (continued): 5. IMPACT ON NON-PASSAGE: 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: 7. RESEARCH SOURCES: TAPE' #1694 UNAPPROVED DRAFT CITY COUNCIL MEETING MINUTES March 22, 2000 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, 239 4"~ Street, Bremerton, Washington, Wednesday, March 22, 2000, at 5:30 P.M., with Council President Carol Arends presiding. Council members present were Jim Reed, Conrad Esser, David Farr, Mike Shepherd, Ed Rollman, John Law, Cecil McConnell, and Wayne Olsen. Also present were City Attorney Glenna Malanca, Deputy City Clerk Paula Johnston, and Legislative Assistant Lori Smith. The meeting opened with the Pledge of Allegiance led by Council member Cecil McConnell, followed by the invocation given by Deacon Roy Mclnnis of Sinclair Missionary Baptist Church. President Arencl$ made the following announcements: (~1) council held a Pre-Council Session to discuss general Council business in the Council Conference Room; followed by a 15-minute Executive Session to discuss "Litigation" per RCW Chapter 42.30.110(1 )(I); and a 5-minute Executive Session to discuss a "Real Estate Transaction" per RCW 42.30.110(1 )(c). (2) City Council will hold a Closed Deliberation Session immediately following the Council Meeting tonight, in the Council Conference Room, to deliberate their decision and supporting findings and conclusions for the "CLOSED RECORD HEARING Appeal of Planning Commission Decision to allow a Shoreline Conditional Use Permit (CUP) for a U.S. Navy/PSNS Navigational Dredging and Pier Replacement Project; Appellant: The Suquamish Tribe". CONSENT AGENDA A. Minutes of Meeting - March 15, 2000 (#AB00-077) #0035 M/S/C/U (McConnell/Farr) Motion to approve Consent Agenda as presented. Voted in Favor of Motion: McConnell, Law, Rollman, Farr, Esser, Reed, Arends Absent from Vote: Shepherd, Olsen CLAIMS/CHECK REGISTERS Vouchers audited and certified by the auditing officer as required by RCW 42.24.080, and those expense reimbursement claims certified as required by RCW 42.24.090 have been recorded on a listing that had been made available to the Council. #0050 M/S/C/U (Law/McConnell) On March 22, 2000, the Council does approve for payment those vouchers included and further described as follows: 239669 through 239894 in the amount of $330,386.63; and Regular Payroll in the amount of $756,406.67 for the pay period ending 3/15/00. Voted in Favor of Motion: Olsen, McConnell, Law, Rollman, Farr, Esser, Reed, Arends Absent from Vote: Shepherd COUNCIL MEMBER REPORTS David Fart commented on the Iow turnout for the District 6-7-8 meeting held Monday night, where Cris Gears and members of "Y2R" lead a discussion on the proposed community center, and Bob Duprie from Diamond Parking was available to answer questions regarding downtown parking. He thanked those who did attend, and asked his constituents to call the City Council office with any ideas they may have to increase attendance. TAPE #1694 City Council Reg. Mtg. Minutes March 22, 2000 Page 2 of 4 Ed Rollrrlan congratulated local citizens Fred Schoneman, Larry Dickerson, and Don Larson on their recent nominations for the "Jefferson Award" in recognition for their service to the community. He also reported on the first meeting of the Mayor's Parking Committee, which was formed to resolve some parking issues in the downtown area. Lastly, he provided an update on the 11"~ Street Sewer Repair Project, which should be completed by March 24 and new stdping completed by March 27. Mike She.~herd arrived at the meeting approximately 5:40 P.M. John Law reported on the very good turnout for the District 3 meeting held last evening, and voiced his appreciation for the input and the exchange of ideas from those who attended. President Carol Arend$ Was also disappointed in the Iow turnout at the District 6-7-8 meeting, which she felt may have been affected by the last-minute change for the meeting date. She asked citizens from these districts to advise which night of the week they preferred, as well as any other comments. MAYOR'S REPORT Mayor Horton had an opportunity to serve as a Judge at the Crown Hill Elementary School's Science Fair, and applauded the students and school administration for their efforts. She announced a Free Public Concert by Navy Band Northwest "Cascade" tonight at the Bremerton High School Performing Arts Center beginning at 7:00 P.M. Lastly, she sadly reported on the death of a 6-year old boy over the weekend, which the Police now believe may have been due to child abuse. She urged people in the community to report any known or suspected incidents. LEGISLATIVE REPORT - There was no report this evening. It was announced that the official ballot title for the Parks & Recreation Bond was submitted to the County Auditor on Monday, therefore, Public Comment will not be allowed on this subject. PUBLIC RECOGNITION Elizabeth Buell attended a recent presentation on the proposed recreation center, which she found very impressive, and encouraged citizens to support the project. Gordy Byrd expressed his love for everyone, and reminded people to appreciate each other. John Lyle, representing West Sound Arts Council, encouraged attendance at three upcoming events, "An Affair to Remember" on April 7; Spring Tea & Fashion Show of Vintage Clothing on April 8; and an vignette exhibit celebrating the "Traditions of Serving Tea" on April 8. As the President and Co-Chair for Evergreen Children's Theater, he also invited the public to attend a performance of "Lazer Vaudeville" this Saturday at 2:00 P.M. at the Admiral Theater. The following item (gE) was moved up on the Agenda, and will be the first NEW BUSINESS item: 9E - LABOR AGREEMENT BY AND BETVVEI~N THE CITY OF BREMERTON AND THF BREMERTON POLICE OFFICER'S GUILD. #AB00-08?: Human Resources Director Carol Conley reported that pursuant to RCW 41.56, negotiations have concluded between representatives of the City and the Bremerton Police Officer's Guild resulting in the attached Labor Agreement. These negotiations have been discussed with Council in Executive Session. This Labor Agreement replaces the current one, which expired on December 31, 1999. The new Labor Agreement's term is January 1, 2000 through December 31, 2000, and has been ratified by the Union's membership. Council approval is recommended, and required to implement the new agreement. Police Chief Rob Forbes TAPE #1694 City Council Reg. Mtg. Minutes March 22, 2000 Page 3 of 4 discussed other changes, including a 50-hour cap imposed on comp-time, and what he considered to be one of the most important achievements in negotiating this contract for management from a non- economic viewpoint, the obtainment of flexibility in work hours for Specialty Unit employees such as Bike Patrol, Traffic, and Canine. There were no comments from the public. #0677 M/S/C/U (McConnell/Olsen) Move to approve the Labor Agreement by and between the City of Bremerton and the Bremerton Police Officer's Guild January 1, 2000 through December 31, 2000, and make the necessary administrative amendments to the 2000 budget. 9A - EXTENSION OF PROFESSIONAL SERVICES AGREEMENT WITH MARTEN & BRQWN #AB00-078: City Attorney Glenna Malanca reported that the City has retained counsel to provide legal services in areas of expertise. Upon occasion a new law firm is asked to extend their services for additional time or compensation when the City is satisfied with the current services being received and are in litigation. Marten & Brown is representing the City in the Tal Price/A&K Trust Lawsuit regarding Shellfish harvesting in Dyes Inlet. Marten & Brown will be asked to provide additional services for sum not to exceed an additional Fifty-Thousand Dollars ($50,000). Ms. Malanca further noted that this matter is currently before the Court on a "Motion for Summary Judgement", and because there are multiple judgements by both the plaintiffs and the defendants, it is hoped there will soon be a conclusion on this case, and she will not have to return for additional authorization. There were no comments from the pubfic. #0737 M/S/C (Reed/McConnell) Motion to approve the amendment to the Professional Services agreement with Marten & Brown, and to increase compensation not-to-exceed an additional Fifty Thousand Dollars ($50,000), for a total contract amount of $125,000. Voted in Favor of Motion: Rollman, Shepherd, Esser, Reed, ©lsen, I~cConnell, Law, Arends Abstained on Motion: Farr 9B - BID AWARD FOR $R304 TRANSPORTATION IMPROVEMENT PROJECT, GATEWAY PHASE, PORTER STREET TO MONTGOMERY AVENUE. #AB00-079: Project Manager Lynn Price stated that bids were opened for the SR 304 Transportation Improvement Project, Gateway Phase contract on March 8, 2000. This contract provides for the realignment and construction of the SR 304 roadway from Porter Street and Cambrian Avenue to Burwell Street and Montgomery Avenue. The contract work includes removing existing streets and alleys and constructing new roads, sidewalks, storm drainage, ornamental street lighting, traffic signals, permanent signing, fencing, landscaping, and irrigation. Two bids for this project were received. Stan Palmer Construction, Inc. was the lowest responsive bidder with a bid of $4,243,253.28. The Engineer's estimate for the project is $4,694,296.14. The action before the City Council is approval of the contract with Stan Palmer Construction for the SR 304 Transportation Improvement Project, Gateway Phase contract. It was verified that funding authorization has been received from the Federal Highway Administration, and the Transportation Improvement Board. There were no comments from the public. #0850 M/S/C/U (Farr/Olsen) Move to approve award of $4,243,253.28 bid with Stan Palmer Construction, Inc. for the SR 304 Transportation Improvement, Gateway Phase contract, and authorize the Mayor to execute the same. TAPE, #1694 City Council Reg. Mtg. Minutes March 22, 2000 Page 4 of 4 9C - CONTRACT CHANGE ORDER AUTHORIZATION FOR $R304 .TRANSPORTATION IMPROVEMENT PROJECT, GATEWAY PHASE, #AB00-080: Project Manager Lynn Price stated the contract bid from Stan Palmer Construction, Inc. for the SR 304 Transportation Improvement Project, Gateway Phase, is $4,243,253.28. Staff requests, in accordance with BMC Chapter 2.76.500(b)(2), that the City Council provide the Mayor with $250,000 of change order authority. BMC Chapter 2.76.500(a)(4) only allows for an increase of 20% of the contract price, or $30,000, whichever is less, which is inadequate for a contract of this size and complexity. The requested $250,000 of change order authority is less than 6% of the contract bid amount. This additional change order authority will allow for the expedient processing of change orders during the construction of the roadway. Council was assured that detailed updates on the status of change orders in process would be provided in the Department's Monthly Update Report. There were no comments from the public. Mr. McConnell made a suggestion for City Council to review and possibly make a change to BMC Chapter 2.76.500, so that Council approval is not required for every necessary change order. #1002 M/S/C/U (McConnell/Law) Motion to authorize the Mayor to execute change orders on the SR 304 Transportation improvement Project, Gateway Phase contract to a limit of $250,000 for a total contract amount not to exceed $4,493,253.00 in accordance with BMC Chapter 2.76.500(b)(2). 9D - PROFESSIONAL SERVICES AGREEMENT WITH WASHINGTON TIMBERLAND MANAGEMENT FOR HARVEST MANAGEMENT AND MARKETING, #AB00-081: Gene Sam_oley, Director of Public Works & Utilities, stated that Washington Timberland Management (WTM) will assist in completing Forest Practices applications, conduct field marking, provide logging plans, operations management, and marketing for highest value, on selected growth timber stands within Water Utility forest land as specified by the Forestry Manager. Harvest operations will consist of both even-age and uneven-age types. The Forestry Manager will determine residual stocking and leave- tree selection. This action will further the overall goals of the Forest Management Plan and will substantially contribute to the Water Utility's revenue for 2000. VVTM has been under contract with the City on prior occasions for special logging operations, and have successfully managed timber harvest. This year, a thinning approach will be used on approximately 350 acres of timberland, with a residual of approximately 120 trees per acre. Because this is "selective harvesting", on-site supervision is needed. WTM is excellent at marketing timber, and even with their 9% fee, the value of timber revenue to the City is estimated at approximately $700,000. There were no comments from the public. #1180 M/S/C/U (McConnell/Law) Move to authorize the Mayor to execute the attached Professional Services agreement. With no further business, meeting adjoumed at 6:20 P.M. PAULA JOHNSTON, Deputy City Clerk CAROL ARENDS, City Council President City of Bremerton PJ/CA/Is/cg C: Normal Distribution, File AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJEC'I': Budget Adjustmem FOR AGENDA OF: March 29, 2000 regarding Ivy Green Cemetery ORIGINATING DEPT: Parks & Recreation Irrigation Project ORIGINATOR: Jodi Wroblewski, Ass't Director DATE SIJB~: March 21, 2000 2. CLEARANCES: 3. ~ITS: (Commeat on hack if necessary) /~ ]~]' ~ Parks & Recreation Dire~or:./~4~.~__~ · Budget Adjustment City Treasurer: ~-x %[ Fiscal & Budget Committee: ~ 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: This budget adjustment will provide for the use ora portion of Ivy Green Cemetery perpetual Care monies to construct an irrigation system. This will reduce the ongoing maintenance labor at the cemetery and improve the conditions of the grounds. 8. RECOMMENDATION: Motion to approve the budget adjustmem. 9. RESPONSIBLE OFFICIAL: Cfis Gears ENFORCEMENT OFFICIAL: Cris Gears EXPIRATION DATE: REVIEW DATE: I0. NOTICE OF ACTION ~l~ ~ PULLED TABLED APPROVED DISAPPROVED COUNCIL DIRECTIVE: DATE: 2. CLEARANCE COMMENTS: IMPACT OF NON-PASSAGE: The Departmem would not be able to go forward with this project. The Departmem would continue to manually water the cemetery. 6. IMPACT ON STAFFING, BUDGETS. FACILITIES, EQUIPMENT OR OTHER RESOURCES: This will reduce the ongoing maintenance labor at the cemeterv and improve the conditions of the grounds. It will reduce water usage due to an automated system that can be pro~ammed to irrigate at the optimal conditions. 7. RESEARCH SOURCES: CITY OF BREMERTON BUDGET ADJUSTMENT REQUEST Requesting Department: CEMETERY PERPETUAL Adjustment Number:. 00-8 CARE FUND I Approval Authority Required: r-]Treasurer r-]Mayor [- Fiscal & Budget [--~Council SOURCE OF FUNDS: USE OF FUNDS: Description Amount Description Amount REDUCE ENDING CASH 34,500 IRRIGATION PROJECT 34,500 NARRATIVE: This adjustment will procide for the use of a portion of the Ivy Green Cemetery perpetual care monies to construct an irrigation system. This will reduce ongoing maintenance labor at the cemetery and improve the condition of the grounds. Department Head Signature Date I~recto'~S-igr~ture Date Treasurer Comments: Treasurer's Signatu'b'm--..~ D~e Mayor Comments:  ['---] Not Recommended Recommended ~ Approved ~ Denied yor's Signature Dat~ Fiscal & Budget Committee Comments: Approved r-~ Denied Fiscal & Budget Committee Signature Date AGENDA BILL BREMERTON CITY COUNCIL 1. S~CT: Budget Adjustment FOR AGENDA OF: March 29, 2000 regarding Warren Avenue Playfield ORIGINATING DEPT: Parks & Recreation Project ORIGINATOR: Cris Gears, Director DATE SUBMITrED: March 21, 2000 2. CLEARANCES: 3. EXHIRITS: (Commeat on back if n~sary) Parka & Recreation Director: /'~~/~ * Budget Adjustment City Treasurer~ Fiscal & Budget Committee: / Operations ENDORSEMENT X INFORMATION APPROVED BY COUNCIL PRESIDENT FOR SUBMITYAIL,: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: This budget adjustmem will provide for the upgrade of park facilities at the Warren Avenune Playfield using grant money received fi:om the IAC-YAF with matching funds coming fi:om the profits of Gold Mountain complex. 8. RECOMMENDATION: Motion to approve the budget adjustment. 9. RESPONSIBLE OFFICIAL: Cris Gears ENFORCEMENT OFFICIAL: Cris Gears EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED TABLED APPROVED DISAPPROVED COUNCIL DIRECTIVE: DATE: 11. AGENDABILL#: 2. CLEARANCE COMMENTS: 5. IMPACT OF NON-PASSAGE: The Departmem would not be able to go forward with this project, and would loose the grant. 6. IMPACT ON STAFFING: BUDGETS, FACILITIES~ EQUIPMENT OR OTHER RESOURCES: The rehabilitation of this field will ~eatly improve the playing conditions for the youth that use the field. 7. RESEARCH SOURCES: CITY OF BREMERTON BUDGET ADJUSTMENT REQUEST Requesting Department: ROOSEVELT TRUST FUND Adjustment Number:. 00-6 I Approvai Authority Required: ~ Treasurer ~ Mayor ~ Fiscal & Budget F-~ council SOURCE OF FUNDS: USE OF FUNDS: Description Amount Description Amount Increase Revenues: Increase Expenditures: lAC Grant 61,030 Warren Ave. Playfield Project 10,200 Contribution from Golf Fund 74,170 Increase Ending Cash 125,000 135,200 135,200 NARRATIVE: This adjustment will provide for the upgrade of park facilities at the Warren Ave. Playfield using grant money received from the lAC with matching funds coming from the profits of Gold Mountain Golf Complex. /? Department Head Signature Date E:tire'ctor Signatu're- Date Treasurer Comments: F--] Recommended Treasurer's Signature ~ Date Mayor Comments: F~ Recommended ~ Not Recommended F--~ Approved r-~ Denied '~. ~,~/ ")//'2~ Mayor's Signature Date Fiscal & Budget Committee Comments: r-~ Approved F-~ Denied Fiscal & Budget Committee Signature Date A~ENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: FOR AGENDA OF: March/iW~%~000 Professional Services Agreement ORIGINATING DEPT: Legal~ ORIGINATOR: Glenna'Ma.1/anca, City Attorney DATE SUBMITTED: March 8, 2000 2. .C?.~a. RANCES: (Comment on back if necessary) 3. EXHIBITS: ~ /~ ~=~- Professional Services Agreement: ,~///~ Lane mowell Spears & Lubersky ~%~i~ca~ &/~udget Committee Operations Committee ENDORSEMENT~ INFORMATION [] APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: 4. ~U~ARY STAT~ENT AND REQUIREMENT FOR COUNCIL ACTION: The City has retained counsel to provide legal services with regards to 1-695. Upon occasion a law firm is asked to provide services based on their expertise on current issues involving the City and are asked to extend their services for additional time when the City is satisfied with the current services being received. To date, the City Attorney has authorized payment of $9768.37, out of Legal Department's 1999 budget. Lane Powell Spears & Lubersky is being asked to provide additional services ending December 31, 2000, for an additional amount not to exceed $20,000. 8. RECOMMENDATION: ~ to approve professional services agreement of Lane Powell Spears & Lubersky for an amount not to exceed $20,000, ending December 31, 2000. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: ~ ~ REVIEW DATE: 10. NOTICE OF ACTION PULLED [] TABLED [] APPROVED [] DISAPPROVED [] AMENDED 2. ,C*r.~VJ~.NCE COl~m~S: 5. IMPACT OF NON-PASSAGE: Overload upon City resources to detrimental of other responsibilities. City's effective representation as the 1-695 case is being determined at the Superior Court level. The State Supreme Court is expected to hear this case in June of this year. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTR~R RESOURCES: The Legal Department proposes to expend $10,000 of its outside counsel budget and Public Works will expend $10,000 from their professional services budget. 7. RESEARCH SOURCES: PROFESSIONAL SERVICES AGREEMENT LANE POWELL SPEARS & LUBERSKY The City of Bremerton ("City") and Jim Robart, Lane Powell Spears & Lubersky ("Retained Counsel"), referred to collectively as the "Parties," enter into the following Agreement for professional services: I. Scope: The Retained Counsel will perform necessary legal services and support with regards to 1-695 under the direction of the City Attorney. If the Scope of Work provides for unspecified additional services, the City may request, such services shall only be performed upon the express, written request of the City. H. Term: This Agreement commences on the date of execution and terminates on December 31, 2000. III. Compensation: In consideration of the services provided pursuant to this Agreement, the City shall pay Retained Counsel in an amount not to exceed Twenty Thousand Dollars ($20,000), at an hourly rate not to exceed $ o, zo? per hour. IV. Hold Harmless: Retained Counsel shall be solely responsible for the acts and failures to act of its personnel which arise in any way out of performance of this Agreement. Retained Counsel agrees to defend, indemnify, and hold harmless the City and its officials and employees fi.om and against all liability, loss, damages, and expenses, including costs and attorneys' fees, resulting from actions, claims, and lawsuits arising or alleged to have arisen, in whole or in part, out of or in consequence of the acts or failures to act of Retained Counsel, its employees, its subcontractors, its agents, or its assigns in the performance of this Agreement. The City and Retained Counsel have specifically negotiated Retained Counsel's waiver of its immunity under Title 51 RCW, which is hereby waived for purposes of Retained Counsel's indemnification and hold harmless of the City, including the duty to defend. This provision shall be inapplicable to the extent such action, claim, or lawsuit is judicially found to arise solely ~om the acts or failures to act of the City. V. General Conditions: A. Reports and Information: When requested by the City, Retained Counsel shall furnish periodic reports and documents on matters covered by this Agreement. The reports and documents shall be furnished in the time and form requested. B. Entire Agreement: This Agreement and its Exhibits constitutes the entire agreement between the Parties, and the Parties acknowledge that there are no other agreements, written or oral, that have not been set forth in the text of this Agreement. Bremerton/Lane Powell Spears & Lubersky 02/28/00 - Page 1 I ~ C. Severability: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and effect. D. Modification: This Agreemem may only be modified by written instmmem signed by both Parties. E. Notices: Notices shall be in writing and delivered to the following addresses: Glenna Malanca Mr. Jim Robart City Attorney Lane Powell Spears & Lubersky 239 Fourth Street 1420 - 5th Avenue, Suite 4100 Bremerton, WA 98337 Seattle, WA 98101-2333 F. Waiver: Failure to enforce any provision of this Agreemem shall not be deemed a waiver of that provision. Waiver of any right or power arising out of this Agreement shall not be deemed waiver of any other right or power. G. Compliance with Laws: Retained Counsel shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreemem. H. Choice of Law and Venue: This Agreement shall be interpreted according to the laws of the State of Washington. Any judicial action to resolve disputes arising out of this Agreement shall be brought in Kitsap County Superior Court. I. Attorneys' Fees: The substantially prevailing Party in any litigation arising out of this Agreement shall be entitled to its reasonable attorneys' fees and court costs. VII. Nondiscrimination: Retained Counsel shall not discriminate in employmem or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, or disability, except for employment actions based on bona fide occupational qualification. VIII. Termination: This Agreemem may be terminated, at will, by either Party upon 30 days' notice to the other Party. This Agreement may be immediately terminated for cause by a Party if the other Party substantially fails to perform through no fault of the terminating Party, and the non-performing Party does not commence correction of the failure of performance within five days of the terminating Party's sending notice to the non-performing Party. Upon termination the City will be entitled to reports showing the status of all items listed in the Scope of Work current through the termination date. // // // Bremerton/Lane Powell Spears & Lubersky 02/28/00 - Page 2 CITY OF BREMERTON LANE POWELL SPEARS & LUBERSKY By: Lynn S. Horton By: ~ames L. Robart its: Mayor its: Co-Managing Partner VED AS T0/~ORM: OL"~NN'~-MALAN CA City Attorney Bremerton/Lane Powell Spears & Lubersky 02/28/00 - Page 3 AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: oF Oc~4~C~ FOR AGENDA OF: March 29, 2000 Amending Chapter 7 of the Bremerton ORIGINATING DEPT.: Police Department Municipal Code ORIGINATOR: Teri Olson, ACO DATE SUBMITTED: March 22, 2000 2. CLEARANCES: (Comment on back if necessary) 3. EXHIBITS: Ro.~.F'6r~s; 'POLICE CH. IE~ ~C~ & B~G~T CO~ITTEE ~ OPE~T~6ff~, CU~ITTEE ENDORSEMENT [ ] INFO~ATION [ ] APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: ~YOR __ COUNCIL PRESIDENT ~dC~ ~J~~d~/ 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: Amendments to Chapter 7 of the Bremerton Municipal Code to clarify and address problem areas identified by Animal Control in the current code. 8. RECOMMENDATION: Approve Ordinance No. amending Chapter 7 of the Bremerton Municipal Code! C 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION ] PULLED [] TABLED [] APPROVED [] DISAPPROVED [] AMENDED [] COUNCIL DIRECTIVE: 11. AGENDA BILL NO.: 2. CLEARANCE COMMENTS: CHAPTER 7 - Agenda Disk - 3/21/00 5. IMPACT OF NON-PASSAGE: Animal Control will continue to work under the current codes but without authority to serve the public in the areas that the amendments address. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: 7. RESEARCH SOURCES: CHAPTER 7 - Agenda Disk - 3/21/00 ORDINANCE NO. AN ORDINANCE amending Chapter 7 of the Bremerton Municipal Code. THE CITY OF BREMERTON DOES HEREBY ORDAIN: Section 1. Amendment. Section 7.04.200 of the Bremerton Municipal Code shall be amended as follows: 7.04.200 DEFINITION. As used in this title, except where a different meaning is plainly apparent from the context, the following definitions apply: (a) "Abandon" means the act of leaving an animal in a situation where the conditions present an immediate, direct and serious threat to the life and safety of the animal. (b} "AlloW' means to permit by neglecting to restrain or prevent. (c)~ "Animal control authority" means the Bremerton Police Department, acting alone or in concert with other municipalities for the enforcement of the animal control laws of the city and state for the shelter and welfare of animals. (d).(..~ "At large" or "running at large" means to be off the premises of the custodian and not physically restrained by the custodian or by a person authorized by the custodian. (e)~ "Custodian" means a person who owns, keeps, harbors, or maintains an animal. .(.~ "Dangerous dog" means any animal that according to the records of the animal control authority (i) inflicted severe iniury on a human being without provocation while on public or private property ~~iiii~ii!~i~!l~ii~i~}~!~i 0.[..(!i).....h.a.s...k!lle~ .a d?.me.s, tic a.n. im~l. without I~rovocation while off the owner's i~rot~ert~/ ~i~;¢~!~D::i~!]~::;~i:.i~¢;;.f~!D~i!~:.ii@~..e...~ or ( ) has been prev ous y found to be potentially dangerous, the owner havin~ received notice of such potential and doq subsequently endangers the safety of humans or domestic animals. ~;~ "Detain" means to place an animal in custody. ~ "Disposed of in a humane manner" means euthanized by a lethal dose of sodium pentobarbital or adoption. ~ "Domestic animal" means any animal, except livestock, commonly kept as a household pet that lives and breeds in a tame condition. (i) "Feral Cat" means a cat that is not able to be approached or handled by a human and has no evidence of an owner. (k)~!i~ "Fowl" includes chickens, roosters, geese, and ducks. ~ "Harboring" means feeding, sheltering or confining for more than 24 hours on the property one owns, occupies, or controls. (m)~).".: "Holding period" means 72 hours, commencing at the close of a regular business day on the day of detainment, excluding days the City animal shelter is not open to the public. n~o.1~ "Household Pets" means dogs, cats, ferrets, rabbits, pigeons, mice, hamsters, gerbils, parakeets, canaries, finches, and other similar exotic birds, reptiles, amphibians, fish and other similar animals kept for companionship or for personal enjoyment not otherwise prohibited by BMC 7.08.100 (k). .~ "Leash" includes a strong cord, thong, or chain not more than eight feet (8') in length by which an animal is controlled by the person accompanying it. (p) "Potentially dangerous do,q" means any do,q that when unprovoked; (1) Inflicts a bite or bites upon a human or a domestic animal either on public or private property, or (2) Chases or approaches a person upon the streets, sidewalks, or any other public grounds in a menacinq fashion or apparent attitude of attack, or any do.q with a known propensity, tendency, or disposition to attack unprovoked, to cause injury, or otherwise to threaten the safety of humans or domestic animals, or (3) Causes iniury to or otherwise threatens the safety of humans or domestic animals. Further delineation under section 7.07.025. (q)i~ "Proper enclosure", unless otherwise provided herein, means building, pen, or other structure suitable to prevent the entry of animals or young children, to prevent the animal from escaping, and to provide protection from the elements. (r) "Stray" means any do.q, cat, or animal appearing or remaininq in a nei,qhborhood or any public place without an apparent owner or home. (s)~ "Trespassing" means any animal, which enters upon the property of another person, without the authorization of the lawful occupant. Section 2. Amendment. Sections 7.05.100 and 7.05.200 of the Bremerton Municipal Code shall be amended to read as follows: 7.05.100 COMPLAINT FILING AND INVESTIGATION. The animal control authority shall keep records relating to seizure, impoundment, violations, and complaints concerning animals, and records of dangerous and potentially dangerous dogs. Bremerton police officers or animal control officers shall investigate citizen complaints regarding animals, issue citations for violation of this title, and make initial determinations as to dangerous or potentially dangerous dogs. Any citizen may 2 request that a particular dog be declared dangerous or potentially dangerous by filing an affidavit or certified statement setting forth all pertinent known information about such animal with the animal control division of the police department. 7.05.200 VIOLATION - PENALTY. Unless another penalty is expressly provided for, all acts, conduct, and events prohibited or declared unlawful in this Title shall constitute civil infractions and subject to the provisions of BMC Chapter 1.12. The base penalty per day or portion thereof for each violation is as follows: (a) First Violation $$600 (b) Second Violation for same offense. $60.00 (c) Additional Violation for same offense in excess of two. $79.00 Each day of violation shall be deemed a separate infraction. Section 3. Amendment. Section 7.06.300 of the Bremerton Municipal Code shall be amended to read as follows: 7.06.300 ISSUANCE OF LICENSES. The City Treasurer or animal control authority shall issue licenses to persons applying therefor upon payment of the license fee and to issue a tag for each dog or cat licensed. The license application shall be dated and numbered and shall bear the name of Bremerton, Washington, the name and address of the owner or custodian of the dog or cat licensed, the name of the dog or cat, and a description of the dog or cat including its age and sex and include a certification that the dog or cat has been vaccinated as required by BMC 7.06.100. The tag shall bear the name of Bremerton, Washington, a serial number corresponding with the number of the license application, and the date of expiration. Every dog and cat shall be required to wear a collar or harness with a current license attached. Dogs ~i!~ without current license tags may be impounded. Section 4. Amendment. Section 7.07.100, 7.07.200, 7.07.300, 7.07.400, 7.07.425, 7.07.450, 7.07.435, 7.07.525, 7.07.550, 7.07.700, 7.07.800 7.07.825, 7.07.850, and 7.07.900 of the Bremerton Municipal Code shall be amended to read as follows: 7.07.100 DECLARATION AND NOTICE. Whenever the animal control officer determines, by his or her records or upon investigation, that a dog should be classified as potentially dan.qerous or dangerous, the officer shall enter such declaration in his or her records and shall personally serve or by certified mail, return receipt requested, to the address listed on the animal license within seven days of the declaration beinq made, to the custodian of such dog, informing the custodian of the applicable laws and ordinances. Service, if by mail, shall be considered completed three days after mailin.q of the notice. If the custodian is unknown, an animal control officer shall make reasonable efforts to notify the custodian of the officer's written declaration. Such written notice shall include: (a) A description of the dog; (b) The name and address of the alleged custodian of the dog; (c) The whereabouts of the dog if not in the actual control of the custodian; (d) The facts, incident(s), and date(s) upon which the declaration is based; (e) The procedure allowed by law to contest such classification; (f) The penalties for violation of restrictions pertaining to that classification. A dog shall not be declared dangerous or potentially dangerous if the threat, injury, or damage was sustained by a person who, at the time, was committing a trespass or other tort upon the premises occupied by the custodian of the dog, was committing a crime against the custodian, was teasing, attacking or harming the dog, or has in the past been observed to have teased, attacked or harmed the dog. 7.07.200 HEARING. The custodian of a dog declared potentially dangerous or dangerous, may file a written request within seven (7) ~days from the date of receipt of such notice for a hearing before the Director of Bremerton Animal Control (hereinafter Director) or his or her desiqnee as the hearinq officer. The hearinq officer shall be someone who did not participate in makinq the potentially dangerous or danqerous doq determination. The owner or custodian's appeal must be in writinq and shall be filed with Animal Control. (a) Hearinq before Director. Upon receivinq the written notice of appeal the director shall promptly schedule an appeal hearinq and provide written notice of the hearinq before the Director, the Animal Control shall have the burden of proving that the dog is potentially dangerous or dangerous by a preponderance of the evidence. The Director shall issue a written decision to the appealing do.q owner or custodian that either sustains or reverses the animal control officer's declaration. The decision by the Director shall be the final decision of the Bremerton Animal Control. If the declaration is sustained, the appealing dog owner or custodian shall be notified of the right to appeal. (b) Appeal of Director's Decision. An owner or custodian of a doq declared potentially dangerous or danqerous by the Bremerton Animal Control may appeal the declaration if the Director sustains the animal control officer's declaration. A written appeal shall be filed with the clerk of the hearinq examiner pursuant to BMC 2.62.045 within seven (7) working days after the date of the Director's written decision. (c) Hearinq Examiner hearinq. Upon receivinq a written appeal from an owner and/or custodian of a doq declared potentially dangerous or dangerous, the clerk of the hearinq examiner shall promptly set a date for a hearinq of the appeal. Written notice of the time, date and place of the appeal hearinq shall be delivered or mailed to both the appellant owner or custodian of the doq declared potentially dangerous or dangerous and to the respondent animal control. The notice of the appeal hearinq shall be provided at least ten (10) workinq days prior to the hearinq. (d) Burden of Proof and standard of review. It shall be the appellant doq owner or custodian's burden to prove that the decision by the Director that a doq is potentially dangerous or danqerous is arbitrary and capricious. (e) Hearinq Examiner Decision. (1) If the hearinq examiner finds that the decision of the Director was arbitrary and capricious, the declaration shall be rescinded and any restrictions imposed shall be annulled. No court costs shall be assessed against either the City of Bremerton or the Bremerton Animal Control in such an instance. (2) If the hearinq examiner finds that the decision by the Director wa~ not arbitrary and capricious, the court shall impose court costs on the appellant and may impose additional restrictions on the doq. 7.07.300 FAILURE TO CONTROL A DOG DECLARED POTENTIALLY DANGEROUS; DECLARATION OF DOG AS DANGEROUS. (a) Misdemeanor. After a doe is declared potentially dan,qerous, ~'...,";=.~i the custodian of the dog shall be guilty of a misdemeanor if such a dog again (i) bites, chases or attacks a human or a domestic animal either on public or private property or (ii) chases or approaches a person upon the streets, sidewalks, or any other public grounds in a menacing fashion or apparent attitude of attack, or (iii) causes injury to or otherwise threatens the safety of humans or domestic animals. This section shall not preclude immediate criminal prosecution under RCW 16.08.100(3) in a first bite situation causing severe injury or death of any human. (b) Declaration of a Doq as Danqerous. If the owner and/or custodian of a potentially dangerous doq is found guilty of violating subsection (a) of thi.s section, the municipal court shall make a further determination as to whether the doq should be declared danqerous. (c) In addition to citinq the custodian for violation of this chapter, the animal control officer shall immediately impound any dangerous or ootentially dangerous doq pursuant to BMC 7.08.200 of this code. (d) If any dangerous dog cannot be impounded, such dog may be slain by any police officer or animal control officer. 7.07.400 REGISTRATION OF DANGEROUS OR POTENTIALLY DANGEROUS DOGS REQUIRED. (a) The custodian of a dog declared to be dangerous or potentially dan,qerous Level 3, shall register the dog within fifteen (15) days of the declaration with the animal control authority; it is a misdemeanor for a custodian to have a dangerous dog or potentially dangerous Level 3 doq within the City of Bremerton without a valid certificate of registration in effect from the animal control authority. (b) The annual registration fee for a dangerous or potentially dangerous Level 3 dog is $100.00. This fee is in addition to the regular licensing fees. The initial registration fee shall be prorated according to the number of months remaining in the registration year. A certificate may be renewed without additional fee upon a custodian's change of address if the custodian provides the animal control officer with evidence that all conditions necessary for the issuance of a valid certificate of registration are met at the new address within seven (7) days of that change. 7.07.425 REGISTRATION - GROUNDS FOR ISSUANCE. The animal control officer shall issue a numbered certificate of re,qistration, in a form to be provided by the officer, to the custodian of a potentially dan,qerous Level 1 or Level 2 do,q. The animal control officer shall issue a numbered certificate of registration to the custodian of a dangerous or potentially dan,qerous Level $ dog if the custodian presents to the officer sufficient evidence of a proper enclosure to confine such animal and the posting of the premises with a clearly visible warning sign that such animal is on the property. As an alternative to confinement within a proper enclosure, as that phrase is defined in RMC 7.04.200(n), a dangerous dog or potentially dangerous Level 3 doq may be confined indoors subject to BMC 7.07.430. An animal control officer shall make an on-site inspection of the applicant's site for keeping the dangerous or potentially site is enclosed and posted. Such dangerous Level 3 dog to ensure that th..e .................... .p.~operly inspection shall occur within fifteen (15) ~ii!~ days of the animal being declared dangerous or potentially dangerous Level 3. In addition, the custodian shall conspicuously display a sign with a warning symbol that informs the public of the presence of such animal, and provide either: (c) A surety bond in a form acceptable to the City's Risk Manager in the sum of at least $500,000.00, payable to any person injured by the dangerous or potentially dangerous Level 3 dog and containing a provision that the bond may not be cancelled, terminated, or allowed to lapse without ten (10) days prior written notice to the animal control authority; or (d) A policy of liability insurance, such as homeowner's insurance, in the amount of at least $50,000.00, insuring the custodian for any personal injuries inflicted by the dangerous dog or potentially dan,qerous Level 3 doq. Such policy shall contain an additional provision requiring the insurance carrier to notify the City within thirty (30) days of any cancellation, termination, or expiration of such liability insurance. 7.07.430 CONFINEMENT INDOORS. No dangerous dog or potentially dan.qerous Level 3 doq shall be kept on a porch, patio, or in any part of a house or structure which would allow such dog to exit such building on its own volition. In addition, no such animal shall be kept in a house or structure where the windows are open or when screen windows or screen doors are the only obstacle preventing the dog from exiting the structure. 7.07.435 PROPER ENCLOSURE REQUIRED. The custodian of any dangerous or potentially dan.qerous Level 3 dog shall provide a locked enclosure with six (6) feet high sides and a secured top. If the pen or structure has no bottom secured to the sides, the sides must be imbedded into the ground no less than one foot. Such a structure must be constructed of chain-linked fencing or other material of such strength and construction that the dog cannot chew through or break or dig out of the enclosure. Any gates or entrances to the structure must be of similar construction and the entire structure must be so designed so that the dog cannot get out. The area of enclosure shall be no less than 225 square feet, with no less than 15 feet per side. The enclosure shall be set back at a sufficient distance or so covered that the dog does not have visual access to a public right-of-way. 7.07.525 IMPOUND OF DANGEROUS AND POTENTIALLY DANGEROUS DOGS- ~!~i~ii~i~i~.~- CONDITIONS - HEARINGS (a) Any dangerous or potentially dangerous Level 3 dog shall be immediately impounded ~~t.'".~ by an animal control officer if the: (1) Dog is not validly registered under this chapter; (2) custodian does not secure the liability insurance coverage required under this chapter; (3) dog is not maintained in the proper enclosure; (4) dog is outside of the dwelling of the custodian, or outside of the proper enclosure and not under physical restraint of the responsible person; (5) the dog attacks or bites a person or domestic animal. In addition, the custodian shall be guilty of a gross misdemeanor. (b) If a dangerous or potentially dangerous dog of a custodian with a prior conviction under this chapter attacks or bites a person or another domestic animal, the dog's custodian may be prosecuted pursuant to RCW 16.08.100(2). In addition, the ~:..~~ dog shall be immediately confiscated by an animal control officer, placed in quarantine for the proper length of time, and thereafter destroyed in an expeditious and humane manner. (c) In the event that a danqerous or potentially dangerous dog is impounded pursuant to this section, a hearing shall be held within ten (10) business days by the Director to determine whether the doq should be returned to the owner or custodian, forfeited by the owner or custodian, or euthanized by the animal control. Notice of the hearing shall be by personal service or by regular and certified mail, return receipt requested, to the address listed on the animal license. Service, if by mail, shall be considered completed three days after mailinq of the notice. If the custodian is unknown, an animal control officer shall make reasonable efforts to identify and personally serve the owner or custodian. No doq shall be released to the custodian or owner until all applicable impound fees and daily boardinq fees are paid. An owner may prevent the doq's destruction by takin.q the following steps within seven (7) days of the director's decision: (a) petitioninq the hearinqs examiner for the animal's immediate return subject to court imposed conditions, and (b) posting the boarding fees in advance, in fourteen-day increments, and continuinq for the entire time the dog is placed in the shelter facility regardless of the owner's decision to appeal to the hearinq examiner or to the superior court. A doq is not released, and an appeal is not heard until the owner has paid the full boardinq fee owinq to the shelter facility. The boarding fee is not refundable regardless of the outcome of an appeal. The shelter facility may euthanize a doq if its owner fails to pay the full board fee within fourteen days of receivinq notice of the determination by the animal control authority, regardless of the owner's decision to appeal, or if the owner fails to maintain payment of the boardinq fee. Any boardinq fees required by this section shall also cover the costs of the dog and any offspring that are in the danqerous or potentially dangerous dog's care. 7.07.700 SALE OF DOG OR TRANSFER OF CUSTODIANSHIP WITHIN CITY. (a) Custodians of a dog that has been declared dangerous or potentially 7 dangerous, who sell or otherwise transfer the ownership, custody, or residence of the dog shall, within five (5) calendar days of the change, inform the animal control authority in writing of the name, address, and telephone number of the new custodian, and/or the address of the new residence where the dog is located. Such notice shall also include the name, description, and license number of the dog. In the event the custody of the dog changes, the custodian shall notify the new custodian in writing of the details of the dog's record relating to being declared dangerous and the terms and conditions of the declaration. The custodian shall also provide the animal control authority with a copy of the written notification, which shall contain a notarized statement by the new custodian acknowledging receipt of the original notification. (b) No person shall sell, give, barter, or in any other way transfer ownership of a dangerous or potentially dangerous Level $ dog required to be registered pursuant to B.M.C. 7.07.400 to any other person residing within the City, without the new custodian's prior compliance with registration requirements pursuant to B.M.C. 7.07.400- .425. (c) Any custodian of a dog registered or required to be registered under this chapter shall notify the animal control authority upon the disposition of such dog to any person outside the City, together with the name and address of the new custodian. 7.07.800 MUZZLE REQUIREMENT. It shall be unlawful for the custodian of a dangerous or potentially dangerous Level 3 dog to permit it outside of its proper enclosure unless muzzled and restrained by a substantial chain or leash having a minimum tensile strength of 300 pounds, not exceeding 4 feet in length and under the control of a person. The muzzle shall be made to prevent the dog from biting. These restraint restrictions shall apply from the time a dog has been classified as dangerous or potentially dan.qerous Level 3, regardless of the filing of an appeal, unless and until a superior court reverses the classification. 7.07.825 IDENTIFICATION PHOTOGRAPHS. All custodians of dangerous or potentially dangerous Level 3 dogs must, within fifteen (15) ~iii~ days of such classification, provide the animal control officer with two (2) color photographs of the dog in different poses, clearly showing its color, markings, and approximate size. 7.07.850 TATTOO REQUIRED. The owner of a dangerous or potentially dangerous Level 3 dog shall within fifteen (15) days, at his or her own expense, have the registration number assigned to the dog tattooed upon such dangerous dog's thigh by a licensed veterinarian or person trained as a tattooist and authorized as such by the appropriate governmental authority. Section 5. Amendment. Section 7.08.030, 7.08.100, and 7.08.200 of the Bremerton Municipal Code shall be amended to read as follows: 7.08.100 NUISANCES. The following acts are prohibited and will constitute public nuisances, and unless otherwise specified, shall constitute civil infractions: (a) Animals at Larqe: It shall be unlawful for the custodian of any animal, except cats and trained birds, to cause, permit, or allow such animal to roam, run, stray, or to be at large, or away from the premises of such owner or authorized custodian. Animals are not permitted upon any public property or private property of another, unless such animal be under the physical control of a person and restrained by a leash that is eight feet (8') or shorter. Any animal found roaming, running, straying, or being at large from the custodian's premises and not under control and restraint as herein provided may be impounded, subject to redemption in the manner provided by Chapter 7.08.300. Provided, however, That an animal not under the physical control of another or restrained by a leash shall be permitted upon the private property of another with that person's permission. (b) Diseased Animals: To own or keep any animal afflicted with any infectious or contagious disease and fail to provide treatment for such infection or disease, or permit such diseased or infected animal to run at large or come into contact with other animals, or drink at any public or common watering trough or stream accessible to other animals. To own or keep any animals known to have contagious disease unless under the treatment of a license veterinarian. (c) Failure to Confine Cat or Doq in Heat: Failure to confine any female cat or dog that is in estrus (heat) inside an enclosed structure so that the female cat or dog cannot come in contact with the male unless the male is admitted by the custodian of the female. (d) Damaqe by Animal: Permit any animal (i) to damage public property or the private property of another or (ii) to spread or spill garbage. (e) Unlawful Tetherinq: Tether an animal in such a manner as to permit the animal to enter any sidewalk, street, alley, or to enter any adjacent lot or premises unless authorized by the occupant of that adjacent premises. (f) Disturbance: Permit or allow any animal to unreasonably annoy or disturb other persons in the vicinity of his premises or upon the public street by frequent howling, yelping, whining, barking, or other noises. (g) Threateninq Pedestrian: To cause, permit, or allow any animal to snap at, jump upon, or otherwise threaten persons using the public sidewalks, streets, alleys, or other public ways. (h) Bitin,q, Chasin.q, Attackin.q: To cause, permit or allow such animal to bite, chase, or attack persons or other animals. ~i~i~i~ii?~!~i:~iii~i~i~iii'ii;~ii;?~ii~!~iii?~!;i~i~i~iii~ (i) Harassinq: To cause, permit, or allow such animal to chase or run after vehicles, bicycles or pedestrians using the public streets or alleys. (j) Animal Waste Disposal: To fail to immediately clean up and properly dispose of any deposits of animal waste or damage while on public property or private 9 property. (k) Animals Prohibited: To keep any creature that is venomous/poisonous, or a wild animal. No person may own or maintain any lion, tiger, bear, chimpanzee, gorilla, cougar, swine, mountain lion, badger, wolf, wolf-hybrid, c.a..~ ~..a...m..!!.¥.-...h.¥.l~.~-.!.d.,....c..o..~...o....!..e.,. fox, lynx, or venomous/poisonous creature or wild animal Provided, That circuses are exempt from this regulation if a license is obtained pursuant to B.M.C. 5.:36.010. (I) Confinement in a Vehicle: No person shall confine an animal within or on a motor vehicle at any location under such conditions that may endanger the health or well being of the animal, including, but not limited to, extreme temperatures, lack of food, water or attention. Any animal control or law enforcement officer is authorized to remove any animal from a motor vehicle, at any location, when the officer reasonably believes it is confined in such conditions as described in this section. Any animal so removed shall be delivered to the animal control shelter after the removing officer leaves written notice of such removal and delivery, including the officer's name, in a conspicuous, secure location on or within the vehicle. (m) Outdoor Feedinq: To feed or allow any domestic or wild animals or birds to feed outdoors at such times and in such numbers that (1) feeding birds or animals create an unreasonable disturbance or accumulation of droppings on surrounding properties including public property, or (2) feed remains uneaten for more than four hours. 7.08.200 ~~ii~ IMPOUNDMENT. Domestic animals may be impounded by an animal control officer in the following (a) If necessary to abate a nuisance as defined in BMC 7.08.100; or If the animal bites or iniures a person or other animal, or by its actions or condition, presents a clear and present threat to the public peace, health or safety, and the public is in imminent danger, go onto the property, seize the animal and detain the animal; or (c} If the animal does not present a clear and present threat to the public peace, health, and safety, post notice to abate the nuisance upon any property wherein an animal which constitutes a nuisance is harbored, tf the nuisance is not abated within twenty-four (24) hours, the animal shall be detained at the City animal kennel. (d) If an animal has been or is being subjected to cruel treatment or conditions as defined in BMC 7.08.600 that present an imminent risk to the animal's safety and welfare, go on to the property, seize the animal and detain the animal until the animal's custodian provides assurances that the treatment or conditions underlying the impoundment will not recur. This right of entry and seizure includes and is subject to the provisions stated in BMC 7.08.400. ~0 Section 6. New Section. Chapters 7.07.025, 7.07.550 and 7.08.030 are new sections and created as follows: 7.07.025 POTENTIALLY DANGEROUS DOGS (a) The followinq levels may be used by animal control to define and requlate a potentially dangerous do.q: (1) Level 1. A doq is Level I potentially dangerous when, without provocation, it chases or approaches a person upon any property other than the dog's owner's property in a menacinq fashion or apparent attitude of attack. (2) Level 2. A doq is Level 2 potentially dangerous doq when it causes iniury to or otherwise threatens the safety of a human or domestic animal. (3) Level 3. A doq is Level 3 potentially dangerous doq when it bites a human or domestic animal. (b) Restraint of potentially dangerous do.qs. The animal control may place the followinq restraints upon potentially dangerous dogs: (1) A Level 1 potentially dangerous doq. whenever outside of th~. owner's residence and not on a leash, shall be restrained by a physical device or structure that prevents the doq from reachinq a public sidewalk, easement, right-of-way, road, or adioinin.q property, and must be located where the doq does not interfere with legal access to the owner's proper~y. (2) A Level 2 potentially dan.qerous doq must comply with the restrictions on a Level 1 potentially dan.qerous doq, and in addition, the animal control authority may require the owner to obtain and maintain proof of public liability insurance as defined in RCW 16.08.080. The owner may be required to complete a responsible pet ownership program administered by the animal control authority. All costs associated with the program shall be paid by the owner. (3) A Level 3 potentially dangerous do.q shall be confined within a secure enclosure as defined by BMC 7.07.435 whenever the doq is not inside the owner's residence. The secure enclosure must be located where it does not interfere with the public's leqal access to the owner's property. In addition, the animal control authority may require the owner to obtain and maintain proof of public liability insurance as provided in 7.07.425 of this code. The owner shall not permit the doq to be outside the secure enclosure or off the owner's property unless the animal is humanely muzzled and restrained by an adequate leash and under the control of a capable person. In addition, the owner must complete a responsible pet ownership program administered by the animal control authority. All costs associated with the program must be paid by the owner. The Level 3 potentially dangerous do.q must be registered as provided for in 7.07.400 of this code. Failure on the part of the owner to abide by the restraints placed upon the potentially dangerous dog by the animal control may result in impoundment of the potentially dangerous dog by animal control as provided in 7.08.200 of this code. 7.07.550 PENALTIES FOR CUSTODIANS OF DOGS WHICH ATTACK. The custodian of any do.q that aggressively attacks and causes severe iniury or death of any human, whether the do.q has previously been declared danqerous or potentially dangerous, may be prosecuted pursuant to RCW 16.08.100($). In addition, the doq shall be immediately confiscated by an animal control officer, placed in quarantine for ten (10) days, and thereafter destroyed in an expeditious and humane manner. 7.08.050 CONSTRICTING SNAKE LICENSE REQUIREMENTS; GUIDELINES Any person possessing a constrictinq snake as a household pet, shall obtain a license therefore and comply with the followinq license requirements: (a) LICENSE REQUIREMENTS: Prior to beinq granted a license for a constrictinq snake within the City, the possessor of said animal shall demonstrate to the animal control officer the following: (1) All constrictinq snakes will be housed in a unit secured with locks, with a hinqed top or doors or a sliding glass front with a Iockinq mechanism. (2) When handling any of the constricting snakes, another individual will be present or at least within callinq distance. (3) No minors will own or keep any adult snake over 7 feet long. (4) All constrictinq snake owners will be liable for the medical costs of treating injuries as well as additional damaqes for traumas or damaqe caused by their animals. (b) LICENSE ISSUANCE AND FEE: Followinq an in-house inspection of the holdinq cages for the snake(s), the animal control authority shall issue licenses to persons applying therefor upon payment of a license fee and will issue a certificate of registration for each snake licensed. The license application shall be dated and numbered and shall bear the name of Bremerton, Washinqton. the name and address of the owner or custodian of the snake licensed, and a description of the snake. The fee for licensinq each snake shall be Twenty-Five Dollars ($25). (c) LICENSE RENEWAL: All snake licenses shall be due and payable the first day of July of each year. If the license fee above provided for is not paid on or before August 31st of each year, the applicant shall pay a penalty fee of Ten Dollars ($10.00) for each license. (d) LICENSES NONTRANSFERABLE: Licenses as provided in this chapter shall not be transferable from one animal to another: Provided, That nothing contained in this section shall be construed to prevent a license beinq transferred from one owner to another. Section 7. Repeal. Chapter 7.07.900 is hereby repealed in its entirety. ~.~..~ ¢~i~"~i ............................................................................................. ......................................................... ............. Section 8. Effective Date. This ordinance shall take effect ten (10) days from passage and publication. APPROVED by the City Council on the first reading this day of __ ,2000. PASSED by the City Council of the City of Breme~on this day of~ 2000. CAROL ARENDS Council President APPROVED this __ day of 2000. LYNN S. HORTON Mayor ATTEST: KATHLEEN McCLUSKEY, City Clerk AGENDA BI~L BREMERTON CITY COUNCIL 1. SUBJECT: Closed Record Hearing c6t~ ~ ~._~FOR AGENDA OF: March j~ 2000 Appeal of Planning Commission decision to allow a Shor61ine ORIGINATING DEPT.: D i.~(~ ' Conditional Use Permit (CUP) for a US Navy/PSNS ORIGINATOR: Bill Pal navigational dredging and pier replacement project. DATE SUBMITTED: Marc-li2, 2000 2. /~, CLEARANCES: ,(Comment on back if 3. EXHIBITS: (.~~f~ /~~ CC Resolution # x/~- ~ AppealApplication CONCLUS 10NS OF LAV )~LF~N/~ ~AEANCA,' City Attorney File Record of PC Decision Supplemental Argumems ENDO SE mNT__X I Om ON__ COtn C- P smEN StmMITT : 4. SUMM~RY STATEMENT AND REQUIREMENT FOR COIJNCIL ACTION: The appellant requests a review, of Planning Corami~ion's approval for a Shoreline CUP for navigational dredging and pier replacemem for the US Navy/PSNS at Sinclair Inlet. A Public Hearing was scheduled for December 21, 1999, but due to lack of a quo~m~ the hearing was continued ~mfil Jantm_ry 4, 2000. The Commi.qsion voted 5.-0 for approval. On January 18, 2000 The Suquamish Tribe appealed to City Council for a Closed Record Hearing~Io review that decision. Appeal issues are as followings: ~,,~&~, ~ A. Whether the CUP violates the Notice requirements of the SMP and SMA. ~ B. Whether the CUP violates the Goals of the SMP. C. Whether the CUP meets the standards from Shreline of Statewide Si~tmificance. D. Whether the CUP violates the Conditional Use Permit requirements. 6. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: N/A REVIEW DATE: N/A 7. NOTICE OF ACTION ~'~-~/~ PULLED ~ TABLED ~ APPROVED ~ DISAPPROVED ~ AMENDED ~ IIt' COUNCIL DIRECTIVE: DATE: BEFORE THE CITY COUNCIL OF THE CITY OF BREMERTON In re ) UNITED STATES NAVY, ) Shoreline CUP 99-0086 ) ) Resolution 27 t47 Applicant. ) ) The Bremerton City Council, having heard this matter in open session and being otherwise fully advised, finds, concludes, and resolves as follows: FINDINGS OF FACT 1. This is a closed record appeal of a Shoreline Conditional Use Permit ("CUP") issued by the Planning Commission on 7 January 2000. 2. The project area has been industrial or heavily impacted by industrial activity for over a century. 3. The Commission held a public hearing with proper notice on 4 January 2000. At this hearing the Commission accepted into the record and reviewed the application, the Final EIS, the staff analysis and recommendation, and evidence from the applicants and citizens, including testimony. That record, along with the ultimate decision and the minutes of the hearing, have been certified to the Council as the record. No objections have been made to that record. 4. The Suquamish Tribe appealed the Planning Commission's decision. The appeal takes issue with notices given and with the environmental impact of dredging. 5. Of the dredged material, approximately 7% will not be CERCLA regulated. All material disposed of in the confined aquatic disposal system ("CAD"), if used, will be CERCLA regulated. All non-CERCLA material will be disposed of outside the City's jurisdiction. 6. The Council heard this matter in open session on 15 March 2000. Neither party appeared, choosing to rest on the briefs they had submitted 7. Any Conclusion of Law deemed a Finding of Fact is adopted as such. CONCLUSIONS OF LAW 1. The Council reviews the Planning Commission's decision to determine if it is supported by substantial evidence on the record. 2. The Tribe alleges several errors in providing notice of the Navy's application. For the following reasons, none of these errors, to the extent they exist, is a basis for reversal: PAGE 1 of 4 a. Contrary to the Tribe's allegations, all other permitting agencies were notified of the application to the City. Each permitting agency, including the City, received a complete packet of all permit applications. All permitting agencies had notice. b. Also contrary to the Tribe's allegations, the record indicates the City gave notice to its usual list of other entities, including the Tribe. It is unfortunate if the Tribe did not receive that notice, but there is nothing in the record controverting the evidence that the City sent the notice, which is all the Shoreline Master Program ("SMP") calls for. Additionally, such notice is a guideline of the SMP, not a requirement. c. The Tribe appeared at the Planning Commission hearing and made a presentation. At no point did the Tribe object to the notice it received. The Tribe failed to preserve the issue for appeal. d. The Tribe appeared at the Planning Commission and had an opportunity to be heard. The Tribe has offered nothing to show how the lack of notice precluded its presenting its case. The Tribe has shown no prejudice. 3. The Tribe next alleges that the dredging operations allowed by the CUP will have certain environmental impacts and so the CUP violates several SIMP goals. For the following reasons, none of these allegations is a basis for reversal: a. Most of the dredged material is CERCLA regulated. The parties are in agreement that removal of contaminated sediments would have a positive impact on the environment. The sediments can not be removed without dredging. b. The Final ElS, especially Volume One, Section 4.17, states the net effect of the project will be a decrease in traffic, which will have a positive impact on transportation, recreation, and habitat. Nothing in the record controverts this. c. The Final EIS, especially Volume One, Section 4.5, states that there must be a Biological Opinion of"No Jeopardy" to endangered species for the project to proceed. Presumably, nonendangered species would similarly be facing no or trivial impact. Nothing in the record controverts this. d. The Final EIS, especially Volume One, Section 4.13, states there are no archeological sites in the project area. The Tribe offered nothing to the contrary during either environmental review or the Planning Commission hearing. The Tribe has failed to preserve this issue and can point to nothing in the record supporting its position. e. The SMP governs development. It does not govern the operation of ships, including mooring them, unless there is construction of moorage facilities that qualifies as development. Nothing in the record indicates the dredging operation will include any such moorage development. PAGE 2 of 4 4. The Tribe next alleges that the CUP violates standards applicable to Shorelines of Statewide Significance. For the following reasons, none of these allegations is a basis for reversal: a. The City provided for statewide interests. Contrary to the Tribe's allegation, the record shows the City notified other agencies but received no comments from them to consider. Further, the City is entitled to expect other agencies to issue permits and enforce regulations within their jurisdiction and expertise. The City is not obligated to regulate those matters for those agencies. Finally, the staff report to the Planning Commission details how the project conforms to SMP goals. The Tribe's argument points to no facts in the record showing the report to be wrong. b. The Final ElS, especially Volume One, Section 4.5, shows that the ecology and natural character of the area, to the extent any natural character still exists, will be protected. Additionally, the CUP expressly obligates the Navy to continue negotiating in good faith with the Tribe concerning the Tribe's environmental mitigation proposals. c. The CAD is entirely for CERCLA regulated waste disposal. The City has no jurisdiction over CERCLA activities. d. The project area is a restricted area. There is no public access to protect. Additionally, the Tribe makes no public access argument but rather argues treaty access. Treaty access, as with private access by easement or license, is enforced by mechanisms other than the SMP and lies outside the S~MP's public access protection goal. 5. The Tribe next alleges that the CUP violates CUP requirements, For the following reasons, none of these allegations is a basis for reversal: a. As noted previously, the CAD is entirely for CERCLA regulated waste disposal. The City has no jurisdiction over CERCLA activities. b. As also noted previously, the project area is a restricted area. There is no public access to protect. Additionally, the Tribe again makes no public access argument but rather argues treaty access. c. The Final EIS, especially Volume One, Section 4.5, states that there must be a Biological Opinion of"No Jeopardy" to endangered species for the project to proceed. Further, the staff report to the Planning Commission details how the project meets the CUP requirements. The Tribe's argument points to no facts in the record showing the report to be wrong. 6, The CUP is supported by substantial evidence in the record. PAGE 3 of 4 THEREFORE BE IT RESOLVED: CUP 99-0086 is affirmed. Dated this day of March, 2000. BRElVIERTON CITY COUNCIL Carol Mends, Chair PAGE 4 of 4 LIST OF DOCUMENTS 1. Navy's Shoreline Conditional Use Permit application A. Cover letter from Peter Havens (1 page) B. Shoreline Permit Submittal Checklist (2 pages) C. Application form (4 pages plus diagrams) D. Dredge Management Plan (13 pages plus diagrams) E. Aerial photos (1 page) F. Navy's November 1999 SMA Review (8 pages) G. Navy's Public and Agency Involvement summary (2 pages) 2. Notices A. Notice of Application (1 page) B. Published Notice (1 page) C. Declaration of Posting (1 page) D. Mailing list (3 pages) 3. Planning Commission materials A. 4 January report from Jon Holan (4 pages plus attachments) B. 4 January Suquamish Tribe letter (2 pages) C. Draft minutes of meeting (8 pages) D. Resolution No. 2000-02 (1 page) 4. Notice of Action Taken (1 page) 5. Appeal A. Request for Review (1 page) B. t 8 January Suquamish Tribe letter (2 pages) 6. Briefs A. Suquamish Tribe's Opening Brief (19 pages) B. Navy's Response (5 pages and fax cover) C. Suquamish Tribe's Reply Brief and Certificate of Service (8 pages) ABOVE DOCUMENTS CAN BE FOUND IN THE CITY COUNCIL OFFICE, ROOM 209, AT CITY HALL, 239 qth STREET, BREMERTON, WA 98337 UP TO THE DATE OF THE HEARING ON MARCH 29, 2000. AFTER THAT DATE, THESE DOCUMENTS WILL BE RETURNED TO THE DEPARTMENT OF COMMUNITY DEVELOPMENT.