Loading...
HomeMy WebLinkAbout01/16/2008 AGENDA F\LE CITY COUNCIL 345 6th Street, Suite 600, Bremerton, WA 98337-1873 0 (360) 473-5280 JANUARY 16, 2008 CITY COUNCIL MEETING AGENDA 1. PRE-COUNCIL STUDY SESSION: 5:00 - 5:30 P.M. in COUNCIL CONFERENCE ROOM 603 A. General Council Business B. 15-minute Executive Session to discuss "Potential Litigation" per RCW 42.30.11 O( 1 )(i) 2. CALL TO ORDER: 5:30 P.M. in CHAMBERS LOCATED ON 1ST FLOOR A. Pledge of Allegiance B. Invocation 3. MAYOR'S REPORT 4. PUBLIC RECOGNITION & ANNOUNCEMENTS 5. CONSENT AGENDA A. Claims & Check Register (#AB08-003) B. Minutes of Meeting - December 19, 2007 (#AB08-004) C. Minutes of Meeting - January 2, 2008 (#AB08-005) D. Minutes of Meeting - January 9, 2008 (#AB08-006) E. TAB NW Contract for Storage Cabinets; and amendment to 2008 Annual Budget to carry forward an item from the 2007 Budget (#AB08-007) F. Professional Services Agreement with RH2 ENGINEERING, INC. for Reservoir Seismic Upgrade Design (#AB08-008) G. Agreement with ASURIS for Prescription Drug Coverage for LEOFF 1 Retirees (#AB08-009) H. Amendment to Contract with KITSAP HUMANE SOCIETY (#AB08-01 0) I. Authorize the City Attorney to pursue a lawsuit against BURLEY CONSTRUCTION, INC. relating to the Makayla Heights Development (#AB08-012) 6. GENERAL BUSINESS A." Ordinance No. 5039, repealing and replacing Chapter 9.92 of the Bremerton Municipal Code entitled "Chronic Nuisance Properties" (#AB08-011) 7. COUNCIL MEMBER REP.ORTS 8. ADJOURNMENTOF CITY COUNCIL BUSINESS MEETING I Americans with Disabilities Act (ADA) accommodations provided upon request. Those requiring special accommodations should contact the City Clerk's Office at (360) 473-5323 by noon on the Monday preceding the Council meeting. CITY COUNCIL MEETING SPEAKERS LIST '1/'-/01 PLEASE NOTE THAT ALL REQUESTS FOR INFORMATION FROM THE CITY OF BREMERTON MUST BE SUBMITTED IN WRITING. THANK YOU. PLEASE PRINT YOUR NAME BELOW IF YOU PLAN TO SPEAK DURING THE COUNCIL MEETING TONIGHT ? <Hro w 011 - $-eCl.:\\\~ Y'c~ cl~o C.~SClv1 ~~ 1cj).~~ - €., hbol'kc,od UJttM :rI~ Yhol] ~. J'hfbJ - ko' u0~ DATE SUBMITTED: January 16,2008 BILL # 08-003 AGENDA BILL CITY OF BREMERTON CITY COUNCIL 5A ........................................................................................ SUBJECT: Claims & Check Register Committee Meeting Date: COUNCIL MEETING Date: January 16,2008 Department: Financial Services Presenter: Cathy Johnson Phone: 473-5296 SUMMARY: Consent Agenda item. Approval of checks and electronic fund transfers. A TT ACHMENTS: Check Register FISCAL IMPACTS (Include Budgeted Amount): APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: COMMITTEE CHAIR COUNCIL PRESIDENT: /~ P" ' CONSENT AGENDA ~ GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: 1) Check #'s 321879 through 322172 and EFT's 7594 through 7611 in the amount of $1,898,995.49. COUNCIL ACTION: [E( Approve 0 Deny 0 Table o Continue 0 No Action DATE SUBMITTED: BILL II ____o_8~J? 04 AGENDA BILL CITY OF BREMERTON CITY COUNCIL 56 .........a.................m..................................................a......... SUBJECT: City Council Meeting Minutes j'()f meeting of 1)~e..h'\.loer I q I 200-' Committee Meeting Date: COUNCIL MEETING Date: Departll1ent: Presenter: N/A -:JQ 't\ v...J).. y- 't I & t 2- 00 8 City CouncIl Will Maupin, Council President (360) 473-5280 Phone: SUMMARY: Attached is a summary of the City Council Meeting held De<:e-W"Lb0v- 1'1 j ;LO 07 ATTACHMENTS: Meeting Minutes for 1>e.L-e.J'Y'Lb0r I q j 2007 FISCAL IMP ACTS (Include Budgeted Amount): N/ A APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: Council President N/A N/A N/A COMMITTEE CHAIR COUNCIL PRESIDENT: u 4{ kFY//(~ CONSENT AGENDA ~ GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: Move, to approve the Consent Agenda as presented. COUNCIL ACTiON: 0 Approve 0 Deny 0 Table o Continue 0 No Action DIGITAL RECORDING CITY COUNCIL MEETING MINUTES Wednesday, December 19, 2007 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, of the NORM DICKS GOVERNMENT CENTER 345 6th Street, Bremerton, Washington, Wednesday, December 19,2007, at 5:30 PM, with Council President Will Maupin presiding. Council members present were Nick Wofford, Carol Arends, Dianne Robinson, Mike Shepherd, Wendy Priest, Adam Brockus, Cecil McConnell, and Brad Gehring. Also present were City Attorney Roger Lubovich; City Clerk Carol Etgen; and Council Assistant Christine Grenier. The Pledge of Allegiance was led by Council Member Brad Gehrina followed by the invocation provided by Pastor Dennis Payne of Ebenezer African Methodist Episcopal Church. President Maupin announced that a Pre-Council Session to discuss General Council Business; and that Item 7D has been pulled from the agenda. MAYOR'S REPORT In lieu of the Mayor's Report, President Maupin presented a plaque on behalf of the Council to Council Member Wendy Priest in recognition of her significant contributions made during her term of office beginning January 1,2004 and ending December 31,2007. PUBLIC RECOGNITION & ANNOUNCEMENTS Brad Gehrina announced that residents may contact the Federal Emergency Management Assistance (FEMA) agency to report flood related damage and to receive assistance in repairs by contacting (800) 621-3362,8:00 AM to 6:00 PM, Monday through Sunday. Individuals who file for assistance will be asked to provide personal information including contact information, address of property damage, social security number, general financial information, and bank account information. CONSENT AGENDA A. Check Numbers 312445 through 321609; and EFT-7545 through EFT-7556 in the amount of $599,762.09 (#AB07-288) B. Minutes of Meeting - December 5, 2007 (#AB07 -289) C. Minutes of Meeting - December 12, 2007 (#AB07 -290) D. Agreement with Thompson West for Westlaw Research Subscription (#AB07 -291) E. Purchase of (2) 100-KW Emergency Generators for Fire Stations #2 and #3 (#AB07 -292) F. Contract Modification with HDR ENGINEERING, INC. for Design Services for Sewage Pump Station CW-1 Upgrade (#AB07-293) G. Real Estate and Purchase & Sale Agreement with KK SLATER ENTERPRISES for property located at 2342 Anderson Hill Road to use a portion of the property for Southwest Bremerton Residential Sewer Extension Pump Station (#AB07 -294) H. Authorization for a 1-month Interfund Loan from the General Government Capital Improvement Fund to the Harborside Plaza and Commons Fund (#AB07-295) I. Resolution No. 3042, authorizing the second amendment and extension of the Reimbursement Agreement between the City of Bremerton and the Bank of America (#AB07-296) J. Resolution No. 3043, ratifying the Kitsap Countywide Planning Policies as recommended by the Kitsap Regional Coordinating Council (KRCC) and adopted by the Board of County Commissioners (#AB07-297) K. Resolution No. 3044, in support of the Employee Wellness Program (#AB07-298) L. Ordinance No. 5033, amending Ordinance No. 5022, which amended the Fiscal Year 2007 Budget for the City of Bremerton as originally adopted by Ordinance No. 4991 (#AB07-299) City Council Reg. Mtg. Minutes Wednesday, December 19, 2007 Page 2 of 9 There were no questions or comments by the public... 05:38:40 M/S/C/U (Priest/Arends) Move to approve the CONSENT AGENDA as presented. GENERAL BUSINESS - There were no General Business items tonight... PUBLIC HEARING 7A- PUBLIC HEARING AND RESOLUTION NO. 3045. ADOPTING THE 2007-2012 PARKS. RECREATION. AND OPEN SPACE PLAN AS AN ELEMENT OF THE BREMERTON COMPREHENSIVE PLAN (#AB07-300): Wvn Birkenthal, Parks & Recreation Director, summarized that the action before the City Council is to conduct a public hearing and adopt the 2007 - 2012 Parks, Recreation, and Open Space Long Range Plan. This plan is part of the City's 2007 annual Comprehensive Plan amendment process. Final approval of the plan will be through the adoption of the Comprehensive Plan amendments. The plan has been reviewed by the Planning Commission, City Council Public Safety and Parks Committee, and recommended for adoption by the Parks and Recreation Commission at their November 13, 2007 meeting. The process for writing the plan included a series of advertised public meetings, mail, and internet surveys and meetings with recreation interest groups. Draft copies of the plan have been made available to the public for review and comment on the City web page, and hard copies located at City offices. Bill North, Parks & Recreation Commission Member, provided his support and referenced page 5 of the proposal which outlined the overall direction and long range vision of this plan. Ms. Priest thanked Mr. North, members of the Parks & Recreation Commission, and Parks staff for bringing this plan forward; and asked if the feasibility study for the West Bremerton Community Center could be included as part of the plan. Mr. Lubovich emphasized that the motion could be amended to include the study. Mr. Shepherd expressed concerns over services being provided to low-income seniors and families, and hoped that a study would be pursued to determine the true users of individual programs. Mr. Brockus asked if the proposed center would serve seniors or the general public. Ms. Priest stated that the feasibility study would determine the demographic best served in the center. Mr. Gehring offered his support for the plan. Mr. McConnell was encouraged that having a plan will allow the City to pursue grant funding. 05:58:55 Main Motion was made and discussion continued... 06:02: 17 A-M/S/C/U (Priest/Shepherd) Move to add to the 20- Year Capital Facilities Plan a community center on the west side of Bremerton. 06:11 :26 M/S/C/U (Arends/Shepherd) Move to pass Resolution No. 3045 approving the 2007-2012 Parks, Recreation, and Open Space Plan subject to adoption as part of the pending 2007 Comprehensive Plan amendment docket. 7B - PUBLIC HEARING AND RESOLUTION NO. 3046. ADOPTING THE NON-MOTORIZED TRANSPORTATION PLAN AS AN ELEMENT OF THE BREMERTON COMPREHENSIVE PLAN (#AB07-301): Mike Mecham, City Engineer, asked that the City Council review and approve the Bremerton Non-Motorized Transportation Plan. This plan will guide the development of improvements to the City transportation infrastructure for pedestrian and bicycle improvements, both off street and on. This plan is far reaching with improvements anticipated to be made over a 20-year time frame. City Council Reg. Mtg. Minutes Wednesday, December 19, 2007 Page 3 of 9 Ann Richev believed that signage should be placed where actual bike routes exist. Jerrv McDonnell commented that there is a potential hazard for riders when storm debris ends up in the street; suggested a training program to establish guidelines and rules of the road; and hoped that law enforcement would be included in the process if bike routes are established. 06:26:10 Main Motion was made and discussion continued... Mr. Shepherd stated that circulation and parking components will be addressed in future committee meetings and hoped that these issues are incorporated in a later updated plan; and agreed that training regarding safety both for pedestrians and drivers is in order. Mr. McConnell asked for clarification on a "street user" fee. John Perlake, Parametrix consultant and Project Manager, clarified that a fee could be used for operation and maintenance for non- motorized street related facilities. Mr. McConnell also asked for clarification on what is meant by providing priority to pedestrians on boulevards. Mr. Perlake responded that the bike boulevards would be located on low volume streets and vehicles would be notified that bikes are on that route. Mr. McConnell expressed concerns over the use of stop bars. Mr. Perlake responded that this measure would only be implemented in higher level areas of bike use so Bremerton may not exercise this option. Mr. McConnell then asked why bicyclists are not being asked to fund these facilities. Mr. Perlake stated that this is not in line with other jurisdictions but Council may consider this as an option. Ms. Priest provided her support and asked for clarification on the location of routes and sidewalks. Mr. Perlake answered that a minor map amendment could include non-major routes such as pedestrian and sidewalk improvements. Mr. Brockus thanked staff and contractors for their work in addressing many issues in development of this plan. Mr. Shepherd hoped that some Department of Transportation grant funding can be pursued for pedestrian safety improvements. Ms. Robinson also thanked staff and Parametrix for producing the plan; and asked why the trip reduction plan was not included as part of the plan. Mr. Mecham answered that components of the Non-Motorized plan would meet the goals of the already existing trip reduction plan, but that the trip reduction plan could be included as an attachment. Mrs. Arends offered her support; and believed that the City could make huge improvements in school route safety. Mr. Maupin also offered his support; and hoped that improved safety would encourage more people to become active. Mr. Gehrina was pleased that school route safety and sidewalk improvement are going to be addressed; and expressed concerns over possible costs to taxpayers for bike amenities, and the lack of alternatives being presented for Warren Avenue. Mr. Wofford provided comments in support of the plan. 6:46:09 M/S/C (McConnell/Brockus) Move to pass Resolution No. 3046 approving the Non-Motorized Transportation Plan as an element of the pending 2007 Comprehensive Plan Amendments. Voted in favor of Motion: Priest, Shepherd, Robinson, Arends, Wofford, Brockus, Maupin Voted opposed to Motion: Gehring, McConnell Motion carried: 7-Yes; 2-No City Council Reg. Mtg. Minutes Wednesday, December 19, 2007 Page 4 of 9 7C - PUBLIC HEARING AND ORDINANCE NO. 5034. AMENDING THE COMPREHENSIVE PLAN TO INCLUDE THE DOWNTOWN REGIONAL SUB-AREA PLAN: AND AMENDING SECTION 20.80 OF THE BREMERTON MUNICIPAL CODE TO ACTIVATE THE DEVELOPMENT REGULATIONS DETAILED IN THE PLAN (#AB07-302): Andrea Spencer, Community Development Director, stated that the action before the City Council is to conduct a public hearing and consider amendments to the Bremerton Municipal Code and Comprehensive Plan to incorporate the Downtown Sub-Area Plan. Geoffrev Wentlandt, Community Development, outlined corrections in language and provided various height options for the Highland area as possible amendments to the Comprehensive Plan being presented to Council for consideration. Brad Johansson, Harborside Condominiums, was pleased with the options being offered. Jane Roth Williams, Interim Director for the Kitsap Historical Museum, read a letter on behalf of the Kitsap County Historical Society Board of Directors, expressing concern in preserving the historical character of the Highland District; and believed that the Highland neighborhood should have a buffer from development assuming higher height limits in the downtown area. Brett Warner supported greater density in the City and 60-foot height limits. John Ales emphasized that future projects will be reviewed during the design review process and will meet guidelines and requirements. 07:11 :03 Main Motion was made and discussion continued... Mr. Shepherd was impressed by all of the parties involved in producing the plan, believed that the plan allows for mitigating the height yet preserving the historical character of the Highland neighborhood. Ms. Priest thanked Planning staff; provided historical background on the Highland neighborhood; and encouraged the Council to support the recommendations of the Planning Commission and Hearing Examiner with regards to heights. Mr. Gehring asked for clarification on "expanded pedestrian core". Mr. Wentlandt answered that the areas would include Pacific Avenue, 6th Street, and the downtown core as places to focus on for pedestrian improvements. Mr. Gehring also asked for a status update on the traffic analysis. Mr. Wentlandt reported that it is a model and a final report should be available in January and the report could be used to update the sub area plan at a later time. Mr. Gehring also expressed concerns over a reduction in parking. Laura Lvon, Financial Services Director, indicated that funding parking garages are difficult and the City will be looking at alternatives. President Maupin recessed the Council Meeting for a taping break from 7:26 to 7:35 PM. Mr. Gehring expressed concerns over "market driven heights". 07:37:35 A-M/F (Gehring/) Move to amend height limit from 45-feet to 200-feet. Motion failed due to a lack of a second. Mr. McConnell did not support transfer of development rights and encouraged the Council to place this item in a separate section. Mr. Wofford supported the amenity program and believed that this is a good trade off to allow height but gives the public a benefit. Mr. Brockus thanked staff and consultants; supported turning Pacific Avenue into a main street and an area for development; liked the amenity plan which would include an 80 foot view buffer and the suggested sustainability district. City Council Reg. Mtg. Minutes Wednesday, December 19, 2007 Page 5 of 9 Ms. Robinson also supported the sustainability district and employment districts being proposed. Mr. Maupin commended the Department of Community Development and Planner Geoff Wentlandt in bringing this plan forward. 7:44:39 M/S/C (PriesUArends) Move to pass Ordinance No. 5034 to amend the Comprehensive Plan to include the Downtown Regional Center Sub Area Plan as amended per the Council Amendments, and amend Bremerton Municipal Code Section 20.80 to activate the development regulations detailed in the plan. Voted in favor of Motion: Shepherd, Robinson, Arends, Wofford, Brockus, Priest, Maupin Voted opposed to the Motion: Gehring, McConnell Motion carried: 7-Yes; 2-No 7D PUBLIC HEJ'.RING AND ORDINANCE NO. 5035. ^MENDING SECTION 20.58 OF THE BREMERTON MUNICIPAL CODE (BMC) TO CREATE ^ TR.I\NSFER DEVELOPMENT RIGHT (TDR) PROGRAM (#A807 303): This item was pulled from the agenda... 7E - PUBLIC HEARING AND ORDINANCE NO. 5036. AMENDING BREMERTON MUNICIPAL CODE 3.78 RELATING TO THE EXEMPTION OF AD VALOREM PROPERTY TAX FOR NEW MULTI-FAMILY HOUSING AND MODIFICATION OF THE DESIGNATED TARGET AREAS (#AB07- 304): Andrea Spencer, Community Development Director, summarized that in 1995, the State Legislature passed 84.14 Revised Code of Washington (RCW) that allows the cities to create a tax incentive program to induce development of new multi-family housing within designated target areas, and in October 2006, the City Council established the use of the tax incentive program for a small target area in the downtown core. Revisions to the tax incentive program (BMC 3.78) are proposed at this time to address changes in State law pursuant to the Second Substitute House Bill 1910 and to match the designated residential target areas with the City's adopted sub-area plans for the designated centers of Downtown and Wheaton-Riddell. Brad Johansson, Harborside Condominiums, was excited about the redevelopment plan and encouraged Council to support Option 3 which excludes the waterfront properties from the designated target area. Norman McLouahlin, Kitsap County Consolidated Housing Authority, asked Council to include renters in the mix of housing for equity in the community. Jerry McDonnell, Harborside Condominiums, believed that Harborside should have been included in the tax abatement area; and hoped that implementing incentives would trigger higher owner occupancy and that Council would consider implementing incentives retroactively. Debbie Shaver, Harborside Condominiums, also supported Option 3. Ned Anderson commented that incentives help buyers and ultimately results more retail spending and more businesses; and that incentives are short term; and supported Option1. Don Kaimuss, Harborside Condominiums, appreciated Council's consideration of waterfront properties. Mark Goldbera commended the Planning Department and Andrea Spencer; and supported tax credits for construction of apartments in order to allow for a mix of housing options. City Council Reg. Mtg. Minutes Wednesday, December 19, 2007 Page 6 of 9 Chuck Henderson emphasized that population within the market area is decreasing which makes it difficult to attract retail businesses, and believed that this tax incentive will bring in extra housing which will support the businesses. Rick Shaver encouraged Council to adopt Option 3. 8: 13:56 Main Motion was made and discussion among Council Members continued... Mr. Wofford asked if a developer buys property then redevelops, what value is placed on the property in the context of the this tax incentive program. Ms. Spencer answered that the property value would be the value prior to construction. However, revenue would also be realized from sales tax, business and operation tax on construction, and utility tax. Mrs. Arends emphasized the importance of drawing people to come downtown; and supported the program. Mr. Shepherd also wanted to see more people downtown; and encouraged property owners to focus on parking and safety issues. Mr. Brockus did not believe that anyone would need an incentive to live along the waterfront in Bremerton. Mr. Gehrina would like the sunset clause to be included to remove incentive; and asked if this incentive plan would be applied to the West Side area. Ms. Spencer responded that the housing will be removed and replaced in Westpark, and does not appear to be a good candidate for the program. Mr. Gehrina would also like to see economic development move forward. Mr. McConnell believed that if a benefit is given to a group of residents, then the cost will be spread out to the rest of the citizens; and did not support the program. Mr. Shepherd expressed concerns about the decreasing population; and hoped that ways are found to draw people back to the City. Mr. Maupin believed that the incentive would kick-start business development and would encourage people to move downtown. Ms. Priest recommended the elimination of the waterfront property from the program. Mr~ Maupin reiterated that the proposed amendment would include the area from Evergreen Park to the Bremerton Transportation Center. 08:34:32 A-M/S/C (Priest/Robinson) Move to amend the proposed ordinance by replacing Figure 3.78 (a) as presented in the ordinance with Figure 3.78 (a) Option 3. Voted in favor of the Motion: Robinson, Arends, Gehring, McConnell, Brockus, Priest Voted opposed to the Motion: Wofford, Shepherd, Maupin Amended Motion carried: 6- Yes; 3-No Mr. Brockus hoped that census figures may improve around the same time as the end of the sunset clause in 2010, and redevelopment may pick up at that time; he added that the proposed ordinance removes the sunset clause. Mr. Maupin indicated that the City may respond to market conditions or remove this program at any time; and did not support the amendment. 08:38:26 A-M/S/F (Brockus/Gehring) Move to amend the ordinance by restoring the sunset clause and renumbe~ing proposed BMC Section 3.78.130 "Conflict of Provisions" accordingly. City Council Reg. Mtg. Minutes Wednesday, December 19, 2007 Page 7 of 9 Voted in favor of Motion: Gehring, McConnell, Brockus, Robinson Voted opposed to the Motion: Arends, Wofford, Priest, Shepherd, Maupin Amended Motion failed: 4-Yes; 5-No Mr. GehrinQ asked if there is any information available on tax distribution. Ms. Lvon responded that this tax exemption would be put in place to encourage new development which otherwise may not occur without the incentive. There would be no impact to the taxpayers. 08:47:33 M/S/C (Shepherd/Wofford) Move to pass Ordinance No. 5036 to amend BMC 3.78 modifying the program for ad valorem property taxation for new multi-family housing in designated residential targeted areas of the City, specifically the Downtown Regional Center, and the Wheaton/Riddell District Center. Voted in favor of Motion: Wofford, Gehring, Priest, Shepherd, Robinson, Arends, Maupin Voted opposed to the Motion: McConnell, Brockus Motion carried: 7-Yes; 2-No 7F - PUBLIC HEARING AND ORDINANCE NO. 5037, ADOPTING THE 2007 COMPREHENSIVE PLAN AMENDMENT DOCKET (#AB07-305): Geoffrev Wentlandt, Community Development, pointed out that the action before Council is to conduct a public hearing and adopt an ordinance for the 2007 Comprehensive Plan Amendment Docket. There were no comments from the public... 8:53:27 Main Motion was made and discussion among Council Members continued... Mr. Brockus supported the amendments; and hoped that industrial lands would be restored in the future. Mr. Shepherd mentioned that he and Dianne Robinson both support an increase in density at the Olympic College campus. Ms. Robinson asked if the area would be adopted as a center. Mr. Wentlandt answered that this issue was discussed by the Planning Commission and will be initially called a neighborhood business but could be revisited later. Mr. GehrinQ asked how much industrial land is available. Mr. Wentlandt stated that total industrial area available is about 1100 acres or 7.8 % of the City's total land area. Mr. Shepherd believed that forest lands should be re-categorized. Mr. Wofford asked if the watershed property is included in the industrial land. Mr. Wentlandt answered that industrial lands do not include watershed property. The watershed property is factored in as part of the City's total land area. Mr. GehrinQ asked how much available industrial land is available for development. Mr. Wentlandt stated that there are about 400 acres of vacant industrial land in the Port Blakely area and over 100 acres in the Wright Creek Business Park project. Mr. Brockus asked if the area includes the shipyard. Mr. Wentlandt responded no. 09:02:10 M/S/C (Priest/Wofford) Move to pass Ordinance No. 5037 adopting amendments to the Comprehensive Plan Text and Official Land Use Map as recommended by the Planning Commission. Voted in favor of Motion: McConnell, Brockus, Priest, Shepherd, Robinson, Arends, Wofford, Maupin Voted opposed to the Motion: Gehring Motion carried: 8-Yes; 1-No City Council Reg. Mtg. Minutes Wednesday, December 19, 2007 Page 8 of 9 7G - CLOSED RECORD HEARING AND ORDINANCE NO. 5038 (#AB07-305): Geoffrev Wentlandt, Community Development, emphasized that in order to be consistent with the 2007 Comprehensive Plan Amendments, the action before the Council is to grant approval of a rezone of a total of 97.09 acres of lands south of the Werner Road corridor from primarily Industrial (I) to primarily Low Density Residential (R-10). Roger Lubovich stated that since this is a closed record hearing, no new testimony may be taken by the Council; then explained that the Council may now 1) approve and adopt the Hearing Examiner's findings and recommendations; 2) modify and approve the findings and recommendation; 3) reject and deny the Hearing Examiner's findings and recommendation; or 4) continue the hearing and remand the matter to the Hearing Examiner. President Maupin read the Appearance of Fairness Doctrine and asked "if any Council Members should now excuse themselves if they have 1) demonstrated bias or prejudice for or against any party to the proceedings; 2) a direct or indirect monetary interest in the outcome of the proceedings; 3) a prejudgment of the issue prior to hearing the facts on the record; 4) ex parte contact with any individual, excluding administrative staff, with regard to an issue prior to the hearing. If any Council Member should answer in the affirmative, then the Council Member should state the reason for their answer at this time so that Chair may inquire for their answer at this time so that the Chair may inquire of the City Attorney as to whether a violation of the Appearance of Fairness Doctrine or a Conflict of Interest exists." Then asked members of the public if any Council Members should be excused from the public hearing.. .AII Council Members remained seated. Mr. McConnell asked for clarification on the city utility lands in the corridor as provided on the map. Mr. Wentlandt answered that 10 of 97 acres had prior utility lands zoning designation, and that the applicant has an arrangement to swap a comparable parcel in the future. 09:06:52 M/S/C (Shepherd/Priest) Move to pass Ordinance No. 5038 approving a rezone of a total of 97.09 acres south of Werner Road corridor. Voted in favor of Motion: McConnell, Brockus, Priest, Shepherd, Robinson, Arends, Wofford, Maupin Abstained: Gehring Motion carried: 8-Yes; 1-Abstention COUNCIL MEMBER REPORTS Nick Wofford; Carol Arends; Adam Brockus; Cecil McConnell all wished the community a Merry Christmas and Happy New Year; and offered best wishes to Wendy Priest as she leaves office. Dianne Robinson thanked the Northwest Navy Band for last night's performance; thanked Wendy for her service; and also wished everyone a Merry Christmas and Happy New Year. Mike Shepherd commended Wendy for her hard work in representing the downtown and its tough issues. Brad Gehring stated that he will miss Wendy and wished her well; thanked staff for their hard work during the past year; encouraged citizens to be safe during the holidays; and wished everyone a Happy New Year. Will Maupin commended Wendy for chairing some important committees and emphasized that she will be missed; also wished everyone a Merry Christmas and Happy New Year; and lastly, announced that there would be no Council Meeting on Wednesday, December 26th. City Council Reg. Mtg. Minutes Wednesday, December 19, 2007 Page 9 of 9 Wendy Priest enjoyed working with the Council; appreciated their professionalism; wished her fellow Council Members well; and hoped to be active in the community in the future; and thanked District 4 constituents for the honor to serve and her husband for being so supportive during her term; and wished the community a Merry Christmas and Happy New Year. With no further business, President Maupin adjourned the Council Meeting at 9: 15 PM. Prepared and Submitted by: ~~ CHRISTINE GRENIER Council Assistant Attest: CAROL ETGEN, City Clerk WILL MAUPIN, City Council President WM:CEls:cg DATE SUBMITTED: BILL tt __Q9 _=_Q_ ~ 5 AGENDA BILL CITY OF BREMERTON CITY COUNCIL 5C .............................a...B...................................a..a..........a.u.' Committee Meeting Date: N/ A COUNCIL MEETING Date: ::r o...Vl u....o...r'1. 1(0) 2-C:II:::;J 8 Department: City CouncIl Presenter: Will Maupin, Council President Phone: (360)473-5280 SUMMARY: Attached is a summary of the City Council Meeting held ~tA.V\lA.Q:('~1 2. I 2-00 ~ SUB.JECT: City Council Meeting Minutes 1'(11" meeting of To..V\ v<..a. '('I.( '2 J 200 g ATTACHMENTS: Meeting Minutes for T ~V\ c..Ao..xy 1- J 2008 FISCAL IMPACTS (Include Budgeted Amount): N/A APPROVALS: DEPARTMENT DIRECTOR: Council President CITY ATTORNEY: N/A FINANCE DIRECTOR: N/ A MAYOR: N/A COMMITTEE CHAIR COUNCIL PRESIDENT: ~ 19Y/7{v~ CONSENT AGENDA ~ GENERAL BUSINESS D PUBLIC HEARING D RECOMMENDED MOTION: Move to approve the Consent Agenda as presented. COUNCIL ACTION: 0 Approve 0 Deny [] Table o Continue [J No Action DIGITAL RECORDING CITY COUNCIL MEETING MINUTES Wednesday, January 2,2008 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, of the NORM DICKS GOVERNMENT CENTER 345 6th Street, Bremerton, Washington, Wednesday, January 2,2008, at 5:30 PM, with Council President Will Maupin presiding. Council members present were Nick Wofford, Carol Arends, Dianne Robinson, Mike Shepherd, Roy Runyon, Adam Brockus, Cecil McConnell, and Brad Gehring. Also present were City Attorney Roger Lubovich; City Clerk Carol Etgen; and Legislative Assistant Lori Smith. The Pledge of Allegiance was led by Council Member Brad GehrinQ followed by the invocation provided by Pastor Eric Roberts of New Life Assembly. President MauDin announced that prior to the meeting, a Pre-Council Session was held to discuss General Council Business; it was further announced that following this meeting, a reception would be held in the Chambers to recognize the re-elected and newly elected Council Members which was open to the public; and the public was invited to attend a STUDY SESSION beginning at approximately 6:30 PM in the 6th Floor Council Conference Room to discuss "General Business". OFFICIAL SWEARING-IN CEREMONY City Attorney ROQer Lubovich administered the OA TH OF OFFICE to Re-Elected Council Members Cecil McConnell, Dianne Robinson, and Will Maupin; and Newly-Elected Council Member Roy Runyon. ELECTION OF CITY COUNCIL OFFICERS President MauDin opened nominations for Council President/Mayor Pro Tempore. Mike SheDherd nominated Will MauDin. Cecil McConnell nominated Brad GehrinQ. President MauDin closed the nominations. 05:38:47 Votes were read for the position of City Council President/Mayor Pro Tempore for 2008: Voted for Will Maupin: Brockus, Shepherd, Arends, Maupin, Wofford, (5 votes) Voted for Brad Gehring: Gehring, McConnell, Runyon, Robinson (4 votes) President MauDin remained seated as Council President; and opened nominations for Council Vice President. Carol Arends nominated Dianne Robinson. President MauDin closed the nominations. 05:39:45 (Brockus/Shepherd) M/S/C/U Move to direct the City Clerk to cast a unanimous ballot for Dianne Robinson for the position of City Council Vice President for 2008. Dianne Robinson was named City Council Vice-President. The Council then continued with the regular business meeting. . . City Council Reg. Mtg. Minutes Wednesday, January 2,2008 Page 2 of 3 MAYOR'S REPORT · Welcomed Roy Runyon to the City Council; · Thanked Roger Lubovich for his commitment to the City, even when ill; · Applauded the City Council for their efforts in adopting the Parks & Open Space Plan; the Downtown Sub Area Plan; and the Non-Motorized Transportation Plan; and · Reminded Council Members and Staff that the 2008 Budget is the adopted and funded work plan for the City; and emphasized that it will be the Council's job to monitor the plan and to determine what programs they wish to fund in 2009. PUBLIC RECOGNITION & ANNOUNCEMENTS Rov Runvon invited the public to attend a presentation by Don Stuart, Pacific Northwest States Director for the American Farmland Trust regarding "Saving the Land that Sustains Us" on Tuesday, January 8 from 7:00 to 9:00 PM in the Meeting Chambers of the Norm Dicks Government Center. Please contact (360) 779-6523 for more information. Mike Walton, Executive Director of the YMCA, announced that Tea Dances will be held on Wednesdays and Fridays from 4:00 to 5:00 PM and on Saturdays from 11 :00 AM to Noon; Resolution Runs & Walks will be held the first Sunday from January through April starting at 9:00 AM; Teen Late Night will be held every Friday night from 8:30 to 11 :00 PM; Splash and Jam will be held on Saturday, January 19th. People may contact (360) 377-3741 for more information on any of these programs; and informed Council that he will be assuming the Executive Director position for the Kitsap Public Facilities District in a few weeks. Don Larson, Kitsap Trees & Shoreline Association, announced that an area next to Puget Sound Naval Shipyard's Missouri Gate will be improved on Friday, January 4th by Eagle Scout Jon Gallent; and hoped that the City of Bremerton would consider becoming a partner to improve pedestrian access, establishing an underwater park, and for restoration work in Sinclair Inlet. CONSENT AGENDA A. Check Numbers 321610 through 321695; and EFT-7557 through EFT-7578 in the amount of $2,029,877.29; Regular Payroll for the pay period ending December 15, 2007 in the amount of $713,738.10 ; Pay-Out and Supplemental Payroll for the pay period ending December 15, 2007 in the amount of $1,739.96; and Retiree Payroll for the pay period ending December 31,2007 in the amount of $76,919.13 (#AB08-001) 05:55:09 M/S/C/U (Brockus/Wofford) Move to approve the CONSENT AGENDA as presented. COUNCIL MEMBER REPORTS Brad Gehrina congratulated Mr. Walton on his new position; thanked those who supported him in his bid for Council President; and offered congratulations to Will Maupin. Cecil McConnell also congratulated the new officers for 2008; and wished everyone a Happy New Year. Adam Brockus offered congratulations to Dianne Robinson and Will Maupin; commended Mr. Gehring for running for the presidential post; congratulated Mr. Walton and recalled his efforts in being involved in the community. Rov Runvon was excited to be part of this team with the Council and Mayor; and thanked citizens for participating in the last election. City Council Reg. Mtg. Minutes Wednesday, January 2,2008 Page 3 of 3 Mike Shepherd was invited to several neighborhood meetings and was pleased with the genuine interest in the City; and announced the First Friday Artwalk events being held this Friday. Dianne Robinson offered congratulations to Will Maupin; was honored to be elected as Vice President and Council Member for District 6; and announced that there will be a District 6 Meeting on Friday, January 4th beginning at 6:30 PM at Penn Plaza located at1727 Pennsylvania Avenue to address concerns of the Thompson and Pennsylvania neighborhoods. Carol Arends echoed all of the congratulations; looked forward to 2008; welcomed Roy Runyon to the Council; and wished everyone a Happy New Year. Nick Wofford wished everyone a Happy New Year; also welcomed Roy Runyon to public office; and looked forward to working with Roy Runyon to improve voter participation; and finally, congratulated Will and Dianne. Will Maupin looked forward to 2008; and thanked Brad Gehring for running for office. With no further business, President Maupin adjourned the Council Meeting at 6:05 PM. red and Submitted by: r ( ~ { Attest: CAROL ETGEN, City Clerk WILL MAUPIN, City Council President WM:CE:ls:cg AGENDA BILL CrTY OF BREMERTON CITY COUNCIL BILL if 08- () 0 <0 ~~-----.~_._-- DATE SUBMITTED: l/q /0 g 51> ..........................................................................a.......a..... SUBJECT: City Council Meeting Minutes Committee Meeting Date: N/ A for meeting of :JO..Y\ ()..f)..('Y 9 I J.ooCO COUNCIL Mr:<:ETING Date: ..:fo..V\ ()..()..ry 1 to) .;;Loc 8 Department: City Council Presenter: Will Maupin, Council President Phone: (360) 473-5280 SUMMARY: Attached is a summary of the City Council Meeting held ::ro...V\.lMLr'1 q I :2.00 <<8 ATTACHMENTS: Meeting Minutes for ~ CA.V\ CAt'J..,"'f Cf ;).008 I FISCAL IMPACTS (Include Budgeted Amount): N/A APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: Council President N/A N/A N/A COMMITTEE CHAIR COUNCIL PRESIDENT: N8 AI. ~4/~ CONSENT AGENDA ~ GENERAL BUSINESS 0 PUBLIC HEARING 0 RECOMMENDED MOTION: Move to approve the Consent Agenda as presented. COUNCIL ACTION: 0 Approve 0 Deny 0 Table o Continue 0 No Action DIGITAL RECORDING CITY COUNCIL MEETING MINUTES Wednesday, January 9, 2008 The weekly meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, of the NORM DICKS GOVERNMENT CENTER 345 6th Street, Bremerton, Washington, Wednesday, January 9,2008, at 5:30 PM, with Council President Will Maupin presiding. Council members present were Nick Wofford, Carol Arends, Dianne Robinson, Mike Shepherd, Roy Runyon, Adam Brockus, Cecil McConnell, and Brad Gehring. Also present were City Attorney Roger Lubovich; City Clerk Carol Etgen; and Legislative Assistant Lori Smith. The Pledge of Allegiance was led by Council Member Brad Gehrinq followed by the invocation provided by Council Member Mike Shepherd. President Maupin announced that a Pre-Council Session to discuss General Council Business was held prior to the meeting. PUBLIC RECOGNITION & ANNOUNCEMENTS Dianne Robinson announced that the 14th Annual Rev. Dr. Martin Luther King Jr. Celebration Program will be held on Monday, January 21 5t at 10:00 AM in the Presidents' Hall of the Kitsap Pavilion located at the Kitsap Fairgrounds & Events Center. People may contact Pastor Dennis Payne of Ebenezer African Methodist Episcopal Church at (360) 373-1063 for more information. Roy Runyon asked the public to report graffiti on City property at (360) 473-5920 and on private property, the Police at 911. CONSENT AGENDA A. Check Numbers 321696 through 321878; and EFT-7579 through EFT-7593 in the amount of $1,466,434.69; and Regular Payroll in the amount of $718,630.01 for the pay period ending December 31,2007 (#AB08-002) 05:34:20 M/S/C/U (I) Move to approve the CONSENT AGENDA as presented. With no further business, President Maupin adjourned the Council Meeting at 5:35 PM. The Council reconvened in the Council Conference Room for a STUDY SESSION to hear presentations on upcoming agenda items. Attest: P7!ii!:J:!i, L RI SMITH Legislative Assistant CAROL ETGEN, City Clerk WILL MAUPIN, City Council President WM:CE:ls:cg . . DATE SUBMITTED: BILL# 08 - 007 ---_._-~-"------~-_.- AGENDA BILL CITY OF BREMERTON CITY COUNCIL Sf, I.m..................................................................................... SUBJECT: Authorize a contract for TAB NW and amend the City's 2008 Annual Budget to carry forward an item from the 2007 budget. Committee Meeting Date: January 9, 2008 COUNCIL MEETING Date: January 16,2008 Department: DCD Presenter: Andrea Spencer Phone: 473-5283 SUMMARY: In the City's 2007 budget a Comprehensive Capital Project list was prepared. This list included a General Facility line item of $35,000 for the Government Center File Storage. The City requested bids for this project and obtained TAB NW ~ the vendor. This project will not be completed in 2007. It is requested that authorization is given for the approval of the TAB NW contract of $29,845.26 and to carry forward from 2007 the $35,000 General Facility line item to the 2008 City budget. A TT ACHMENTS: DCD Memorandum Capital Improvement Plan, General Facilities (page 277), TAB NW contract with scope of work. FISCAL IMP ACT~ (Include Budgeted Amount): Request to carry forward $35,000 from the 2007 budget to the 2008 budget. COMMITTEE CHAIR COUNCIL PRESIDENT: APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: CONSENT AGENDA ~ GENERAL BUSINESS 0 PUBLIC HEARING 0 ,RECOMMENDED MOTION: Move to authorize the Mayor to approve the TAil NW contract in the amount of $29,845.26 and to amend the 2008 City Budget to carry forward from 2007 the Capital Improvement Plan, General Facilities $35,000 line item for the Government Center File Storage. . COUNCIL ACTION: 0 Approve o Deny o Table o Continue 0 No Action "m"'I"'" , . , J . ; " ,,, .-, . l<'~ " " ; ~t ~ .~ , ' 'r:~v ",,",_, -,., ".' '-"'-~'"' . ::;~~:,~,,:::~}~;~~~ ; DEPARTMENT Of ,J COMMUNITY DEVELOPMENT MEMORANDUM Date: City Council JoAnn Vidinhar, Assistant Director 9'/ December 12, 2007 / To: from: Subject: Authorize purchase of the Government Center Storage Files and amend 2008 budget SUMMARY In the City's 2007 budget a Comprehensive Capital Project list was prepared. This list included a General Facility line item of $35,000 for the Government Center File Storage. In 2007 the City requested bids for this project and obtained T AS NW as the vendor. The project will not be completed in 2007. It is requested that authorization is given for the approval of the T AS NW contract of $29,845.26 and to carry forward from 2007 the $35,000 General Facility line item to the 2008 City budget. Capital Inlprovenlent Plan 2007 - 2012 Projects by Year General Facilities Proiect Title 2007 I 2008 I 2009 I 2010 I 2011 I 2012 Fire Station #l - !\list:. improvements 10,000 Fire StatioB #2- C,lfpet 15,000 fire Station #2 - Untried !mprovcllH'lIb 5,000 5,000 Fire "tation H2-IIVAC ImpnJWmult" 5,000 5,000 Fi 1',' Sta [j.m #2 " i\li~r. imprmcil!l'nts 10,000 5,000 Fin' Station il2 - l'lumhing ImpI'OH!lH'lll:< 5,000 5,000 Fire Sti,Lion #1 ,. Remodd KildH'1I 4~ Dining 20,000 Fire Station #2 - Hoof I{"plan'i\lcnt 45,000 Fire Station #1 - Seal Floor 10,000 Fin: :';tatioll #2 - I n~tall Wash F :;cility 20,000 Fin: Statiun #3 - Carpet ] 5,000 Fire Station #3 - Electrica! improY('fll('nts 5,000 5,000 Fir!;' Station !U - jVledwnil:ai impl'o\'cllh'l!ls 5,000 Fin' Station #.3 - Mise ImproHHl.:nts 15,000 5,000 ] 0,000 Fire Station #3 - Plumhing improvcllH:nts 5,000 5,000 Fire Sfatinn liJ - Rc-Roof 45,000 Fire Sla/iull #,3 - Seal Floor 10,000 Fire Statioll #3, - B;,~ Door R('phH":IlH.'IH 50,000 Fire Station \VardlOllse.. tIel', ImprOvenH'nh 5,000 Fife ~1atio<l #3.. R,'I1Wdd of l":iteh('n & Dining 20,000 Fir,. St,lti';n \VardlOllw - Cons!nl('t R(';;troo'll 5,000 Hn' Station \V'lrellouse.. ,'ie;; (;;l!';we Door 8,000 'GoV\'l'HmelH CCllh.' .. File Storage 35,000 (;'JI'u'nmen! Lilt.. Sel'Hrlt} ~} p~~~radl~,': 12,000 Go\'!'nwwilt enL .. lI:llllI! Fin' ~llPP ":vskm ]5,000 i;;;','.f/cnoE:ot ( HL - ) 1, -fn ;~;~i1Jza~'oa of .\.p~l('f 5,000 Library Btli:dill~" .'Ii:<I'. Illljli'U\,\'lIH'H!s 15,000 5,000 15,000 5,000 25,000 5,000 Perndt f. .t':1(::1" .. nooi' nCiin H,;:pa i r:itr plan: 12,000 SOC HaHd;~:s .. ('fHl~::{:'Htt S;'(}n~~:.. \l'e;l 12,000 '-:0(; BHHdh~~ - I\!~:-::t.:< frnpro\'('f,,~:ur',; 5,000 3,000 4,000 5,000 ~,~( )(~ BlIiltUn. P,lillt !. \h'ri"l' 15,000 Grand Total 289,(100 68,000 65,000 Y),OOO 60,000 50,000 277 Robert Herriford TAB Northwest 4524 Tacoma Avenue Sumner, WA 98390 253/299-7000 Phone 253/826-0335 Fax 800/ 333-9098 Toll free ~~LQ.f()rcJ tll!2QO~Q!I! Quotation for Products and Services prepared for: JoAnn Vidinhar City of Bremerton Department of Community Developement 345 6th Avenue Bremerton, WA 98337-1858 Office Email 360-473 - 5297 JQi2!llJ_YIQlrlt@I@.~relller ton "!9c-'d!! Date Quote # Terms 12/11/2007 RRE-0807-B Net 30% 5 Weeks Destination GSA Delivery FOR Point Ship Via We are pleased to submit the following quotation Unit Extended Model # Description Qmmtity Price Investment M680 Anti-tip track with grout 68 $ 34.69 $ 2,358.92 M915 Anti-tip Brackets 22 $ 38.22 $ 840.84 M614 Particle board deck 119 $ 3.15 $ 374.85 M608 Channels, hrdwr. & grout 119 $ 1.95 $ 232.05 M610 Threshold 34 $ 9.00 $ 306.00 M618 Vinyl Composition Tile 3 $ 78.61 $ 234.26 M611 Deck end caps 9 $ 7.16 $ 64.44 M3002-042-15.25-** LP fixed carriage 3'6" x 15.25" I $ 240.69 $ 240.69 M3000-042-30.25-** LP Movable carriage 3'6" x 30.25" II $ 569.21 $ 6,261.31 M905 Chain Guard covers LP 11 $ 43.37 $ 477.07 M907 Fixed Chain Guard cover LP 1 $ 13.01 $ 13.01 M913 Safety 3-spoke handle 11 $ 73.19 $ 805.09 M694 Rail Stops 1 $ 26.35 $ 26.35 L&T shelving Open storage 88"high with 7 openings 1 $ 6,115.35 $ 6,115.35 RSMB-15 Reference shelf kit 15" 1 $ 36.86 $ 36.86 RSMB-30 Reference she1fkit 30" 5 $ 39.58 $ 197.90 RS-3012 Reference shelf 5 $ 32.80 $ 164.00 Sub Total $ ]8,748.99 r nstallation $ 3,350.00 Freight estimated GSA Total $ 22,098.99 Current LFl 4938 Additional LFI 1502 % Gmwth 30% Total LFI 6440 Customer Acceptance: Date: This proposal is valid until Price docs illclude sales tax if applicable 1115/2008 Robert Hcrriford TAB Northwest 4524 Tacoma Avl:nue Sumner, W A 98390 253/299-7000 Phone 253/826-0335 Fax 800/333-9098 '1'0\1 free r1}E[0.(lI~L@taj;J.n\^/_cQfJl Quotation II-Dec-07 Client ---> Attn, --> Project --> Phone --> Fax ----> Dt.'Scription Total Investment TAB NOI'thwest supplies pricing Labels & supplies for conversion-forward filing Tab Northwest will take the supplied data from the City of Bremerton for all building locations, This data will be modified to have the street/avenue name as the primary information, followed by the address number. The data will than be used to create a color-coded label for each folder. This label will be applied to the side of each folder for the ability to find the folder on the flat shelving. lnitial folders will have only side tab labels. Future folders will be a 2Tab folder that can be used in a drawer or in the new flat shelf filing system. Manila side tab folder letter 11 pt. Legal Side tab color coded label factory applied Manila two tab folder letter II pt., short body, Legal On demand labels for side tab filing * Parts Sub-Total Freight UPS Ground lnside Delivery and Installation Total * On demand lables will be bill as they are ordered. Customer Acceptance X___ Quote is good for 60 days. City of Bremerton, Community Development JoAnn Vidinhar Conversion and supplies pricing 360-473-5297 360-473-5278 Model # Unit Price Quantity 1105-50 SERV-632I 1327-00 SERV-6310 12,000 $ 12,000 $ 500 $ $ 0.18 0.38 0.19 0.29 $ $ $ $ $ $ N/C $ 2,160.00 4,560.00 95.00 6,815.00 931.27 7,746.27 By executing above, the customer certifies that the terms and conditions set forth are correct and reflect the mutual agreement betw!o.'6n TAB Northwest and the customer TAB NW is hereby duly authorized to provide product and/or services as outlined above to the customer, and the customer agrees to pay TAB NW for such products and services. DA TE SUBMITTED: January 2.2008 AGENDA BILL CITY OF BREMERTON CITY COUNCIL M 08-oog 51= ........................................................................................ SUBJECT: Professional Services Agreement (PSA) with RH2 Engineering, Inc. for Reservoir Seismic Upgrade Design Committee Meeting Date: January 9, 2008 COUNCIL MEETING Date: January 16.2008 Department: PW&U. Engineering Presenter: Mike Mecham Phone: 473-5288 SUMMARY: Seismic upgrades will be done at Reservoirs 19, 17/20, and 15/18. RH2 Engineering will provide design services and assistance during construction. Design services include developing FLO- LOC equipment specifications, process and instrumentation control design, and developing contract documents. Services during construction include submittal review, vendor work review, field equipment testing, startup assistance, and training. ATTACHMENTS: 1. Council Summary; 2. Professional Services Agreement; 3. Exhibits A, B, C, P FISCAL IMPACTS: The project is funded by DWSRF Loan (# 03-65103-010). The consultant contract amount is $34,000. The project is included in the 2008 budget; however, a budget adjustment is required. APPROVALS: C7J' DEP AR TMENT DIRECTOR:....::::...------:J . CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: I CONSENT AGENDA ai PvJ ComVVli{.t<L d-Ja.ir: COUNCIL PRESIDENT: ...- ~ RECOMMENDED MOTION: Move to appro .e the ofessiona1 Services Agreement with RH2 Engineering, Inc. to provide engineering design and construction assistance services for seismic upgrades at Reservoirs 19, 17/20 and 15/18 and authorize the Mayor to finalize and execute the necessary agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: 0 Approve 0 Deny 0 Table [m/ Agenda Bills 200X/PSA with RH2 - Seismic o Continue 0 No Action COUNCIL SUMMARY PROFESSIONAL SERVICES AGREEMENT WITH RH2 ENGINEERING FOR RESERVOIR SEISMIC UPGRADE DESIGN Summary Seismic upgrades will be done at Reservoirs 19, 17/20, and 15/18. Upgrades consist of installing FLO-LOC seismic sensors and control equipment to isolate these reservoirs during a significant earthquake. RH2 Engineering will provide design services and assistance during construction of this project. Design services include developing FLO- LOC equipment specifications, process and instrumentation control design, and developing contract documents. Services during construction include submittal review, vendor work review, field equipment testing, startup assistance, and training. Total value of consultant contract is $34,000 Fiscal Summary This project is being funded by a Drinking Water State Revolving Fund (DWSRF) loan from the Washington State Public Works Board. The loan fund is summarized in the table below: The DWSRF loan funds seismic upgrades at several reservoirs; approximately $180,000 was expended at Reservoirs NO.5 and 8 from 2004 - 2006. The current project upgrades Reservoirs 19, 15/18 and 17/20 and completes all work to be funded by this loan. The estimated cost of this project is $250,000; the 2008 budget is $100,000. Two issues have combined to cause the 2008 costs to increase. First, initial estimates assumed that the construction at each reservoir site could be completed using City Labor Forces under' the statutory limit of $50,000/site; however, further design in 2007 subsequent to the budget development indicated that this was not possible. In addition, staff assumed that the FLO-LOC seismic sensors and control equipment would be purchased in 2007, and installed in 2008; however, this purchase was not completed in 2007 due to competing priorities and workload. Therefore, the 2008 budget will require an adjustment to complete the construction; this adjustment will be requested when the construction contract is presented to the City Council for approval. DWSRF Loan 03-65103-010 Values Loan Amount $505,000 Loan Fee (included in Loan Amount) $5,000 -- I Match Required 0% Term 20-years Loan Execution Date July 28, 2004_ Loan Expiration Date July 31,2008 -- Interest Rate 1.5% Ann_uaIJ2~bt ~~rv~~{6PPloxL_________~!OOO _ - ] Clly of !l/,('lIierlon ReserVOIr SciSf!IlC Upgf'ude j)esign aw' ,\gcllda Bills 20(8)['S;\ with RII2 Sci'l1lk JUflUf.liJ' ~()08 PROFESSIONAL SERVICES AGREEMENT With RH2 Engineering for Reservoir Seismic Upgrade Design The City of Bremerton ("City") and RH2 Engineering, Inc. ("Consultant"), referred to collectively as the "Parties," enter into the following Agreement for professional services: I. Scope: The Consultant agrees to perform the services more specifically described in the Scope of Work, attached hereto in Exhibit A, which is incorporated by reference herein. The Scope of Work may be modified only pursuant to Section VII.G. of this Agreement. If the Scope of Work provides for unspecified additional services such services shall only be performed upon the express written request of the City. Consultant further represents that the services furnished under this Agreement will be performed in accordance with generally accepted professional practices in effect at the time such services are performed. II. Term: The City and the Consultant agree that work will begin on the tasks described in Exhibit A immediately upon execution of this Agreement. This Agreement terminates on September 1, 2008, unless another date is substituted pursuant to Sections IX. The parties agree that the work described in Exhibit A is to be completed as provided for in the work schedule attached hereto in Exhibit C; provided however, that additional time shall be granted by the City for excusable delays or extra work as provided for in section IX (A) of this agreement. III. Compensation: In consideration of the services provided pursuant to this Agreement, the City shall pay Consultant in an amount not to exceed $34,000.00. Consultant's charges and bills shall conform to the fee schedule attached hereto as Exhibit B and incorporated herein by this reference. The Consultant shall submit regular billing statements detailing work performed and amount charged on each task or portion thereof. The descriptions shall conform to and fall within the categories set out in the Scope of Work and/or Pay Schedule. Upon receipt of a conforming billing statement, the City shall promptly process payment. PROVIDED, HOWEVER, the City reserves the right to prioritize scoped work and accelerate and/or delay work tasks under the time frame set forth in Section II herein. The Consultant's labor rates and billing fees shall be as delineated in Exhibit B. Consultant shall not perform work beyond the Scope of Work, nor shall be compensated for such work, unless the Scope of Work or amount of compensation is modified pursuant to this Agreement. Consultant shall only be compensated for additional services if requested pursuant to Section I and, if not otherwise provided, such compensation shall be in: accordance with Exhibit B. If a billing statement does not conform to this Agreement, the City may withhold payment until the statement is brought into compliance. Such withholding does not relieve Consultant of its obligations under this Agreement. ProfeSSIOnal .)'erv/ces Agreemc/// SClsmic Rescrl'Oir Upgrade DeSign Brcmer/on'RH2 F:ngll1ecrll1g JanllwJ' 2008 Page lof6 IV. Relationship of Parties: Consultant represents that it is skilled in the matters addressed in the Scope of Work and is performing independent functions and responsibilities within its field of expertise. Consultant and its personnel are independent Consultants and not employees of the City. Consultant and its personnel have no authority to bind the City or to control the City's employees and other Consultants. None of the benefits provided by the City to its employees, including, but not limited to, compensation, insurance, and unemployment insurance are available from the City to the employees, agents, representatives, or sub-Consultants of the Consultant. Consultant will be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, representatives and sub-Consultants during the performance of this Agreement. The City may, during the term of this Agreement, engage other independent Consultants to perform the same or similar work. As an independent Consultant, Consultant is responsible for its own management. The City's administration and enforcement of this Agreement shall not be deemed an exercise of managerial control over Consultant or its personnel. As an independent Consultant, Consultant is responsible for payment of all taxes and licensing fees necessary to perform its obligations under this Agreement. These taxes and fees include but are not limited to State industrial insurance, Business & Occupation, State professional licensing, and City business licensing. If any taxes or fees due the City have been declared delinquent, the City may withhold the delinquent amount, plus any additional charges arising from the delinquency, from any payments due Consultant. V. Indemnification: Consultant shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the performance of this Agreement, except for that portion of the injuries and damages caused by the City's sole negligence. The City's review or acceptance of any of the work when completed shall not be grounds to avoid any of these covenants of indemnification. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Consultant and the City, its officers, officials, employees, agents and volunteers, the Consultant's liability hereunder shall be only to the extent of the Consultant's negligence. IT IS FURTHER SPECIFICALLY AND EXPRESSL Y UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE CONSULTANT'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. Proft!sslOnal Services ,lgf't!emel1f Seismic Resen'olr lipgrade Do'sign Hrell/erlon/RH2 Engmeerll1g .!anlfOlJ' 2008 Pago' 2 0/6 VI. Insurance: The Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees, sub-consultants or sub-Consultants. Before beginning work on the project described in this Agreement, the Consultant shall provide a Certificate of Insurance evidencing: 1. Automobile Liabilitv insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and 2. Commercial General Liabilitv insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCD) if applicable; and employer's liability; and 3. Excess Liabilitv insurance with limits not less than 1,000,000 limit per occurrence and aggregate. 4. Professional Liabilitv insurance with limits no less than $1,000,000 limit per occurrence/claim. Any payment of deductible or self insured retention shall be the sole responsibility of the Consultant. All required policies shall be provided on an "occurrence" basis except professional liability insurance (if required), which may be provided on a "claims-made" basis. The City shall be named as an additional insured on the Commercial General Liability insurance policy, as respects work performed by or on behalf of the Consultant and a copy of an endorsement that is acceptable to the City, which names the City as an additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all the required insurance policies and endorsements. The City further reserves the right to reject any unacceptable policies and/or endorsements. The Consultant's Commercial General Liability insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. The Consultant's insurance shall be primary insurance as respects the City and the City shall be given thirty (30) days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. The City also reserves its unqualified right to require at any time and for any reason, proof of coverage in the form of a duplicate of the insurance policy with all endorsements as evidence of coverage. ProfeSSIOnal S'en'lces Agreement SelSllllc ReserVOir Upgrade DeSign Bremerton/Rf/2 Lngmeel'/ng JlInll{J}),2008 Page 3 0/,6 VII. General Conditions: A. Reports and Information: When requested by the City, Consultant 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. Consultant shall maintain accounting records in accordance with Generally Accepted Accounting Principles (GAAP) to substantiate all billed amounts. B. Ownership and Use of Records and Documents: Original documents, drawings, designs and reports, including those in electronic format, developed under this Agreement are the property of the City. All written information submitted by the City to the Consultant in connection with the services performed by the Consultant under this Agreement will be safeguarded by the Consultant to at least the same extent as the Consultant safeguards like information relating to its own business. If such information is publicly available or is already in Consultant's possession or known to it, or is rightfully obtained by the Consultant from third parties, Consultant shall bear no responsibility for its disclosure, inadvertent or otherwise. All data, documents and files created by Consultant under this Agreement may be stored at Consultant's office in Bothell, Washington. Consultant shall make such data, documents, and files available to the City upon its request at all reasonable times for the purpose of editing, modifying and updating as necessary until such time as the City is capable of storing such information in the City's offices. Duplicate copies of this information shall be provided to the City upon its request, and at reasonable cost. All documents, including all reports, drawings, specifications, computer software or other items prepared or furnished by Consultant pursuant to this Agreement, are instruments of service with respect to the project and are the property of the City. Any reuse by the City for other than the specific purpose intended will be at City's sole risk. C. Work Performed at Consultant's Risk: Consultant shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and sub-consultants in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at Consultant's own risk, and Consultant shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. D. Place of Work: The Consultant shall perform the work authorized under this Agreement at its offices in Bothell, Washington. Meetings with the City staff as described in Exhibit A, Scope of Work, shall take place at the City's offices, or at locations mutually agreed upon by the parties. E. 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. ProfessIOnal SenKes Agreement Seismic Neserwnr Upgrade Design Bremerton/Nfl2 Engmeermg .fonum)' 2008 I'uge -I of 6 F. Severability: Should any part of this Agreement be found void, the balance of the Agreement shall remain in full force and dIect. G. Modification: This Agreement may only be modified by written instrument signed by both Parties. H. Written Notices: All communications regarding this Agreement shall be sent to the parties at the addresses listed below by registered or 1 st class mail, or by personal service, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in wTiting. City Address: Consultant Address: City of Bremerton 345 Sixth St. Bremerton, W A 98310 RH2 Engineering, Inc. 12100 NE 195th Street Suite 100 Bothell, W A 98011 I. Waiver: Failure to enforce any provision of this Agreement 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. J. Non- Waiver of Breach: The failure of the City to insist upon strict performance of any of the covenants and agreements contained herein, or to exercise any option herein conferred in one or more instances shall not be construed to be a waiver or relinquishment of said covenants, agreements or options, and the same shall be and remain in full force and effect. K. Compliance with Laws: Consultant shall comply with all applicable Federal, State, and local laws in performing its obligations under this Agreement. L. 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. M. Attorneys' Fees: In the event of litigation to enforce any of the terms or provisions herein, each party shall pay all its own costs and attorney's fees. N. Assignment: Any assignment of this agreement by the Contractor without the written consent of the City shall be void. VIII. Nondiscrimination: Consultant shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status, disability, or sexual orientation except for employment actions based on bona fide occupational qualification. ProfessIonal SenJlces /lgrel!t11t!l1t Seismic Reservoir Upgrade Oesign Brllmer!o/1/!?H2 Engl/Jllerlng Janllw)' 2008 Page 5of6 IX. Termination: This Agreement shall remain in force until completion and acceptance of the services, terminated by written instrument upon mutual consent, or by the City of Bremerton for convenience. This Agreement may be immediately terminated for cause by a Party if the other Party substantially fails to perform through no fault of the tenninating Pat1y, and the non- perfonning Party docs not commence correction of the failure of performance within thirty (30) day.s of the terminating Party's sending notice to the non-performing Party. Any Notice by Consultant shall include a report showing the status of all items listed in the Scope of Work ClilTent through the termination date. If the City receives reimbursement by any federal, state, or other source for work described in Section I herein, and that funding is withdrawn, reduced or limited in any way, or the project is cancelled or substantially reduced after the execution date of this Agreement and prior to the completion of the work, the City may summarily terminate this Agreement. A. Excusable Delays: The right of Consultant to proceed shall not be terminated nor shall Consultant be charged with liquidated damages for any delays in the completion of the work due to: I) any acts of the federal government in controlling, restricting, or requisitioning materials, equipment, tools, or labor by reason of war, national defense, or other national emergency; 2) any acts of the City, its consultants, or other public agencies causing such delay; and 3) causes not reasonably foreseeable by the parties at the time of the execution of the Agreement that are beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God, fires, floods, strikes, or weather of unusual severity. PROVIDED, HOWEVER, that the Consultant must promptly notify the City within ten (10) calendar days in writing of the cause of the delay. If, on the basis of the facts and the terms of this Agreement, the delay is properly excusable, the City shall, in writing, extend the time for completing the work for a period of time commensurate with the period of excusable delay. B. Rights Upon Termination: In the event of termination, the City shall pay for all services performed by the Consultant to the effective date of termination, as described on a final invoice submitted to the City. After termination, the City may take possession of all records and data within the Consultant's possession pertaining to this project which may be used by the City without restriction. Any such use not related to the project which Consultant was contracted to perform shall be without liability or legal exposure to the Consultant. CITY OF BREMERTON CONSUL T ANT By: its: Date: By: its: Date: Approved as to form: Attest: Bremerton City Attorney City Clerk ProfessIOnal .'len' ices Agreement SelSl/llc ReserVOir Upf<rade DeSign Brelllerton/R/-/2 Engineerrng JOllllm)l 2008 Page 6 qf6 Exhibit A: Scope of Work Reservoir Seismic Upgrade Design BACKGROUND The scope of this project consists of design, installation and start-up services for a FLO-LOC seismic system at three (3) reservoir sites that will isolate the reservoirs during a seismic event. The isolation valves at each site will close, thereby maintaining the reservoir water volume. The isolation valves at the three reservoir sites are described as follows: Reservoir Valve Type Comments 19 12" CIa-Val altitude valve Solenoid de-energize will close valve 17/20 (2) 12" butterfly valves Res. 17 only to be isolated using (2) valves. Valves to be actuated using FLO- LOC Model FP3200 actuator. 15/18 (1) 12" butterfly valve Res. 15 only to be isolated. Valve to be actuated using FLO-LOC Model FP3200 actuator. An external electrical enclosure will be installed at each site to house the FLO-LOC equipment and existing RTU telemetry/control panels. Upon completion of panel installation, field conduit and wiring, and required programming, the FLO-LOC seismic system will be started-up and tested. SCOPE OF WORK Task 1- Site Visit The purpose of the site V1S1t 1S to collect all information required for a comprehensive electrical, instrumentation and control design. 1. Visit the existing seismic controlled reservoir with City staff 2. Visit Reservoirs 19, 17 /20 and 15/18 with City statI. Task 1 Deliverables 1. City of Brcmerton deliverables o ,\ utocon as- builts (already received). o City of Brcmerton electrical standards. 2. RH2 deliverables - none. Exhihlf A Page / 0/'3 Task 2 - Design Proyide elect11cal, instrumentation and control plans and specifications to the City of Bremerton for the seismic control system project. 1. Develop Project Schedule. 2. Create FLO-LOC equipment specifications (Division 17). 3. Create piping and instrumentation diagram design (Plans). 4. Electrical and instrumentation plans and specifications (Divisions 16 and 17 and Plans). a. Develop instrumentation input and output list, including scaling of analogs. b. Provide instrumentation detail sheets for each device. c. Develop instrumentation wiring diagrams showing cable and conductor identification, colors and sizes. d. Determine power requirements for each site and develop conduit and wiring schedules. Provide information to City staff to develop electrical site plans. City staff will develop civil and electrical site plans. e. Provide electrical riser drawing. f. Provide panel layout drawings that show how existing and new panels will be mounted in new enclosure. 5. Human-Machine Interface user interface specifications (Division 17). 6. Control logic specifications (Division 17). Task 2 Deliverables 1. City of Bremerton deliverables o Contract documents other than electrical plans and Divisions 16 and 17 specifications. o Site and mechanical plans. o Reviewed RH2 documents. 2. RH2 deliverables o Project Schedule o Electrical, instrumentation and control plans. o Division 16 & 17 specifications. Task 3 - Services During Construction Provide electrical, instrumentation and control services dU11ng the construction phase of the project. 1. Pre-construction meeting with general contractor and SCADA integrator. 2. Review submittals/shop drawings. 3. Review SCADA integrator work. 4. Seismic control system testing at each site and from operations control room. 5. Facility start-up with contractors. 6. City of Brcmerton operations staff training. Task 3 Deliverables 1. City of Brcmerton delivcrables o Equipment submittals/shop drawings. Exhlhlt /1 Page :1 on o Reviewcd testing and training documents. ') RH2 dclivcrablcs o Reviewed submittals/ shop draw-ings. o Testing chccklists and procedures. o Training documenta cion. Task 4 - Additional Services Provide additional services as requested by thc City, including cost cstimating, construction management assistance, and othcr services idcntified during the course of the desibl11 and/ or constlUccion. Funds will not be expended from this task without written prior authorization from the City. E-mail is considered suitable authorization. Ex/uhl! ;/ Page 3 0/3 Exhibit B: Compensation Reservoir Seismic Upgrade Design PAY SCHEDULE TASK ITEM PAYMENT AMOUNTS** $2,300 $18,000 $8,700 $5,000 $34,000 Task 1 - Site Visit Task 2 - Design Task 3 - Services during Construction Task 4 - Additional Services TOTAL ** Not to exceed payment amounts }<,\'/uhll H Page / of / Exhibit C: Term and Schedule Reservoir Seismic Upgrade Design SCHEDULE ITEM 70(;;) Design Documents 100% Dcsign Documents Construction Assistance Contract Term (Completion) DUE DATE Fcbruary 5, 2008 i\farch 3, 2008 April- July 2008 September 1, 2008 EyluhltC Page I all Exhibit D: Aerial Maps Reservoir Seismic Upgrade Design 'l 'he three reservoir sites are: Reservoir 19 Reservoir 17/20 Reservoir 15/18 E\-h,bll LJ Page lofl DATE SUBMITTED: January 8,2008 BILL # oB-- 00 cr AGENDA BILL CITY OF BREMERTON CITY COUNCIL SCl .....a.........u.a.........a.sm..a..................a...e.............u..............m....., SLJB.JECT: Agreement with Asuris for Prescription Drug Coverage for LEOFF I Retirees Committee Meeting Date: ~nuarY:2, 2Q9~__ COUNCIL MEETING Datc:_!an~~ry 16, 2008 Department: ~i.!!ancial Ser'0_ces _____ Presenter: Carol Etgen Phone: 360-697-5323 smVIMARY: Asuris will no longer provide Medicare D coverage to eligible retirees in the manner they have after December of 2007. They are now otfering to pay 100% of the retiree prescription drug costs for covered prescriptions for $178 per eligible retiree per month. They will accept the risk of over-paying and receive the benefit if they do not payout that amount per employee each month. ATTACHMENTS: Memorandum FISCAL IMPACTS (Include Budgeted Amount): $106,800 - fillly budgeted for in 2008. APPRO V ALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: .~ COMMITTEE CHAIR COUNCfL PRESIDENT: ~. ~~ . . ,/ r ~C- ._ ~~~ CONSENT AGENDA ~ GENERAL BUSINESS 0 I PUBLIC HEARING 0 RECOl\tIMENDED MOTION: Authorize the City Clerk to expend $106,800 with Asuris for Part D Prescription drug coverage for eligible LEOFF I retirees COllNCIL ACTION: D Approve D Deny 0 Table o Continue 0 No Action {:atr()1 L If'taen., {:M{: vmw d'dlle CitY {]elrD\. CitY d' IBn~nllertonl .l.4(J {ltll ~treet 13J"emertal!., 'W A \JSJJa (:100) 473-{j323 MEMORANDUM Date: January 9,2008 To: City Council from: Carol Etgen, City Clerk RE: Asuris Prescription Drug Coverage for Eligible LEOFF I Retirees The City hired Willis Consulting Firm in 2006 to review the City's options in providing Medicare D coverage to eligible retirees and reviewing either having employees purchase individual Part D Plans and reimbursing the retirees or hiring a firm to provide the coverage for all employees. It was determined it would be huge cost savings to hire Asuris to provide prescription drug benefit coverage for LEOFF I retirees. From April 2006 to August of 2007, Asuris paid the prescription drug cost minus the co-pay. The City was billed for the co-pay by pharmacies and retirees. In August of 2007 Asuris began to pay the full amount and billed us for the co-pay. Asuris will no longer provide this service. They are now only willing to pay 100% of the retiree prescription drug costs for covered prescriptions. Asuris annualized employee claims and have agreed to provide total prescription drug coverage for all covered retirees for $178 per employee per month in premium payment. They will accept the risk of over-paying and receive the benefit if they do not payout that amount per employee each month. Kathy Autry of Willis prepared a similar annualized claims review and projected the cost would be approximately $99,657 in 2008 based on 2007 claims. Asuris has agreed to provide the service for a total of $106,800. If we were to pay full price for the prescriptions Kathy estimates it would cost $138,562, so there is still a significant cost savings for the City. The added benefit to the City comes in having Asuris administer the full prescription program - we will not have the burden of paying individual drug stores and retirees for co-pays, nor have to maintain personal medical information as received in the past on every prescription drug claim. When the program was originally evaluated, it was determined Asuris would provide the most prescription drug coverage for our retiree population at the best price. We will be free to drop this program at any point if a future evaluation determines this program no longer provides the expected value. Willis will be asked to perform another evaluation in a year to ensure we are still receiving the greatest cost benefit. I am asking Council to authorize me to expend $106,800 with Asuris in 2008 for Part D prescription drug coverage for eligible LEOFF I retirees. DA TE SUBMITTED: January 3, 2008 BILL # oe - 0 10 AGENDA BILL CITY OF BREMERTON CITY COUNCIL ~I/ ............................................................................................ SUBJECT: Amendment to Contract with Humane Society Committee Meeting Date: January 9,2007 COUNCIL MEETING Date: January 16, 2007 Department: Financial Services Presenter: Carol Etgen, City Clerk Phone: 360-473-5323 SUMMARY: The current animal control contract with the Kitsap Humane Society provides for annual review of scope of services and compensation. The 2008 proposal includes an increase of the annual compensation amount by 3% to a total contract price of $206,558. The increase is due to CPI changes which will allow for the provision of a full scope of services to the City of Bremerton. An additional change requires payment of specific impoundment costs above and beyond 30 days when Court ordered. ATTACHMENTS: Original Contract, Amendment NO.3 and Proposed Amendment NO.4 FISCAL IMPACTS (Include Budgeted Amount): $206,558 which is fully provided for in the adopted 2008 budget. APPROVALS: DEP ARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MAYOR: CONSENT AGENDA GENERAL BUSINESS D PUBLIC HEARING D RECOMMENDED MOTION: Approve Amendment NO.4 to the agreement with the Humane Society and authorize the Mayor to finalize and execute the agreement with substantially the same terms and conditions as presented. COUNCIL ACTION: D Approve D Deny D Table D Continue D No Action CONTRACT l\;fODIFICA TION AGREEMENT NO.4 BET\VEEN THE CITY OF BREMERTON AND KITSAP HU~1ANE SOCIETY This contract modification agreement specifically amends the Agreement for Animal Control Services entered into between the City of Bremerton and Kitsap Humane Society ("Society") on August 22, 2002 and as modified on January 20, 2004, January 20, 2006 and January 29, 2007. All provisions in the Contract shall remain in full force and effect except as expressly modified by this document. For valuable consideration and by mutual consent of the parties, the modifications to the Contract are as follows: I. Section 4. Compensation, is modified as follows: Compensation. The City shall pay the Society for its services the sum of Two Hundred Four Thousand Five1fun-,1r~d J!nd FjfiyJ~jghtJ291~rs and No C~nt~J5204,558.00lon an annualized basis or Seventeen Thousand Forty Six Dollars and Fifty Cents ($17,046.50) per month. Additionally, the City will pay fuel costs that exceed $3.50 per gallon in an amount not to exceed Two Thousand Dollars ($2,000.00) for 2008. The City shall pay the Society for costs of impoundment of animals exceeding 30 days due to the ~remerton Municipal Court requiring the retention of evidence (animals). Such Boarding costs for impoundment beyond 30 da}:s shall be limited to: . Small Animals - $16.29 per day. or $114 per week ~~I Animals (Livestock) - $2lZ2 per day>- or $152.04 per week In.th~__~Y~illJb.~5Q_c.i.~tyJinQ~jtn~~~_~~_~rY_JQJNi![QJb~J!nimi!t~__~LQt.h~L_s_h~Jt~nLfQLCQJJltQnl~g~Q impoundment beyond 30 days the City shall pay the Society for additional expenditures for veterinarian costs including medicine and lab work which will be billed separately at the Societ~sts. The Society shall notify the City on the 25tl1-.dillf it appears Court ordered impounded animals will be sheltered for over 30 days. lI. Society accepts all requirements of this Contract Modification by endorsing below. Society further agrees that this Contract Modification constitutes full and final settlement of all of the Society's claims for contract time and for all costs of any kind. This document will become a supplement of the contract and all provisions will apply hereto. It is understood that this Contract Modification shall be effective when appl'oved by the City of Bremerton. CONTRACT MODIFICATION NO.:H IN WITNESS WHEREOF, the parties have executed this Contract Modification on the day and year as written below. KITSAP HUMANE SOCIETY THE CITY OF BRElVIERTON By Its By _~ary Bozeman Its_~ayoL_ Executive Director DATE: DATE: APPROVED AS TO FORM: ATTEST: Bremerton City Attorney City Clerk NOTICES TO BE SENT TO: NOTICES TO BE SENT TO: Executive Director Kitsap Humane Society 9167 Dickey Road Silverdale, W A 98383 (360) 692-9745 City Clerk City of Bremerton 345 6th Street, Suite 600 Bremerton, WA 98337 (360) 473-5290 phone (360) 473-5200 fax CONTRACT MODIFICATION NO. ;\1 2 CONTRACT MODIFICATION AGREEMENT NO.3 BET\VEEN THE CITY OF BREMER TON AND KITSAP HUMANE SOCIETY This contract modification agreement specifically amends the Agreement for Animal Control Services entered into between the City of Bremerton and Kitsap Humane Society ("Society") on August 22, 2002 and as modified on January 20, 2004 and January 20, 2006. All provisions in the Contract shall remain in full force and effect except as expressly modified by this document. For valuable consideration and by mutual consent of the parties, the modifications to the Contract are as follows: I. Section 4. Compensation, is modified as follows: 4. Compensation. The City shall pay the Society for its services the sum of One Hundred Ninety T',vo Thousand Eight Hundred Sixteen Dolla-rs and No Cents ($192,816.00) One Hundred Ninety-Eight Thousand Six Hundred Dollars and No Cents ($198,600.00) on an annualized basis Sixteen Thousand Sixty Eie;ht Dollars and No Cents ($16,068) or Sixteen Thousand Five Hundred Fifty Dollars and No Cents ($16.550.00) per month. Additionally, the City will pay fuel costs that exceed $3.50 per gallon in an amount not to exceed Two Thousand Dollars ($2,000.00) for 20061. II. Society accepts aU requirements of this Contract Modification by endorsing below. Society further agrees that this Contract Modification constitutes full and fmal settlement of aU of the Society's claims for contract time and for all costs of any kind. This document will become a supplement of the contract and all provisions will apply hereto. It is understood that this Contract Modification shall be effective when approved by the City of Bremerton. The parties whose names appear below warrant that they are authorized to enter into a contract modification that is binding on the parties of this contract. IN WITNESS WHEREOF, the parties have executed this Contract Modification on the day and year as written below. ~ HUMANE SOCIETY )!J1tL~ ~ By ~~"'~Ll) (~11,EJ' Its Executive Director T~B By Car)' Bozeman Its . Mayor ON DATE: 29T,l/A/O? DA TE:_t/~jo 7 CONTRACT MODTFICA TION NO.3 APPROVED AS TO FO&\1: II Attomey NOTICES TO BE SENT TO: Executive Director Kitsap Humane Society 9167 Dickey Road Silvcrdale, W A 98383 (360) 692-9745 CONTRACT MODIFICATION NO.3 ATTEST: NOTICES TO BE SENT TO: City Clerk City ofBremerton 345 6th Street, Suite 600 Bremerton, WA 98337 (360) 473-5290 phone (360) 473-5200 fax 2 +--------------------------------------------------------------------------+ +Browse: Next Previous First Last Update Delete Restart X - Exit + +Retrieve the Next record + +Found: 10 Record(s) MAINTAIN Contract Transactions + + Contract Number 4295 + + +Vendor Name +Subject +Department +Status Code + + + + + + + + + + + + + Comments + KITSAP HUMANE SOCIETY ANIMAL CONTROL ADMIN SVCS SVC + + + + $181634.00 + 10/01/2002 + + 04/01/2003 + + + + $3000000.00 + 07/01/2003 + + Insurance Type Amount GL $2000000.00 AL $1000000.00 Amount Begin Date End Date Review Date Insurance Total Insurance Review Date 4/03 REVIEW & EVALUATION - THEREAFTER CHANGES TO SCOPE COMPENSATION W/WRITTEN NOTICE B/1 ANY YEAR + + + +--------------------------------------------------------------------------+ AGREEMENT FOR ANIMAL CONTROL SERVICES THIS AGREEMENT is entered into between Kitsap Humane Society ("Society") and City of Bremerton ("City"). WITNESSETH For and in consideration of the mutual promises and agreements hereinafter contained, it is hereby mutually promised, understood and agreed by the parties hereto as follows, to wit: 1. Parties. This Agreement is by and between the City of Bremerton (hereinafter City) and the Kitsap Humane Society (hereinafter Society). 2. Purpose. The purpose of this Agreement is to establish and define the relationship between the parties as it concerns the services to be provided to and by the City of Bremerton and the Society. 3. Tenn. This Agreement shall be effective as of October 1, 2002 or the effective date of a City Ordinance establishing revised animal control regulations, whichever date is later. If no ordinance is adopted by the City by December 1, 2002, this agreement shall be void and have no force or effect. This agreement shall continue until terminated pursuant to Paragraph 7 of this agreement. During April 2003 both parties will review and evaluate the elements of this contract. , 4. Compensation. The City shall pay the Society for its services the sum of One Hundred Eighty-one Thousand Six Hundred Thirty-four and No/100 ($181,634.00) on an annualized basis or $15,136.17 per month. 5. Changes to Compensation and Scope of Services. Unless otherwise agreed, each party may provide written notice to the other party commencing August 1, 2003 and August 1 st of any given year thereafter during the term of this agreement for the purpose of changing the scope of services and/or compensation for such under this agreement. Unless otherwise agreed, these changes shall become effective on January 1 st of the following calendar year. Any changes shall be in writing and signed by both parties. 6. Terms of Agreement. 6.1 The Society agrees to perform the services more specifically described in the Scope of Services, dated May 15, 2002, including any addenda thereto as of the effective date of this Agreement, attached hereto as Exhibit A which is incorporated herein by this reference as if fully set forth. 6.2 The City, through the Prosecuting Attorney, shall be responsible for prosecuting criminal cases and for providing assistance, when requested by the Society, for contested hearings, or civil actions as a result of enforcing violations of City Animal Control Services Agreement 6/13/02 - Page 1 Ordinances or State Statutes relating to animals as defined herein. The Prosecuting Attorney shall provide legal administration of said ordinances and statutes. 6.3 The duties of the Society as set forth herein, shall pertain to all domesticated animals and to certain wild animals. City and other public laws will specify such authority/species. 6.4 The Society during the term of this Agreement, shall function as a non-profit corporation. Provided, that nothing herein contained shall be construed to prevent the Society from collecting fees for the disposition of animals or for other services provided under this agreement. 6.5 The Society shall maintain complete and accurate records of licensing revenues, which may be examined by the City Treasurer or a designated agent. 7. Termination. Either party upon ninety (90) days written notice may terminate this Agreement. In the event of termination, Society shall perform such additional work as is necessary for the orderly transfer of documents and materials to the City and closing of the services rendered. Society shall be compensated for work performed prior to the effective date of termination, plus work required for closing this Agreement. 8. Commission of Animal Control Office.... For the purpose of the enforcement of City Ordinances and State laws, the Bremerton Police Chief shall commission Animal Control Officers of the Society over the age of twenty-one (21) years. PROVIDED, that such commission be conferred at the direction of the Police Chief and may be revoked at will by himlher. PROVIDED FURTHER, that the City shall furnish such employees with a suitable document of authority. 9. Work Perfonned at Society's Risk. Society shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the work hereunder and shall utilize all protection necessary for that purpose. All work shall be done at Society's own risk, and Society shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. 10. Work.rs' Compensation. Society shall maintain workers' compensation insurance and comply with all laws and regulations regarding workers' compensation. 11. Indemnification. The Society shall defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the performance of this Agreement, except for injuries and damages judicially found to be'due to the sole negligence of the City. The City's inspection or acceptance of any of the Society's work when completed shall not be grounds to avoid any of these covenants of indemnification. Animal Control SeNices Agreement 6/13/02 - Page 2 Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115. then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Society and the City, its officers, officials, employees, agents and volunteers, the Society's liability hereunder shall be only to the extent of the Society's negligence. IT-IS FURTHER SPECIFICALLY AND EXPRESSLY UNDERSTOOD THAT THE INDEMNIFICATION PROVIDED HEREIN CONSTITUTES THE SOCIETY'S WAIVER OF IMMUNITY UNDER INDUSTRIAL INSURANCE, TITLE 51 RCW, SOLELY FOR THE PURPOSES OF THIS INDEMNIFICATION. THE PARTIES FURTHER ACKNOWLEDGE THAT THEY HAVE MUTUALLY NEGOTIATED THIS WAIVER. The provisions of this section shall survive the expiration or termination of this Agreement. 12. Insurance. The Society shall procure and maintain for the duration of the Agreement, insurance "of the types and in the amounts described below" against claims for injuries to persons or damage to property which may arise from or in connection with the perfonnance of the work hereunder by the Society, its agents, representatives, employees, subconsultants or subcontractors. Before beginning work on the project described in this Agreement, the Society shall provide a Certificate of Insurance evidencing: a. Automobile Liabilitv insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and b. Commercial General Liabilitv insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and $2,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual and products/completed operationslbroad form property damage. Any payment of deductible or self insured retention shall be the sole responsibility of the Society. The City, its officers, officials, employees, agents and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of the Society and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The Society's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. Animal Control Services Agreement 6/13/02 - Page 3 The City shall be given thirty (30) calendar days prior written notice of any cancellation, suspension or material change in coverage. Proof of coverage shall be provided to the City in the form of a Certificate of Insurance with all the endorsements as evidence of coverage. Approval of required insurance is a condition precedent to the execution of this agreement. The use of any Society subcontractors shall be subject to the same provisions of law, contracting and insurance as then in force and shall further be wholly supervised and administered by the Society without liability by the City. 13. Americana with Disabilities Act. The Society agrees to comply with all provisions of the Americans With Disabilities Act and all regulations interpreting or enforcing such Act. 14. Privileged and Confidential Information. During the term of this Agreement, the City and the Society, to the extent of their right to do so and as required for each to perform its obligations under this Agreement, may exchange proprietary and confidential information. a. Except as specifically authorized by this Agreement, or otherwise approved by the City in writing, all records or other information, documents, and materials furnished by the City to the Society will be used only in connection with work performed under this Agreement. The Society will, .upon completion or termination of this Agreement, transit to the City all records or other information, documents and materials, and copies thereof, furnished by the City to the Society or developed by the Society in the performance of this Agreement. Similarly, the City will return to the Society all of the same type of records and information provided by the Society to the City. b. All proprietary or confidential information, whether received visually, orally, in writing, electronically, or in any other medium, is and shall remain the property of disclosing City or Society for a period of five (5) years or until relieved of that responsibility by the information owner. Venue and Choice of Law Clause. Any action at law, suit in equity, or other judicial proceedings for the enforcement of this contract or any provision thereof shall be instituted only in the courts of the State of Washington, County of Kitsap. It is mutually understood and agreed that this contract shall be governed by the laws of the State of Washington, both as to interpretation and performance. IN ~ESS WHEREOF, this Agreement is signed by the parties this OI.~J of '1f.ld ,20.QeL. day Animal Control Services Agreement 6/13/02 - Page 4 CITY OF BREMERTON KITSAP HUMANE SOCIETY ~/~ L;-z--; 7d:J~- CARY BOZEMAN, Mayor "' ~(L DEPARTMENTAL APPROVAL ~ (O....l\:i KATHLEEN McCIJ SKEY, Director APPROVED AS TO FORM: ..~/~ Animal Control Services Agreement 6/13/02 - Page 5 EXHIBIT A Scope of Services May 15, 2002 The following services will be provided by the Society; 1. 24/7 services. The Society shall act as the Animal Control and Impounding authority for the City, and shall provide impound services and facilities for all animals for which impounding is authorized. Kitsap Animal Control, 9167 Dickey Road NW, Silverdale, Washington 98383,9:00 a.m. - 6:00 p.m. seven (7) days a week, excluding holidays and 24 hours via an answering service dispatched Duty Officer. Animal Control is also available via 911 at CENCOM. Emergency services provided 6:00 p.m. to 9:00 a.m. 24 hours a day, 7 days a week and holidays are as follows: a. Pickup of injured/sick stray domesticated animals. b. Pickup of livestock at large. c. Animals currently threatening public safety. d. Police and fire department assistance. Scheduled holidays are: New Year's Day Martin Luther King Jr. Day President's Day Easter Sunday Memorial Day Independence Day Labor Day Veteran's Day Thanksgiving Day and the day after (2 days) Christmas Day 2. ImpoundmentlRescue. Provided at the Silverdale shelter, via mobile vans and via citizen complaint, BPD/BFD/Officer request or Court order. The Society, while on patrol or by request, shall pick up dogs and/or cats injured or killed on City property. If the owner of any such animal is known, the Society shall request disposition instructions and comply with the same, if reasonable. If the owner of such animal is unknown or unavailable, the Society shall make such disposition of said animal, as it deems necessary or appropriate under the circumstances. The Society, on request, shall assist officers of the Bremerton Police Department in clearing the City streets and roads of livestock or other domesticated animals on said property. PROVIDED, that nothing contained herein shall be construed to place responsibility on the Society for the removal of dead livestock or any other wild animals from City property, nor from other public or private property. The Society shall accept at no charge, dogs, cats and other small pets brought to the shelter by their owners or other person(s). PROVIDED, that animals that have bitten any person within the last ten (10) days so as to have breaks in the skin shall be quarantined. PROVIDED FURTHER, that disposition of said animals Animal Control Services - Exhibit A 5/15/02 - Page 1 shall be at the discretion of the Society. Nothing herein contained shall be construed to prevent the Society from charging for euthanasia, quarantine. redemption (kenneling), disposal or disposition where such services are requested of the Society or deemed necessary. The Society shall not be restricted from seeking repayment or restitution from violators of any City, County or State law or regulation for services or goods provided pursuant to this agreement or in the course of enforcement of law or lawful order. a. Dispatch - Provided via a staff Dispatcher with dedicated FM mobile (vans and Officers), CENCOM, network computer and cell phone connections. b. Complaints - Provided via phone, walk-ins, BPD referral or WESTNET action. Responded to by trained Officers either in the field or by phone, or both. c. Investigations - Officers are Academy trained and commissioned Washington Humane Officers. Additional training/schools provide investigative processes, complaint resolution, customer service, animal handling, and court procedures. All case documents are confidential, however, are subject to Public Disclosure laws and are jurisdiction shared upon authorized release. d. Citations - Animal Control Officers are empowered by commissioning and contract to issue misdemeanor and infraction citations. e. Courts. Animal Control Officers are "Officers of the Court" and can provide complaint, witness, investigative and expert testimony. The Society shall provide its Animal Control Officers the necessary courtroom training to present evidence and provide testimony in the prosecution of all infraction violations of any ordinance pertaining to animals as herein defined. 3. Intake. Provided at the Silverdale shelter, a twelve (12) year old, state of the art, full service animal shelter. Intake typically consists of computer registration, microchip and tattoo screening, license and identification tag recording and cross referencing with known strayllost records. Further, all animals are medically evaluated, temperament tested, vaccinated, wormed or treated as appropriate. Stray animals are posted on the Internet by photo and a narrative description. A "Lost Pet Line" telephone recording is also used. . 4. Quarantine. The Society, under the authority and at the direction of the Health Officer of the Bremerton-Kitsap County Health Department, shall, pursuant to the direction of the Health Officer or in accordance with the request of the owner, quarantine all animals that shall have bitten a person so as to have broken the skin. PROVIDED, that the responsibility for the release of such animals from confinement shall be that of the Health Department. It is the responsibility of the Health Officer to monitor animals under, confinement. The Society shall cooperate with the Health Officer in the necessary record keeping to monitor the keeping of quarantined animals. 5 Kenneling. Live animals are kenneled in temporary holding if under a behavioral or legal restriction, medical isolation if under treatment, and in separate areas for puppies, cats, adult dogs, livestock, birds, reptiles or fish. All animals are fed species specific Anim.' Control Services - Exhibit A 5/15/02 - Page 2 diets of the most premium food/supplements available. Animals are confined in heated/cooled units. 6. Redemption. "Owned" animals are returned after reasonable proof is secured. 7. Adoptions. a. Temperament testing - Animals are behaviorally tested via breed/species standards set by the American Humane Association, American Kennel Club and others. No dangerous, severely ill, severely crippled or advanced age animals are put up for adoption. b. Spay/Neuter - All dogs and cats are altered surgically prior to adoption. c. Counseling - Adoptors are screened for their ability to care for animals for the long term. Adoptor and breed/species are matched for compatibility. d. Outreach - Some animals are readied for adoption and taken to various stores, malls and other locations for approved on-tha-spot placement. 8. Licensing. The Society shall act as an agent of the City Treasurer for the purpose of issuing licenses for pets and collecting the fees therefore, as required by City ordinance. License fee revenue will be forwarded from the Society to the City on a monthly basis. The Society will administer license program including renewals and maintain animal license database for the City. City cashiers will issue animal licenses for walk-in customers. Cashiers will input license data directly in the Society database and issue tags for walk-ins. a. Pets - All dogs and cats are licensed through an annual, staggered licensing system. The City will have unique license tags purchased by the Society. b. Facilities - Kitsap Animal Control inspects and licenses grooming parlors, pet stores, animal welfare (rescue) facilities, breeders and others per ordinance. All licensing revenues, minus service charges, go to the jurisdiction of record. 9. Euthanlzatlon. The Humane Society will euthanize an owned animal that is ill, elderly, disabled or dangerous at the request of the public. Animal Control Officers may euthanize in the field for humane reasons under the authority of State law (ReW 16.52). Animals are euthanized by lethal injection and disposed of. All charges for these services are passed on to the owner at cost. 10. Humane Education. Provided by the Kitsap Humane Society through dedicated staff via in-house classes in responsible pet ownership, obedience training and in the schools via staff visits or teacher led curriculum developed for children. A speaker's bureau provides lectures and seminars for community groups. Literature is available for brochure racks, the media and general consumption by the public. 11.Administration. a. Ordinances - The Society shall faithfully enforce all ordinances of the City and/or statutes of the State of Washington now in effect relative to the care, treatment, control, impounding and licensing of animals. Animal Control SelVices - Exhibit A 5/15/02 - Page 3 b. Contracts - Managed and monitored by a designated contracts officer, attorney and fiscal staff. c. Personnel - Personnel policies, benefits administration, Union negotiations/contracts and hiring are handled by designated staff. Training is a major focus of service with the Kitsap Humane Society. d. Supplies - All purchasing, inventory and stocking are centralized for efficiency. Bulk ordering is utilized whenever possible to maintain cost effectiveness. e. Infrastructure - Facility, vehicle and equipment maintenance are staff assigned. Animal impound, surgical, kenneling, quarantine, disposal and livestock care facilities meet or exceed American Humane Association standards. f. Accounting - Computerized accounting systems are in place and are compatible with other networks and systems. Data and vital records are digitized and disasterltheft protected. A dedicated Business Manager and Assistant are on staff. Specialized accounting services are provided through a Silverdale CPA firm. The credit and financial health of the Kitsap Humane Society are top rated. g. Audit - An annual independent audit is performed by a CPA firm other than our accounting firm. Internal controls and self-audit checks and balances follow GAAP (Generally Accepted Accounting Principles) in the industry. All contracts are subject to contracting jurisdiction audit. h. Management - The Kitsap Humane Society is governed by a Board of Directors who select and hire an Executive Director. That individual supervises five.(5) divisions; Development, Business, Animal Control, Animal Care and Customer Service. Kitsap Animal Control is supervised by a professional, commissioned Washington Humane Officer of over nineteen (19) years experience. Anim81 Control Services. Exhibit A 5/15102 - Page 4 EXHIBIT B Compensation By Service 1. 24/7 services. 2. Impoundment/Rescue a. Dispatch b. Complaints c. Investigations d. Citations e. Courts 3. Intake. (Vaccinations) 4. Kenneling. (Estimated 2,136 Cats/Dogs) 5. Redemption. 6. Adoptions. a. Temperament testing b. Spay/Neuter c. Counseling d. Outreach 7. Licensing. a. Pets. (Estimated 2,500 animals) b. Facilities 8. Euthanizatlon. (Estimate: 1,000) 9. Humane Education. 10. Administration. a. Contracts b. Personnel (2 ACOs + Benefits) c. Supplies (Fuel, 2 vehicles) d. Infrastructure (2 vehicles) e. Accounting f. Audit g. Insurance (General Liability) h. Management Animal Control Services - Exhibit B 5/15/02 Included Included Included Included Included Included $ 6,408.00 $ 64,000.00 No Charge No Charge No Charge No Charge No Charge $ 5,000.00 Unknown $ 2,400.00 No Charge No charge $ 74,614.00 $ 4,000.00 $ 12,000.00 No Charge No Charge $ 2,300.00 $ 10.912.00 TOTAL (First Year): $ 181,634.00 Jko8-0(~ I move to authorize the City Attorney to pursue a lawsuit against Burley Construction, Inc. relating to the Makayla Heights Development. 5I DATE SUBMITTED: October 8, 2007 BILL # 03 - 0 Ii ftJA AGENDA BILL CITY OF BREMERTON CITY COUNCIL ........................................................................................ SUBJECT: Ordinance N0503 '{.epealing and replacing Chapter 9.92 of the Bremerton Municipal Code entitled Chronic Nuisance Properties Committee Meeting Date: January 9, 2008 COUNCIL MEETING Date: January 16, 2008 Department: Police Presenter: Chief Rogers Phone: 473-5224 SUMMARY: The proposed ordinance repeals Chapter 9.92 of the Bremerton Municipal Code entitled "Criminal Activity Nuisance" and enacts a new Chapter 9.92, entitled "Chronic Nuisance Properties". The new ordinance provides a new process for enforcement and abatement of certain nuisance activities that repeatedly occur or exist at chronic nuisance properties. A TT ACHMENTS: Proposed Chronic Nuisance Properties Ordinance FISCAL IMP ACTS (Include Budgeted Amount): There will be no budgetary impact. APPROVALS: DEPARTMENT DIRECTOR: CITY ATTORNEY: FINANCE DIRECTOR: MA YOR: COMMITTEE CHAIR COUNCIL PRESIDENT: CONSENT AGENDA D GENERAL BUSINESS Ji?! PUBLIC HEARING D RECOMMENDED MOTION: Move to pass Ordinance No.Jo31repealing and replacing Bremerton Municipal Code Chapter 9.92 relating to chronic nuisance properties. COUNCIL ACTION: D Approve D Deny D Table o Continue D No Action ORDINANCE NO. 5039 AN ORDINANCE of the City Council of the City of Bremerton, Washington, repealing Chapter 9.92 of the Bremerton Municipal Code entitled "Criminal Activity Nuisance" and enacting a new Chapter 9.92 entitled "Chronic Nuisance Properties" providing a new process for enforcement and abatement of certain nuisance activities that repeatedly occur or exist at chronic nuisance properties. WHEREAS, the current provisions of Chapter 9.92 of the Bremerton Municipal Code relating to Criminal Activity Nuisance do not provide an adequate tool for abating nuisance properties; and WHEREAS, the City Council desires to repeal Chapter 9.92 entitled "Criminal Activity Nuisance" and enact a new Chapter 9.92 entitled "Chronic Nuisance Properties" to provide a new process for enforcement and abatement of nuisance activities that repeatedly occur or exist at chronic nuisance properties; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF BREMERTON, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 9.92 of the Bremerton Municipal Code entitled" Criminal Activity Nuisance" is hereby repealed in its entirety and replaced with a new Chapter 9.92 entitled" Chronic Nuisance Properties" to read as follows: Chapter 9.92 CHRONIC NUISANCE PROPERTIES 9.92.010 PURPOSE. (a) Chronic nuisance properties present grave health, safety and welfare concerns, where the persons responsible for such properties have failed to take corrective action to abate the nuisance condition. Chronic nuisance properties have a tremendous negative impact upon the quality of life, safety and health of the neighborhoods where they are located. This chapter is enacted to remedy nuisance activities that are particularly disruptive to quality of life and repeatedly occur or exist at properties by providing a process for abatement. This remedy is not an exclusive remedy available under any state or local laws and may be used in conjunction with such other laws. (b) Also, chronic nuisance properties are a financial burden to the city by the repeated calls for service to the properties because of the nuisance activities that repeatedly occur or exist on such property. This chapter is a means to ameliorate those conditions and hold accountable those persons responsible for such property. I Chronic Nuisance Properties 9.92.020 DEFINITIONS. For purposes of this chapter, the following words or phrases shall have the meaning prescribed below: (a) "Abate" means to repair, replace, remove, destroy, or otherwise remedy a condition which constitutes a violation of this chapter by such means and in such a manner and to such an extent as the applicable city department director or designee(s) determines is necessary in the interest of the general health, safety and welfare of the community; (b) "Control" means the ability to regulate, restrain, dominate, counteract or govern property, or conduct that occurs on a property; (c) "Chronic nuisance property" means property on which any combination of three or more nuisance activities occur or exist during any sixty-day period; (d) "Drug-related activity" means any unlawful activity at a property which consists of the manufacture, delivery, sale, storage, possession, or giving away of any controlled substance as defmed in chapter 69.50 RCW, legend drug as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW; (e) "Nuisance activity" means and includes: (1) Any nuisance as defmed by state law or local ordinance occurring on, around or near a property, including but not limited to, violations of the following laws and regulations: (a) Unauthorized and Junk Vehicles, BMC 9.08; (b) Fire Code, BMC Title 18, (c) Health and Sanitation, BMC Title 6; (2) Any criminal conduct as defined by state law or local ordinance occurring on, around or near a property, including, but not limited to, the following activities or behaviors: (a) Stalking, BMC 9A.32.IlO; (b) Harassment, BMC 9A.32.050; (c) Failure to Disperse, BMC 9A.44.030; (d) Disorderly Conduct, BMC 9A.44.020; (e) Assault, BMC 9A.32.0IO; (f) Any Domestic Violence Crimes, BMC 9A.32.070; (g) Reckless Endangerment, BMC 9A.32.020; (h) Prostitution, BMC 9.24.020; (i) Patronizing a Prostitute, BMC 9.24.040 G) Public Disturbance Noises, BMC 6.32.120(a); (k) Lewd Conduct, BMC 9A.44.070; (1) Any Firearms/Dangerous Weapons violations, BMC 9A.24.01O through BMC 9A.24.220 (m) Drug related loitering, BMC 9.89.101; (n) Any Dangerous Animal violations, BMC 7.12.040 (0) Any Drug related activity. (3) For purposes of this chapter, "Nuisance Activity" shall not include conduct where the person responsible is the victim of a crime and had no control over the criminal act. 2 Chronic Nuisance Properties (t) "Person responsible for property" or "Person responsible" means, unless otherwise defined, any person who has titled ownership of the property or structure which is subject to this chapter, an occupant in control of the property or structure which is subject to this chapter, a developer, builder, or business operator or owner who is developing, building, or operating a business on the property or in a structure which is subject to this chapter and/or any person who has control over the property and allows a violation of this chapter to continue. (g) "Person" means natural person, joint venture, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, officer or employee of any of them; (h) "Premises and property" may be used by this chapter interchangeably and means any public or private building, lot, parcel, dwelling, rental unit, real estate or land or portion thereof including property used as residential or commercial property; (i) "Rental unit" means any structure or that part of a structure, including but not limited to single family home, room or apartment, which is rented to another and used as a home, residence, or sleeping place by one or more persons; 9.92.030 Violation. (a) Any property within the City of Bremerton which is a chronic nuisance property is in violation of this Chapter and subject to its remedies; and (b) Any person responsible for property who permits property to be a chronic nuisance property shall be in violation of this chapter and subject to its remedies. 9.92.040 Procedure. (a) When the Chief of Police, or hislher designee(s), receives documentation confirming the occurrence of three or more nuisance activities within a sixty day period on any property, the Chief of Police, or his/her designee(s), may review such documentation to determine whether it describes the nuisance activities enumerated in 9.92.020. Upon such a finding, the Chief of Police, or his/her designee(s), shall warn the person responsible for such property, in writing, that the property is in danger of being declared a chronic nuisance property. (b) The warning shall contain: (1) the street address or a legal description sufficient for identification of the property; (2) a concise description of the nuisance activities that exist, or that have occurred on the property; (3) a demand that the person responsible for such property respond to the Chief of Police or his/her designee(s) within ten days of service of the notice to discuss the nuisance activities and create a plan to abate the chronic nuisance; (4) offer the person responsible an opportunity to abate the nuisance activities giving rise to the violation; and (5) a statement describing that iflegal action is sought, the property could be subject to closure and civil penalties and/or costs assessed up to one hundred dollars per day if the property is declared a chronic nuisance property. (c) The Chief of Police or his/her designee(s) shall serve or cause to be served such warning upon the person responsible in accordance with the procedures set forth in BMC 1.04.040(e) and 1.04.040(t). 3 Chronic Nuisance Properties (d) If the person responsible fails to respond to the warning within the time prescribed, the Chief of Police, or his/her designee(s) shall issue a notice declaring the property to be a chronic nuisance property and post such notice at the property and issue the person responsible a civil infraction, punishable by a maximum penalty of One Thousand Dollars ($1,000.00). If the person responsible fails to respond to the issued infraction and/or continues to violate the provisions of this chapter, the matter shall be referred to the Office of the City Attorney for further action. (e) If the person responsible responds as required by the notice and agrees to abate the nuisance activity, the Chief of Police, or his/her designee(s), and the person responsible, may work out an agreed upon course of action which would abate the nuisance activity. If an agreed course of action does not result in the abatement of the nuisance activities or if no agreement concerning abatement is reached, the matter shall be forwarded to the Office of the City Attorney for enforcement action. Provided, that in the event the Chief of Police or his/her designee(s) or the City Attorney determines that the person responsible has taken reasonable steps to abate the nuisance activity, the City Attorney shall not commence an enforcement action under this Chapter, notwithstanding the continuance of the nuisance activity. (f) It is a defense to an action for chronic nuisance property that the person responsible, at all material times, could not, in the exercise of reasonable care or diligence, determine that the property had become a chronic nuisance property, or could not, in spite of the exercise of reasonable care and diligence, control the conduct leading to the determination that the property is chronic nuisance property. 9.92.050 Commencement of Action-Enforcement. (a) Once the matter is referred to the City Attorney, the City Attorney shall immediately review and make a determination to initiate legal action authorized under this chapter or state statute, or may seek alternative forms of abatement of the nuisance activity. The City Attorney may initiate legal action on the chronic nuisance property and seek civil penalties and costs in superior court for the abatement of the nuisance. (b) In determining whether a property shall be deemed a chronic nuisance property and subject to the court's jurisdiction, the City shall have the initial burden of proof to show by a preponderance of the evidence that the property is a chronic nuisance property. The City may submit official police reports and other affidavits outlining the information that led to arrest(s), and other chronic nuisance activity occurring or existing at the property. The failure to prosecute an individual, or the fact no one has been convicted of a crime is not a defense to a chronic nuisance action. (c) Once a superior court determines the property to be a chronic nuisance under this Chapter the court may impose a civil penalty against any or all of the persons responsible for the property, and may order any other relief deemed appropriate. A civil penalty may be assessed for up to one hundred dollars per day for each day the nuisance activity continues to occur following the date of the original warning by the Chief of Police, or his/her designee(s), as described in BMC 9.92.040. In assessing the civil penalty, the court may consider the following factors, citing to those found applicable: (I) the actions taken by the person responsible to mitigate or correct the nuisance activity; (2) the repeated or continuous nature of the nuisance activity; 4 Chronic Nuisance Properties and (3) the statements of the neighbors or those affected by the nuisance activity; (4) any other factor deemed relevant by the court. (d) The superior court which determined the property to be a chronic nuisance property shall also assess costs against the person responsible in the amount it costs the City to abate, or attempt to abate, the nuisance activity. (e) If the superior court determines the property to be a chronic nuisance property, the superior court shall order the property closed and secured against all unauthorized access, use and occupancy for a period up to one year, and may impose a civil penalty and costs. (f) Once a determination has been made by the superior court that the chronic nuisance property shall be subject to closure the court may authorize the City to physically secure the premises and initiate such closure. Costs for such closure shall be submitted to the Court for review. Any civil penalty and/or costs awarded to the City may be filed with the city treasurer who shall cause the same to be filed as a lien on the property with the County Treasurer. The City shall file a formal lis pendens notice when an action for abatement is filed in the superior court. (g) The superior court shall retain jurisdiction during any period of closure or abatement of the property. (h) Bremerton Municipal Court is to have jurisdiction of all civil infractions issued pursuant to this chapter. 9.92.060 Summary Closure. Nothing in this chapter prohibits the City from taking any emergency action for the summary closure of such property when it is necessary to avoid an immediate threat to public welfare and safety. The City may take summary action to close the property without complying with the notification provisions of Section 9.92.040, but shall provide such notice as is reasonable under the circumstances. 9.92.070 Severability. If any portion of this ordinance, or its application to any person or circumstances, is held invalid, the validity of the ordinance as a whole, or any other portion thereof, or the application of the provision to other persons or circumstances is not affected. SECTION 2. Severability. If anyone or more sections, subsections, or sentences of this Ordinance are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this Ordinance and the same shall remain in full force and effect. SECTION 3. Effective Date. This ordinance shall take effect and be in force ten (10) days from and after its passage, approval and publication as provided by law. PASSED by the City Council the / ~ day of (,.~ /yJ./.1 A./Ltl_~ , 2008 11 WILL MAUPIN, Council President 5 Chronic Nuisance Properties Approved this day of ,2008 CARY BOZEMAN, Mayor ATTEST: APPROVED AS TO FORM: CAROL ETGEN, City Clerk ROGER A. LUBOVICH, City Attorney PUBLISHED the EFFECTIVE the ORDINANCE NO. day of day of , 2008 , 2008 R:\Legal\Legal\Ordinances\Police\Chronic N uisance-ProposedFinal(Final).doc 6 Chronic Nuisance Properties DATE: January 9, 2008 FROM: Bert Gegner 3040 Pawnee Drive Bremerton, WA 98310 360.373.3611/340.3827 (Cell) TO: SUBJ: Bremerton City Council Members BMC Chapter 9.92 (Chronic Nuisance Property Ordinance) ISSUES: 1. The Ordinance does not hold an individual who is violating the Chronic Nuisance Activity Ordinance accountable. It requires the property owner to be fully responsible for the action of others on or near his property. This is an unreasonable expectation. 2. The property owner is not notified after the first and second violation. If adequate notification requirements were included in the text of the Ordinance, it would allow property owners to take necessary action to abate the violation (Le. Prepare and issue 20 day notices to resolve the issue, evict a tenant, etc.). While discussions exists of the "intent" to notify property owner through an e-mail notifications system, these notifications are not adequate to address owners on vacation or those who do not share the computer technology to provide property information in the format (Excel) required by the Police Department. Furthermore, each violation would need to clearly identify which definitive Chronic Nuisance(s) have been violated so that adequate legal action can be initiated. 3. The Ordinance violations can be subjectively interpreted and can be initiated easily by any unhappy neighbor. There are no provisions to address retaliatory or false reports made. While discussion exists how it is intended to work, the process of determining the adequacy of a violation should be codified. I 4. The Ordinancetargets the poor, mentally disadvantaged, and those folks recovering from or having served in institutions. It obviously and blatantly targets those acting different than other "normal" folks living in the community. It appears that there is a clear intent to purge certain targeted folks from urban life in the city. 5. There have been numerous attempts to address the above issues at different levels with all relevant parties. I have been at two of three of these events with written and verbal input. There has been no apparent intent to address any of the above proposals adequately. Your consideration to assure that this ordinance is enacted with adequate and fair controls would be appreciated. Thank You! Bert Gegner Chronic Nuisance Property Ordinance Page 1 of 1 Lori Smith Lori Smith on behalf of City Council Monday, January 14, 20083:18 PM Adam Brockus; Brad Gehring; Carol Arends; Dianne Robinson; Mike Shepherd; Nick Wofford; Roy Runyon; Will Maupin Subject: FW: Citizen Letter - Chronic Nuisance Property Ordinance Attachments: City of Bremerton Letter.pdf; City of Seattle v McCoy (1 of 2).pdf; City of Seattle v McCoy (2 of 2).pdf; Synopsis of City of Seattle v McCoy.pdf From: Sent: To: FYI.. . From: Nancy Masterson [mailto:NMasterson@cablelang.com] Sent: Monday, January 14, 2008 3:04 PM To: The Mayor; Legal; City Council; Craig Rogers; Ken Bagwell; Andrew Oakley Cc: johnh@ccsww.org; flo@ccsww.org; billh@ccsww.org; denisegs@ccsww.org; patm@ccsww.org; dennyh@ccsww.org; johnhe@ccsww.org; kwiest@bremertonhousing.org; Colleen Kinerk; Steve Kerr; John Bauer Subject: Chronic Nuisance Property Ordinance Ladies and Gentlemen: Attached please find a letter and attachments from John Bauer on behalf of Catholic Community Services of Western Washington and the Archdiocesan Housing Authority. Nancy Masterson Legal Assistant to John G. Bauer Cable, Langenbach, Kinerk &: Bauer, LLP 1000 Second Avenue, Suite 3500 Seattle, Washington 98104 206.292.8800 CONFIDENTIALlTY NOTICE: This e,mail message, including any attachments, is for the sole use of the intended recipient (s) and may contain confidential, proprietary, and/or privileged information protected by law. If you are not the intended recipient, you may not use, copy, or distribute this c,mail message or its attachments. If you believe you have received this e' mail message in error, please contact the sender by reply e,mail and destroy all copies of the original message. 1/14/2008 Summary for City of Seattle v. McCoy, 101 Wn.App. 815 (200()) The City of Seattle sought to have Oscar's restaurant/lounge declared a drug nuisance under RCW 7.43 and to have the establishment closed to further operation for a period of one year. The restaurantllounge owners challenged the constitutionality of the statute under the fifth and fourteenth Amendments to the U.S. Constitution as a taking without just compensation. Although the Court of Appeals determined that the statute was not an unconstitutional "facial" taking (i.e. the mere enactment of the statute did not deprive the property owners of a fundamcntal propeliy right), the Court held that the application of the statute on the facts prcscnted constituted a taking of property without compensation and without due process of law. Facts and Trial Court Holding: The McCoys owned and operated Oscar's restaurant/lounge in Seattle's Central District. For a number of years, the McCoys worked closely with Seattle Police to reduce violence and drug activity in and around the club. At SPD's behest, the McCoys implemented numerous measures to reduce such activity. However, the drug activity continued and after several years the SPD went from helping the club to targeting the club for closure. SPD opened a drug abatement file and discontinued their practice of providing information to the owners about known drug dealers. Moreover, SPD conducted a number of undercover drug buys within the club -not to prosecute the offenders but rather to make a case against the club. Although the owners continued to do what they could to stop the activity whcn they were aware of it, they were powerless to completely stop it without police assistance, especially when undercover SPD officers were among the participants. Although numerous undercover drug deals were staged inside the club, neither the owners nor their employees were ever linked to any of them. Nevertheless, the City filed a complaint against the owners in Superior Court, alleging that the club was a drug nuisance and that the owners "are and have been using, maintaining or permitting Oscar's. .. to be used for the purpose of unlawfully manufacturing, delivering, sclling, storing, or giving away controlled substances." The trial court noted that the owners had made reasonable efforts to address the drug activity problem, that the owners had not in any sense 'permitted' the existence of the nuisance in the sense of having allowed it, furthered it, or condoned it, and that "the owners were essentially powerless to stop the inevitable." It nevertheless found that because the owners were unable to abate the drug nuisance, the property would be ordered closed for one year. Court of Appeals' Reasoning: The McCoys appealed by claiming that RCW 7.43 constituted an impermissible governmental taking of property both in its enactment and in its enforcement. The Court noted that the mere enactment ofRCW 7.43 could not constitute a taking because it did not declare 'offlimits' all economically productive or beneficial uses. In other words, the 'bundle of rights' the owners acquired when they obtained their interest in the property did not include a right to house unlawful drug activity. However, because the abatement order prevented the owners from putting the property to any economically viable use, the Court found that the statute, as applied to these facts, did constitute an unconstitutional taking. The City argued that they had satisfied a common law nuisance exception to takings based on a showing that illegal drug transactions continued to occur even after the police provided notice to the owners of illegal drug activity. ITowever, the Court of Appeals found that "the common law nuisance exception turns on whether the court finds, based on the evidence, that the owner has takcn reasonable steps to abate the nuisance activity based upon the actual or constructive knowledge of the owner about the existence of the activity and/or the identity of the actor". 101 Wn. App. at 827. The Court found that the owners consistently sought police assistance, even after SPD withdrew their support, and took numerous other steps to curb drug activity. The record did not support a finding that the owners had turned a blind eye to the illegal activity, and the Court declined to hold the McCoys strictly liable for all illegal activity. In finding that the owners made reasonable efforts to eliminate the illegal activity, the Court of Appeals recognized that even the police could not guarantee what the owners were being asked to guarantee. In other words, the statutory language imposed an impossible burden on property owners. Another important factor in the Court's reasoning was the absence of any commingling of the criminal activity with the business activity. Unlike a brothel, this McCoys' activity running a restaurant did not involve a situation in which the business owners, or their employees, were themselves involved or complicit in the illegal activity. The Comt recognized that under the Restatement (Second) of Torts ~ 838, "a possessor of land upon which a third person carries on an activity that causes a nuisance is subject to liability for the nuisance if it is otherwise actionable and, (a) the possessor knows or has reason to know that the activity is being carried on and that it is causing or will involve an unreasonable risk of causing a nuisance, and (b) he consents to the activity for fails to exercise reasonable care to prevent the nuisance." Where the possessor of the land does not know of the nuisance activity or takes reasonable care to prevent it, nuisance liability cannot be imposed. Because the McCoys did not have reason to know about specific illegal acts as they were happening, did not consent to the illegal activity, and made reasonable effOlts to address the problem, the club was not an abatable nuisance under the Restatement test. The Court of Appeals reversed the trial court and held that the closure of the McCoys' property was unconstitutional under the circumstances. ~: r ri, f ) I 844 CITY OF SEATTLE v. MCCOY July 2000 101 Wn. App. 815, 4 P.3d 159 not testify and who were not made available for deposition. The McCoys have not preserved these issues by properly objecting to the testimony at trial. State v. Brush, 32 Wn. App. 445, 648 P.2d 897 (1982). VII. DISPARATE IMPACTS ON AFRICAN-AMERICANS [16] The court was invited by amicus Pacific Northwest Chapter of the National Black Chamber of Commerce to consider disparate irppacts of the enforcement of chapter 7.43 RCW by the City of Seattle on African-Americans. The record before the court is that of application to Oscar's only. The court has no record before it on which to conduct such an analysis. See also Noble Manor CO. D. Pierce County, 133 Wn.2d 269, 272 n.1, 943 P.2d 1378 (1997) (explaining that courts do not ordinarily review issues raised solely by amicus curiae). VIII. ATTORNEY FEES [17] Amicus for Northwest Legal Foundation urges the awarding of McCoys' attorney fees and costs. The McCoys have not cited the takings fee statute or otherwise re- quested attorney fees as required under RAP 18.1. No attorney fees are awarded. CONCLUSION The drug abatement statute, chapter 7.43 RCW, is an unconstitutional taking of property without compensation as applied under the Fifth Amendment in this case. It is also a violation of due process as guaranteed under the Fourteenth Amendment to the United States Constitution. The order of the trial court is vacated. AGIO, C.J., and ELLINGTON, J., concur. Aug. 2QOO MENEELY v. 8.R. SMITH, INC. 845 101 Wn. App. 845, 5 P.3d 49 [No. 18086-1-Ill. Division Three. August 3, 2000.J SlIAWN MENEELY, ET AL., Respondents, v. S.R. SMITH, INC., ET AL:; Defendants, NATIONAL SPA & POOL INSTITUTE, Appellant. ClJ St.atutes - Construction - Legislative Intent _ Considered asa Whole. A court's duty in interpreting a statutory provision is to ascertain and give effect to the intent and purpose of the legislation as expressed 'in the statute as a whole. C21 Property - Limitation of Actions - Improvements to Realty ~ Statutory Provisions - Statute of Repose _ Purposes. The purpose ofRCW 4.16.300 and .310, which prescribe a six-year period of repose for actions involving construction-related services for improvements to real property, is to protect architects, contractors, engirieers, surveyors and others from extended potential tort and contract liability. C31 Products Liability - Limitation of Actions _ Improvements to Realty - Statutory Provisions _ Statute of Repose _ Applicability - Building Improvements. RCW 4.16.300 and .310, which prescribe a six-year period of repose for actions involving construction-related services for improvements to real property, apply only to defendants whose activities relate to building improvements. [4) Products Liability - Limitation of Actions _ Improvements to Realty - Statutory Provisions _ Statute of Repose _ Applicability - Nonsite.Specific Safety Standards. The six- year period of repose prescribed by RCW 4.16.300 and .310 for actions involving construction-related services for improvements to real property does not apply to an association or organization that drafts and publishes safety standards for the installation ofa particular kind of improvement to real property where the standards apply to any such installation and are not site specific. C51 Negligence - Duty - Question of Law or Fact _ In General. The existence of a duty of care is a question of law. C61 Negligence - Rendering Aid or Assistance _ Duty _ Reasonable Care. An actor who gratuitously assumes a duty to act on behalf of another or to warn another of a particular danger and fails to exercise reasonable care in performing the duty may be liable in negligence therefor. C71 Negligence - Rendering Aid or Assistance _ Promulgation of Safety Standards - Duty - Breach - Ultimate Consumer. An association or organization that prepares and publishes industry-wide safety standards for the installation or use of a particular product voluntarily assumes a duty of reasonable care. A failure by the association or organization to revise the standards after learning from r~putable studies that the standarn.Q ll"<> I r i r (, ~, *, f:! 1,. t:' m " [~ -,~ Ii; Ii !;: ,Ii ::l' ~j "i III. CROSS-APPEAL OF EXCLUSION OF DECLARATIONS 815 814 FISCHER-MCREYNOLDS v. QUASIM July 2000 101 Wn. App. 801, 6 P.3d 30 order with operative effect in this context. Therefore, we must conclude that Executive Order 96-05 is either 'a general policy statement or a directive. In either case, it lacks the force and effect of law and Fischer-McReynolds cannot rely upon it, to obtain monetary relief. [16-18] Finally, we decline to consider Fischer- McReynolds' additional claims, which she failed to assert in her amended complaint. These include hostile working environment, gender related harassment, and retaliation. The purpose of a complaint is to apprise the defendant of the nature of the plaintiff's claims and the legal grounds upon which the claims rest. Christensen v. Swedish Hosp., 59 Wn.2d 545, 548, 368 P.2d 897 (1962). Generally, failure to raise an issue before the trial court precludes a party from raising it on appeal. Seattle-First Nat'l Bank v. Shore- line Concrete Co., 91 Wn.2d 230, 240, 588 P2d 1308 (1978); Browne u. Cassidy, 46 Wn. App. 267, 270, 728 P.2d 1388 (1986) (" '[a] lawsuit cannot be tried on one theory and appealed on others''') (quoting Teratron Gen. v. Institu- tional Investors Trust, 18 Wn. App. 481, 489, 569 P.2d 1198 (1977)), [19] Fischer-McReynolds' passing reference to other pos- sible theories to support her claims does not indicate a need, :;: to make an exception to the general rule. Further, she fails 1 to support these claims with relevant authority. We neeC(.: not consider arguments for which a party has cited n6' ~' authority. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d' 193 (1990). . CITY OF SEATI'LE v. MCCOY 10i Wn. App. 815, 4 P.3d 159 oj [No. 42873-0-1. Division One. July 17, 2000.] THE CITY OF SEATI'LE, ET AL., Respondents, v. OSCAR McCoy, ET AL., Appe~lants. In its cross-appeal, DSHS argues that the trial court' erred in granting Fischer-McReynolds' motion to strike the;i Ronco and Lashway declarations. Because we affirm theJ: summary judgment ruling, we need not reach this issue.::l Accordingly, we affirm. [1] Statutes - Validity - Presumption - Burden of Proof - . Degree of Proof. A statute is presumed to be constitutional and will not be invalidated unless it is proved to be unconstitutional beyond a reasonable doubt. The burden of proving that a statute is unconstitutional is on the party making the challenge. [2] Constitutional Law - Taking of Property - Regulatory Taking - By Operation of Statute - Facial Invalidity - Test. A landowner claiming that a statute is facially invalid under the Fifth Amendment takings clause must show that the mere enact- ment of the statute ipso facto constitutes a taking. '[3] Nuisance - Criminal Nuisance - Statutory Provisions - Constitutional Taking - Facial Validity. A statute by which private property may be declared a nuisance upon a judicial finding that persistent criminal activity is occurring thereon and that authorizes abatement of the nuisance and transfer of custody of the property to the court during the period of abatement does not constitute a facial taking of property in violation of the Fifth Amendment. Inasmuch as application of the statute is triggered by proof of criminal activity and criminal activity is not among the bundle of rights of property ownership, the statute, on its face, does not deny a property owner a fundamental attribute of property ownership. {4] Eminent Domain - Inverse Condemnation - Regulatory Taking - Initial Test -. Fundamental Attributes of Ownership - "Total Taking" - Effect. When it is claimed that application of a statute to a particular piece of property constitutes a taking of the property in violation of the Fifth Amendment, the claimant bears the initial burden of proving that the statute, as applied, destroys or derogates a fundamental attribute of property ownership, such as the right to possess the property, to exclude others from the property, to dispose of the property, or to make some economically viable use of the property. A physical invasion of the property by the government or the denial of all economically viable . uses of the property constitutes a total taking, which is categorically compensable under the Fifth Amendment, regardless of the public interest reasons supporting the government's acts, ifthe owner's use of the property does not constitute a common law nuisance that may properly be abated by the government. ., . .;}:'X~lEminent Domain - Inv~rse Condemnation - Regulat~ry k. Taking - Temporary Taking - Effect. A temporary total taking :,: . . of property by operation of a government regulation is subject to the ARMSTRONG, C.J., and HOUGHTON, J., concur. ( 816 817 CITY OF SEA'ITLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 ;[U] Constitutional Law - Due Process - Substantive Due Process - Violation - Test. The application of a statute to a parcel of property violates the property owner's right of substantive due process if (1) it is not aimed at achieving a legitimate public purpose, (2) it does not use means that are reasonably necessary to achieve the public purpose, or (3) it is unduly oppressive on the property owner. 'July 2000 CITY OF SEATI'LE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 same categorical treatment as a permanent taking if the regulation' denies aU use of the property to its owner. A temporary taking is; compensable under the Fifth Amendment until such time as' it; expires or is terminated.'~ :' .... [6] Nuisance - Criminal Nuisance - Business Premis~s ..:... ',; Cessation of Business Activities - "Total Taking". A 'wtat'!j taking occurs when a court enters a nuisance abatement order tha~,j places business property off limits and preempts any bUsine~$': activity thereon pursuant to a statute by which private prope~:: may be declared a nuisance upon a judicial finding that persist~~t;; criminal activity is. occurring on the property and authoriztqli abatement of the nUlsance. and transfer of custody of the property 1;9):' the court during the period of abatement. ',' [7] Nuisance - Criminal Nuisance - Business Premises;:' Activity Unknown to Business Owner. The common law nuisance does not allow the government to abate a lawful busin. activity as against an innocent owner for criminal activity on business premises by unidentified business patrons which, when , activities occurred, were unknown and may not have, be observable, or which the owner made reasonable efforts to stop u discovery. [8] Nuisance - Owner or Occupier of Land - Actions of . Party - Liability of Owner or Occupier - Test. An owner occupier of land upon which a third person carries on an acti constituting an actionable nuisance is not subject to liability for nuisance unless (1) the owner or occupier knows or has reaBO know that the activity is being carried on and that it is causin will involve an unreasonable risk of causing the nuisance and (~ owner or occupier consents to the activity or fails to ex~ reasonable care to prevent the nuisance. [9] Eminent Domain - Inverse Condemnation - Regulat Taking - Initial Test - Fundamental Attribute~, Ownership - "Total Taking" - Balancing Gove .' Interest - Necessity. When analyzing a total taking claim, a c does not consider public interest factors and does not balance such public interest factors against the economic impact to property owner. [10] Eminent Domain - Inverse Condemnation - Regulaf' Taking - Alternative Theories - Consideration of B' Although a court would not ordinarily consider a substantive;, process challenge to a government regulation after deciding tha~ regulation constitutes a taking in violation of the Fifth Amendrii a court may consider the due process challenge nonetheless if case is one of first impression and review would serve the inter of comprehensive, timely disposition of the issues raised in th~':~' [12] Constitutional Law - Due Process - Substantive Due Process - Violation - Oppression - Balancing Test. A determination of whether a statute is unduly oppressive on a property owner involves a weighing and balancing of public interest factors on one side and the owner's private interests on the other. Among the public interest factors that may be considered are (1) the seriousness ofthe public problem, (2) the extent to which the owner's land contributes to the problem, (3) the degree to which the statute solves the problem, and (4) the feasibility of less oppressive solutions. Among the private interests that may be considered are (1) the amount and percentage of value loss to the property owner, (2) the extent of the property's remaining uses, (3) past, present, and future uses, (4) the temporary or permanent nature of the statutory restriction, (5) the extent to which the property owner should have anticipated the statute, and (6) the feasibility of the property owner ~, being able to alter present or currently planned uses of the land. ': [18] Nuisance - Criminal Nuisance - Statutory Provisions - " ' Substantive Due Process - Test. A court's entry of a nuisance , abatement order placing business property off limits and pre- empting any business activity thereon under a statute by which private property may be declared a nuisance upon a judicial finding that persistent criminal activity is occurring on the property and authorizing abatement ofthe nuisance and transfer of custody of the property to the court during the period of abatement constitutes a violation of the property owner's right of substantive due process if the owner is an innocent party who did not know about and did not acquiesce in the criminal activity on the business premises. ;' [14] Appeal- Disposition of Cause - Basis for Decision - Issue , Decided on Other Grounds. Once an appellate court has decided an issue on one ground, it may decline to consider any other grounds for deciding the issue. ,(' [15] Evidence - Review - Preservation for Review - Objection - Necessity. In order to preserve an evidentiary issue for review, a party must make an objection at trial. [16] Appeal - Assignments of Error - Argument - Basis in Record - Necessity. An appellate court may decline to consider an issue that is not supported by an adequate basis in the record, 818 LEXIS Publishing™ Research References 2000 Wash. App. LEXIS 1205 CITY OF SEATTLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 819 CITY OF SEATTLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 July 2000 :- [17] Eminent Domain - Inverse Condemnation -Attorney Fee.'! - Pleading or Motion - Necessity. Attorney fees may not be' awarded in an inverse condemnation action absent a pleadiI)g Qr; motion requesting fees. . " .', Nature of Action: A city sought to have a restaurantiif . ",r lounge declared a' drug nuisance and to have the restau~.~ rantllounge closed to further operation under the terms of~;. . . .~ drug nuisance abatement statute.' \ Superior Court: The Superior Court for ~ng Count~~ No. 97-2-28243-8, R. Joseph Wesley, J., on May 11, 199$;': entered a judgment declaring the restaurantllounge to be a;' drug nuisance and ordering the nuisance abated and th~' restaurantllounge closed for one year.' Court of Appeals: Holding that the drug nuisanc~;\ abatement statute, as applied in the circumstances of thi${ case, constituted an invalid taking of property without jus~{ compensation and without due process of law, the co1i1ili;, reverses the judgment and vacates the order of abatemen~.i .' t, David R. Osgood, for appellants. ~':M Mark H. Sidran, City Attorney, and Shelley J. HickeY)~~ : ~1 Assistant, for respondents. (Iii David Zuckerman on behalf of American Civil Liberti~ Union of Washington, amicus curiae. Jeanie J. Mohler on behalf of Washington State Assqci.' ., t,~ tion of Municipal Attorneys, amICUS cunae. " ;.i Richard D. Shepard on behalf of Northwest Legal Fo. dation, amicus curiae. ' John W Cobb on behalf of Washington Associatio,n Prosecuting Attorneys, amicus curiae. John C. McCullough, Jr., on behalf of Rainier ChaD?-'. Commerce and Downtown Seattle Association, ami< riae. Artee F. Young on behalf of Pacific N orthwest Cha~,. the National Black Chamber of Commerce, amicusc' ,ApPELWICK, J. - Oscar and Barbara McCoy own Oscar's II, a restaurant and lounge in Seattle. The City of Seattle filed a complaint against the McCoys, alleging that the building constituted a drug nuisance under chapter 7.43 RCW, because of illegal drug activity on the premises. The trial court found that Oscar's "is a drug nuisance pursuant to Chapter 7.43 RCW and for one year shall be abated and closed to further operation of Oscar's by and through the [d]efendants' McCoy." The order triggered a statutory pro- vision placing the property in custody of the court. A stay ; was entered pending appeal. The McCoys challenge the constitutionality of chapter 7.43 RCW under the United States Constitution as a taking ; without compensation both facially and as applied, as a ,: violation of due process, and as void for vagueness. The " McCoys also challenge evidentiary rulings of the trial court. \, Amicus alleges application of the statute is unconstitu- ,.. tional on the basis of discriminatory application against , African -Americans. 1 , We hold that chapter 7.43 RCW as applied to the McCoys ;. violates the Fifth and Fourteenth Amendments to" the ; United States Constitution. The application of the statute \ on these facts constitutes a taking of property without ;coinpensation and without due process of law. State nui- t sance and property common law is not an exception to a ;taking under these facts. We do not reach the vagueness :issue, having found the statute unconstitutional on other 7igrounds. ',' 1 The following parties were granted permission to submit amicus briefs: ''Northwest Legal Foundation; Washington Association of Prosecuting Attorneys; :Rainier Chamber of Commerce and Downtown Seattle Association; Washington JState Association of Municipal Attorneys; American Civil Liberties Union of ,[Washington; and Pacific Northwest Chapter of the National Black Chamber of ...Co=erce. 820 CITY OF SEATI'LE v. MCCOY July 2000 if 101 Wn. App. 815, 4 P.3d 159 The McCoys have not preserved their objection to, the i evidentiary issues. The record is not adequate to allow', 0 consideration of the discrimination claims." Therefore, we vacate the order of abatement entered by"'~. the trial court. July 2000 CITY OF SEATI'LE v. MCCOY 821 101 Wn. App. 815, 4 P.3d 159 street. And Oscar McCoy routinely testified in court against people "trespassed" from his business, that is, people re- moved from the premises for violating a prior police notice n()t to come onto the property: For a five-year period beginning in 1994, Officers Derezes and Zerr assisted the McCoys with maintaining order at Oscar's, routinely identifying to Oscar McCoy persons they had arrested, or persons known to them as being suspected narcotics traffickers. Invariably, Oscar McCoy would ban these suspected traffickers from the establishment. 'In 1994, due to a manpower shortage, the Seattle Police Department (SPD) discontinued the operation of regular footbeat patrols in the area where Oscar's is located, and Officers Derezes and Zerrwere transferred out of the area. However, the SPD continued to regularly patrol the area around Oscar's by vehicle and uniformed patrol officers occasionally walked through Oscar's. Patrol officers contin- ued to make drug arrests inside Oscar's. Patrol and com- munity police team officers notified Oscar McCoy of these ,,' narcotics arrests and the narcotics trafficking occurring in ;~ a,nd around his business, and gave Oscar McCoy sugges- <; hons on how he could prevent drug trafficking at Oscar's. . The McCoys asked for an increased police presence in the ~ area and a better 911 response. The McCoys' requests were ; denied on the basis of insufficient police resources. ! And, in late 1994, the police department initiated a drug J abatement file on Oscar's. The police also discontinued l their practice of providing information to the McCoys about ~; known drug dealers. ': The SPD then formally notified Oscar McCoy in writing '; of the illegal drug sales occurring at Oscar's, told him of his i responsibility to operate his business in a manner which : did not allow dru~ t:r&fficking to occur on the premises, and ',' warned him of the potential closing of his business pursu- , ant to the Drug Nuisance statute, chapter 7.43 RC'\v, if drug . trafficki~g was not prevented. The SPD and Oscar McCoy : met to discuss these matters at which time Oscar McCoy : was presented with a Drug Elimination Plan (DEP), con- FACTS . :'t Oscar and Barbara McCoy are the owners and operatcire,: of Oscar's II, a restaurant and lounge in Seattle's CentrEil".~ District. They lease the property at that location frorir ,.~ Wilmer Morgan and Gwen Dixon.2 Oscar McCoy openeq ,hjii:. restaurant in 1976, and moved it to its present location ,jri.,: February 1986. From the beginning, the restaurant catered't to an older crowd, and operated for 13 years without any ~ particular problems. ' "L At some point in 1989, an establishment called th~',:, "Cotton Club" closed, and its patrons, a younger clientele; ; began frequenting Oscar's. With the younger crowd, t1i~:p McCoys began experiencing difficulties with fights arid'Y disturbances, some of which were gang-related.3 At flP~'1 proximately the same time, the McCoys were contactedby,"; two beat officers, assigned to patrol "hot spots" in' .tli~ f Central District, Sam Derezes and Eric Zerr. Both, offi.cer$~: worked with the McCoys to implement security measur~~{! inside of Oscar's" including hiring security, checking l#~:;: trons' identification at the door, arid maintaining a t;respa~~l list. According to Officer Derezes, Oscar McCoy followE:lq'~l of the suggestions made to him to help keep the crimil}' element out of the business. The McCoys allowed agent~:, the United State Drug Enforcement Agency to use to' establishment as a place to surveil narcotics activity oil~. 2 Although the McCoyslease the property that is the subject of this appeaI,'t parties do not dispute that they are considered "[olwners." Aa tenants, the MC(Jo possess a valuable interest in the real property. See Folsom v. Spokane ColS 106 Wn.2d 760, 762, 725 P.2d 987 (1986). :." 8 Issues of violence, liquor law violations, or gang activity are ~ot a oonsi" ation for purposes of the drug nuisance statute, chapter 7.43 RCW, Qlllyille drug activity is considered. c 822 CITY OF SEATTLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 /: sisting of 15 suggested actions the McCoys could take' to r deter drug trafficking at Oscar's. . .;; The suggestions contained in the DEP were: (1) a SPD'} record check of all employees; (2) no violation of state liquor-;\ codes; (3) locked bathrooms with one employee in control ofi~ the keys; ~ 4) employment of security personnel on weekends.; and evemngs and security checking of all customers felt;: weapons; (5) maintenance of an "86" list documentingf per.sons who h~ve ?een excluded from the business; (());~ mSlde and outSIde hghting sufficient to allow employees to'; observe customer activity; (7) installation of a video cam-, era; (8) posting of "no loitering" and "no drug activity" Sigllt!:H' on t~e .front door;. (9~ removal of inside pay phone an..~h 7estn.ctm~ use of l?Slde phones to employees only; .J,lO};l Id~n~lficatlOn checking of all.customers; (11) initiatin,g,'.a-j, cnmmal trespass agreement with the Community Poll ..~,\ Team (CPT) to allow the police to exclude unauthoriz' per~ons. when requested to do so by the McCoys; <;12" :nst:tut:on of an ~ntry fee and readmittance fee; (i~~J m~tltutlOn of a pohcy to contact a CPT officer, the Ailt{~~. Cnm~ Team officer or call 911 to report drug activity' ,i'.;' securmg of the back door to make it exit only (with al~e ~mergency exit bar); and (15) implementing a dress ~o" I.e., not allowing any gang attire. .:'" . The McCo?,s had been implementing some suggesti9:~: alrea~y .and Imple~ented many others. The parties dispV' the bmmg, duratIOn, or extent of the implementatio ....~ locked bathrooms, installation ofa video camera or d .. camera, removal of the phone, and securing of the '. door. The trial court's memorandum decision4 states the proposals that had "not been implemented [were] the I?os.t part too expensive or [ineffective]," Oscar's w~s', contmumg target for abatement by the SPD.F~" Over a period of 27 months, covering parts of 19 through 1997, confidential informants worked under:<" direction of the SPD and made eighteen narcotics ..'j. chases inside of Oscar's. The SPD used various confiden,, 4 The trial court's memorandum decision is referenced in Finding ofFactNoj~?' , July 2000 CITY OF SEATI'LE v. MCCOY 823 101 Wn. App. 815, 4 P.3d 159 . informants and purchased from different drug dealers, , except on one occasion where a dealer was paged for a second purchase. The dealer arrived at Oscar's by car in ~..' response to the page. These undercover narcotics purchases { did not result in arrests. Nor did the SPD inform the ; McCoys that the purchases were being made inside their ; business or that these suspected drug dealers were operat- ; ing out of Oscar's. The alleged drug dealers were never ? identified to the McCoys. Seattle Police Detective Diaz '. clearly testified that these investigations were conducted for the sole purpose of abating Oscar's. .,' No one linked Oscar or Barbara McCoy to drug sales in ~. the establishment, and the unrefuted testimony of their ~ employees and patrons indicated that none of them had :' ever witnessed. drug sales on the premises. On November 5, 1997, the City of Seattle filed a com- i plaint against the McCoys in King County Superior Court, s alleging that the McCoys "are and have been using, main- ! taining or permitting Oscar's. . . to be used for the purpose ,: of unlawfully manufacturing, delivering, selling, storing, or ": giving away controlled substances[.]" The City sought a ~. declaration that the property on which Oscar's is located is ~ a drug nuisance under chapter 7.43 RCW. Accordingly, it : asked the court to close Oscar's and to prohibit its "use for ,; any purpose" for one year. The trial court's memorandum decision stated that the : McCoys made "reasonable efforts to address the problem[,]" ~ and ''have not in any sense 'permitted' the existence of the : nuisance in the sense of having allowed it, furthered it, or ~ condoned it." The trial court further noted that when the ., police department's focus shifted from working with the ~. McCoys to gathering evidence against them, "the McCoys ,. were essentially powerless to stop the inevitable. The drug : problem continued, it probably intensified, and a nuisance ~ is the result." . Nonetheless, the trial court also found that the "McCoys ; have not been able to abate the drug nuisance at Oscar' Is] ; in the past, and have failed to . . . present evidence that 824 CITY OF SEATTLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 they will immediately abate the nuisance as required under' RCW 7.43.080(2)(c) to obviate an order of abatement." The, trial court then concluded that "the premises located at:j~ 2051 Madison St., Seattle, Washington is a drug nuisanc~}::; pursuant to Chapter 7.43 RCW and for one year shal1b'.~; abated and closed to further operation of Oscar's by anQ') through the [d]efendants McCoy." The court also prohibitelL' the McCoys from entering the property for any reason: "Th~,':\ [dJefendants McCoy shall completely vacate the propertf1: located at 2051 Madison Street, Seattle, Washington withiIj) twenty-four (24) hours after entry of this Order, and shaIi: not re-enter Oscar's for any reason for a period of on~ {: year[.J" :~} On appeal, the McCoys contend that chapter 7.43 RC%~t on its face and as applied, violates the United State$J Constitution.5 Pending appeal, this court stayed the tri~j:i '"1 <-,- court's abatement order. On February 25, 1999, the Ci~t' moved this court to permit the trial court to vacate its ordii' of abatement, contending that Oscar's is no longer a dn{ nuisance. The City did not seek dismissal of this caSE! on .t'<. mootness grounds. The court denied the City's motion afte~ hearing oral argument. i~' ANALYSIS I. THE DRUG NUISANCE STATUTE, RCW 7.43 Under the drug nuisance statute, RCW 7.43.010, eve" building that is used to manufacture, sell, or store illeg' drugs is a nuisance: (1) Every building or unit within a building used for " purpose of unlawfully manufacturing, delivering, selling,sto , 0....' ing, or giving away any controlled substance. . . and ev building or unit within a building wherein or upon whichs, acts take place, is a nuisance which shall be enjoined, abat' and prevented, whether it is a public or private nuisance. ;.' 5 The McCoys do not argue that an independent analysis under the Washin Constitution is proper as required by State v. Gunwall, 106 Wn.2d 54, 58, 720, 808, 76 A.L.R. 4th 517 (1986). ' , 825 CITY OF SEATTLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 \: -RCW 7.43.080 provides: (1) Except as provided in subsection (2) of this section, if the existence of the nuisance is established in the action, an order of abatement shall be entered as part of the final judgment in . the case. Plaintiffs costs in the action, including those of abatement, are a lien upon the building or unit within a . building. The lien is enforceable and collectible by execution issued by order of the court. (2) If the court finds and concludes that the owner of the building or unit within a building: (a) Had no knowledge of the existence .ofthe nuisance or has been making reasonable efforts to abate the nuisance, (b) has not been guilty of any contempt of court in the proceedings, and (c) will immediately abate any such nuisance that may exist at the building or unit within a building and prevent it from being a nuisance within a period of one year thereafter, the court shall, if satisfied of the owner's good faith, order the building or unit within a building to be delivered to the owner, and no order of abatement shall be entered. If an order of abatement has been entered and the owner subsequently meets the requirements of this subsection, the order of abatement shall be canceled. , Under RCW 7.43.090, the court may issue an order, upon a l showing that an unpreventable nuisance exits, that shall: (1) Direct the removal of all personal property subject to seizure and forfeiture pursuant to ReW 69.50.505 from the building or unit within a building, and direct their disposition pursuant to the forfeiture provisions of ReW 69.50.505; (2) Provide for the immediate closure of the building or unit within a building against its use for any purpose, and for keeping it closed for a period of one year unless released sooner as provided in this chapter; and (3) State that while the order of abatement remains in effect the building or unit within a building shall remain in the custody of the court. (II. THE "FACIAL" CHALLENGE: AN UNCONSTlTU- \<TIONAL TAKING " i{' [1, 2] The McCoys argue that the mere enactment of ~;chapter 7.43 RCW constitutes a taking in violation of the " fi! .t I l ,I I ~f\ i: ~ . ~: I' ,I, ~'f, I L J' , ~ i rt tl: !t ;{ It,~ 'j':; :f Ii i-i ,'I ';i] )j ill! ' l j 826 CITY OF SEATTLE v. MCCOY July 2000 101 Wn. App. 815, 4 P.3d 159 Fifth Amendment. The takings clause of the Fifth Amend- ment provides that private property shall not ''be taken for public use, without just compensation." U.S. CONST. amend. V. "A statute is presumed to be constitutional and the challenger bears the burden of establishing the unconstitu- tionality of the legislation beyond a reasonable doubt." Brower u. State, 137 Wn.2d 44,52,969 P.2d 42 (1998), cert. denied, 526 U.S. 1088 (1999). "Under a facial challenge to a land use regulation, the landowner must show that the mere enactment of the regulation constitutes a taking." Guimont u. Clarke, 121 Wn:2d 586, 605,854 P.2d 1 (1993) (citing Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 493,107 S. Ct. 1232,94 L. Ed. 2d 472 (1987)). The McCoys maintain that chapter 7.43 RCW, which allows their building to be declared a nuisance to be abated and to be put in the custody ofthe court, denies them a fundamen- tal attribute of property, and is a "per se constitutional taking requiring just compensation." Guimont, 121 Wn.2d at 603; accord Lucas u. South Carolina Coastal Council, 505 U.S. 1003, 1015-16, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992). In the Lucas, case, David H. Lucas purchased two resi~ dentiallots in South Carolina on which he intended to build single-family homes. Lucas, 505 U.S. at 1006-07. Two years later, the South Carolina Legislature enacted a statute that barred him from "erecting any permanent habitable struc- tures on his two parcels." Lucas, 505 U.S. at 1007. Lucas challenged this statute, contending it was a taking without ,', just compensation in violation of the Fifth AInendment. Lucas, 505 U.s. at 1009. The U.S. Supreme Court concluded that although property owners are not entitled to just compensation for "proscribed use interests [that] were not part of [the property owner's] title to begin with[,]" when "a: regulation that declares 'off-limits' all economically produc- tive or beneficial uses ofland goes beyond what the relevant background [nuisance and property] principles would dic- tate, compensation must be paid to sustain it." Lucas, 505 U.S. at 1027, 1030 (footnotes omitted). The loss of Lucas' property right was automatic and was independent of any subsequent triggering act. . July 2000 827 CITY OF SEATI'LE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 [8] The McCoys' claim in this case is based upon the plain language of chapter 7.43 RCW (the ''building . . . is " a... nuisance"), and the statute's mandate that the court take control of the property and exclude the owners. As the City contends, use of the property for unlawful drug activity constitutes the nuisance, not the property per se. However poorly the statute is worded, the fact is that abatement is triggered only by unlawful, criminal drug activity on or in the property. Therefore, the statute does not operate as a talPng by mere enactment, but upon only proof of subse- quent unlawful drug activity. Unlike the statute at issue in Lucas, which applied to property owners by virtue of the Legislature's enactment, chapter 7.43 RCW is triggered by unlawful drug activity. Because the ''bundle of rights" the McCoys acquired when they obtained their interest in the property did not include a right to house unlawful drug . activity, the McCoys are not entitled to compensation as a : result of the City's efforts to eliminate such activity. See ~ Lucas, 505 U.S. at 1027. As a result, the mere enactment of :;. chapter 7.43 RCW did not deny the McCoys a fundamental : attribute of property. Accordingly, the McCoys cannot and ;, have not established beyond a reasonable doubt that chap- ~:: ter 7.43 RCW, on its face, constitutes a taking without just t compensation in violation of the Fifth Amendment. .~ '} ~ m. THE "AS APPLIED" CHALLENGE: AN UNCONSTI- ;1TUTIONAL TAKING ~~ . , .- } ,A. The "Taking-s" Analysis i . . [4-6] The McCoys argue that chapter 7.43 RCW as (~applied to them is an unconstitutional taking, because it ; denies them all economically viable use of the property :; without compensation. The City argues there is no evidence ;: the McCoys have been denied all economic use of their i property. The City further argues that even if all economic : use of the property were denied, common law nuisance ~, principles exempt chapter 7.43 RCW from being an uncon- ~. stitutional taking. The parties agree that two cases are of :~ particular importance. The first is Lucas v. South Carolina ~. ;, Jiily 2000 829 828 CITY OF SEATTLE v. MCCOY 101 Wn. App, 815, 4 P.3d 159 Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed; ;:~ 2d 798 (1992), which recognizes an exception to fede:r&}," takings analysis grounded in state common law nuisanc~; principles. The second is Guimont v. Clarke, 121 Wn.2d 586jj. 854 P.2d 1 (1993), which outlines the framework for aria~:j. lyzing regulatory takings. r' Under these cases, the McCoys must first prove that ,thai' statute as applied destroys or derogates a fundament~~: attribute of property. A fundamental attribute of propel1~{ includes the right to. possess, to exclude others, and \tq,'~ dispose of .the property. Guimont, 121. Wn.2d at 602.. A#J; other attnbute appears to be the nght to make som~R economically viable use of the property. See Lucas, 505 U;St:i at 1019. Establishing a physical invasion of the propertyot~~ that the regulation denies all economically viable use wow' \ be a total taking, which is categorically compensable. " The McCoys argue that the plain language of thecourl.... order is such a total taking. The pertinent portions of RC, :' : 7.43.080(1) and RCW 7.43.090(2) provide: ' ..t~ (1) Except as provided in subsection (2) of this section, iffuJ} existence of the nuisance is established in the action, an ord "X" of abatement shall be entered as part of the final judgment:" the case. Plaintiff's costs in the action, including those,. abatement, are a lien upon the building or unit within:' building. The lien is enforceable and collectible by executi. issued by order of the court. RCW 7.43.080(1). I::L . ~i";1~ (2) Provide for the immediate closure of the building or uPi' '; within a building against its use for any purpose, and fop:', keeping it closed for a period of one year unless released sooner:,. as provided in this chapter[.] '. " RCW 7.43.090(2).., The order tracks these statutory provisions and provides':> I, The Court finds that the premises located at 2051. Madison St., Seattle, Washington is a drug nuisance p suant to Chapter 7.43 RCW and for one year shall' abated and closed to further operation of Oscar's by' . through the [d]efendants McCoy. 2. The [d]efendants McCoy shall completely vacate the prq: CITY OF SEATTLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 erty located at 2051 Madison Street, Seattle, Washington within twenty-four (24) holJ,rs after entry of this Order, and shall not re-enter Oscar's for any reason for a period of one year. (Emphasis added.) ,The langu,age precludes reentry by McCoys. The statute ..~ provides for finding the building a nuisance, if illegal drug 'activity is present. The order effectively abates both the .; building and the business activity by preempting reentry ~ for 'any reason for one year. By virtue of the abatement ';order RCW 7.43.090(3) places the building in the custody of ,. , Ithe court. Therefore, the McCoys are not in possession. r.rhey cannot put the property to any economically viable :. use pending the expiration of one year, or further order of ~'the court lifting its order. . . This 'constitutes a total taking, though not a permanent itaking. "[T]emporary" takings are subject to the same ; categorical treatment as permanent takings where the ';regulation denies all use of the property. First English ; Evangelical Lutheran Church v. Los Angeles County, 482 i :U.S. 304, 318, 107 S. Ct. 2378, 96 L. Ed. 2d 250 (1987). The 'f, trial court's order works a temporary, compensable taking ~' Until it expires or is earlier terminated. This conclusion ": would not change even if the order were earlier terminated ~:' because. the. McCoys proposed to open a different kind of : business, which the court was satisfied was free from the '; ijIegal activity. A temporary, total taking would still occur, ;: only the duration would change. B. The Nuisance Exception to Takings , We need not make a public benefit or public interest ;- analysis at this stage, but instead go directly to consider- ; ation of the nuisance exception to a taking. ; . However, Lucas makes clear that a "total takings" claim, :' alleging deprivation of all economically viable use, does not require analysis of whether the regulation goes beyond pre- . ,venting a public harm to conferring a public benefit. Lucas, [505 U.S. at 1025,] 120 L. Ed. 2d at 819. Likewise, any analysis of the public interest advanced in support of the regulation is irrelevant to a "total takings" claim unless the State can show "Jj ,'I' 830 July 200(:(~ CITY OF SEATTLE v. MCCOY 831 101 Wn. App. 815, 4 P.3d 159 ':hich the' City asserts is the basis for abatement. , .' An abatement order may require closing a business if f,~~at business cannot operate without creating a nuisance: i, If the business of the appellant can be conducted on the :.' ';" premises described in the information, in such a manne~ as not to cause or create a nuisance, he [or she] should be permItted to so conduct it. !fit cannot, the rights of the appellant must yield to those of the public. L<Emphasis added.) State v. Schaefer, 45 Wash. 9, 11-12,87 ~~:P. 949 (1906). The record does not support a finding that the .f:McCoys or their employees were engaged in any illegal d,rug { activity on the premises. The record does not show the 'i IvicCoys consented to the drug activity or even had knowl- .'~dge of any illegal drug transaction when it occurred. The iiecord does not support a finding that the McCoys acqui- ~:;'esced in illegal drug activity or turned a blind eye to it. The ~~cCoys consistently sought police assis~~ce. The McCoys '~~osted a notice against illegal. drug actIVity. They ente~ed \lnto a trespass agreement With law enforcement which CiUlowed police to remove individuals and cite them if they iteturned to the premises within a year. The McCoys coop- {erated in the implementation of the agreement. They regu- ~;larly excluded people who had been arrested, were sus- ;:pected of drug dealings or who had been "trespassed" and rOscar McCoy testified against them in court. The McCoys fallowed DEA agents to use tpe premises to monitor drug .' ,activity in the vicinity. They routinely called 911 to report . .criminal activity and other problems known to them. The ; McCoys met with police to discuss actions they could t.ake to ~'C!iscourage illegal drug activity by patrons. And, they ll~ple- :;mented many but not all of the SPD's recommendatIOns, ,:.though they had no legal obligation to do so. :; .... The trial court found that the McCoys had made reason- ,:; able efforts to eliminate the illegal drug activity, but had inot been successful. The court further found that the t McCoys could not show they could immediately eliminate .' illegal drug activity in the future. The trial court's findings are not surprising. Constitu- CITY OF SEATTLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 f .. that the economically viable use denied by the regulation was. ;.. already barred by existing common law principles of the State's~~' property and nuisance law. See Lucas, [505 U.S. at 1015-16,]:; 120 L. Ed. 2d at 812-13. . '~ Guimont, 121 Wn.2d at 600. The City must therefore carry ,," its burden to overcome the categorical taking by establish~ .~ ing the common law nuisance exception. : [7, 8] The City maintains that it has met its burden of~; establishing a common law nuisance exception based upon;::' a showing that illegal drug transactions continued at the,). McCoys' premises after the police department provided;j notice to the McCoys of illegal drug activity. Since the l, McCoys excluded anyone from the premises who was idenr l tified to them as engaged in illegal drug activity, they:? abated the "nuisance" activity flowing from those activities.; The existence of a common law nuisance in this case, l therefore, is limited to illegal drug activity which was not :1\ known to the McCoys when it was occurring and for which '~. the identity of the participants was unknown. The questio~l then is whether the common law of nuisance would have 'if allowed abatement of the lawful business activity against ':. an innocent owner for the illegal drug activities of uniden~ i tified business patrons which, when the activities occurred, ~ were unknown and may not have been observable. Is the ::; owner strictly liable to have his business abated, or does ~t1 :,; risk depend on the reasonableness of the owners' actionsJ, based on the information-actual and constructive-the j, owners possess? 1. Nuisance Per Se The economically viable use being denied to the McCoys is the operation of a restaurant and lounge. "A lawful business is never a nuisance per se, but may become a nuisance by reason of circumstances." Tiegs v. Watts, 135 Wn.2d 1, 13, 954 P.2d 877 (1998); see also RCW 7.48.160 (Nothing which is done or maintained under the express authority of a statute, can be deemed a nuisance.). Nui- sance law would not have allowed closure of Oscar's for its; lawful service of food and beverage. It is the failure of the p' McCoys to prevent illegal drug activities on the premises :i. ,I, ~ ' '~".. . !'.: , .ll ;ii! ';!:. ~~ n ~~ :1 'ijf :J; ::11 l' , 'Ii ii' '''1 ,:1 ,~ I 'il. 'tt ' till, 't' ';."" -.:.\ . 832 CITY OF SEATrLE v. MCCOY July 2000 101 Wn. App. 815, 4 P.3d 159 tional rights protect individuals, including business pa-;. trons, from searches and surveillance necessary for such a guarantee. Prisons and jails cannot make such guarantees even with strip searches, body cavity searches, drug detec- tion dogs, camera surveillance, and guards. It certainly}: cannot be presumed possible that the owners of restau-'Y' rants, bars, department stores, office buildings, and civic, " ' arenas can guarantee that they will detect every incident of f illegal drug activity, let alone prevent it. To believe other- ~:, wise would require a presumption that an owner could seei, through clothes, tables; walls, and doors, as well as to read ( minds. Indeed law enforcement cannot guarantee what the i McCoys were being asked to guarantee. With the clandestine nature of undercover and confiden- tial informant drug buys like those conducted here, there is )f no way for any owner of a public or private building to .avoid ~: being caught and subjected to abatement. Owners SImply l' cannot avoid closure of their building and business when .~ they cannot identify or anticipate who will engage in illegal '~, activity and when. In reality, owners cannot strictly prevent '.'~ all illegal drug activity on the premises of their property.,:; The statutory language imposes an impossible burden. .' " . The McCoys were virtually helpless to prevent the un"; dercover drug transactions conducted by police. Th~! McCoys made reasonable efforts to stop and prevent repeat ': illegal drug activity by patrons when those patrons were;, identified. The McCoys did not cause or create a nuisance.', The McCoys' business was not a nuisance per se. 2. Washin~on Case Law . The City cites to a wide range of cases. We will consider, ( those involving business patrons. In Kitsap County v. Kev,:: Inc., 106 Wn.2d 135, 720 P.2d 818 (1986), the closure of the} erotic dance studio had a factual basis including an officerJ witnessing drug use by employees and a manager and:.: employees making contacts for prostit~tion. ~e ~llegal ~c~~ flowed from and mixed with the busmess actiVIty. ThIS 1~, Y factually distinct from the operation of Oscar's. Similarly, m~~' State v. Clancy, 99 Wash. 47,168 P. 894 (1917), the womeIi~ July 2000 CITY OF SEA'ITLE v. MCCOY 833 101 Wn. App. 815, 4 P.3d 159 employees were employed to draw men in and to solicit patrons to buy alcoholic drinks, in violation of the statute. In State ex rel. Kern v. Jerome, 80 Wash. 261, 141 P. 753 (1914), the owner was operating a house of prostitution. In Thwn of Kirkland v. Ferry, 45 Wash. 663, 88 P. 1123 (1907), the illegal liquor on the premises was known to the owner; he was selling it without a license. None of the cases cited involved strictly the illegal activity of patrons which be- , . came known to the owner only after the fact. No state case ~~. law establishes a prior abatement of a business based on } ~llegal acts of business patrons where the owner was not ,~ . fuvolved in or aware of the illegal activity at the time. . City of Bellingham v. Chin, 98 Wn. App. 60, 988 P.2d 479 1 (1999), review denied, 140 Wn.2d 1026 (2000), involved , application of the drug nuisance statute to a tavern. No / constitutional issues were raised in that ,appeal. The trial i court found that the owner should have known about the -;f ongoing drug dealing on the premises. Chin, 98 Wn. App. at ;':65. The activity was pervasive and flagrant. Chin, 98 Wn. ~. App. at 65. The bartenders were overheard answering the ?i>hone "[w]hat pharmacist do you want to talk to?" Chin, 98 t Wn. App. at 63. The trial court found Chin made no effort to ~)prevent the drug activity other than delegating the respon- :' sibility to two bartenders. Chin, 98 Wn. App. at 65. The 'f involvement of the bartenders may make Chin more akin to ~eases cited above, than to this case. However, if we assume ,that Chin had only constructive knowledge of the illegal ;;dtug activity comparable to the information the police :~supplied the McCoys, one difference stands out. The trial Fcourt found that the McCoys had made reasonable efforts to ~stop the illegal activity. 3. Restatement of Torts I"~ The parties and amicus direct our attention to the RE- ':STATEMENT (SECOND) OF ThRTS (1977). Section 838, entitled t:~ossessor Who Fails to Prevent Nuisance Caused by .... Activity," provides: t' . A possessor of land upon which a third person carries on an , [ \ , . ( 1 . , I 1 d ft I I I ~ I' G f! ,~l 1,;j )1 i :.','1 j ::~ ~:,. ; . t(' ;! Ii t , CITY OF SEATTLE v. MCC'OY 101 Wn. App. 815, 4 P.3d 159 activity that causes a nuisance is subject to liability for the nuisance if it is otherwise actionable, and (a) the possessor knows or has reason to know that the activity is being carried on and that it is causing or will involve an unreasonable risk of causing the nuisance, and (b) he consents to the activity or fails to exercise reasonable care to prevent the nuisance. 834 July 2000 _. The McCoys are possessors of land. See RESTATEMENT (SEC- OND) OF TORTS S 328E (1977). The illegal drug activities! alleged to be a nuisance were carried on by third persons., :, The McCoys did not know who was engaged in the illegal activity nor when it was occurring. The record does not show the McCoys had reason to know about specific illegal acts as they were happening. However, they were told after the fact that police had successfully arranged undercover buys or had observed illegal drugs in the possession of patrons in the restroom. This would satisfY the "has reason to know" portion of section 838(a). Even if knowledge of the illegal activity after the fact were enough to satisfY the first prong of section 838, neither component of the second prong is satisfied. The record does not support a finding that the McCoys consented to the illegal activity. The court found the McCoys had made reasonable efforts to address the problem. Therefore, operation of Oscar's was not an abatable nuisance under the Restatement test. 4. Out-of-State Cases The parties also urge us to consider out-of-state cases. We, are not bound to do so, since the test for the nuisance. exception un'der Lucas is the state law in effect when th~ McCoys acquired their property interests. Lucas, 505 U.S,. at 1027, However, a review of those cases is illustrative. The McCoys cite City of St. Petersburg v. Bowen, 675 So. 2d 626, 628, review denied, 680 So. 2d 421 (Fla. 1996), cert..' , denied, 520 U.S. 1110 (1997). There, the City sought aba~;;J ment of an apartment "building used by a youth and stree(;i~ gang for the purpose of conducting Ii pattern of youth and' :C, street gang activity," as provided by the nuisance statute;;~ . July 2000 CITY OF SEATTLE v. MCCOY 835 101 Wn. App. 815, 4 P.3d 159 No unlaWful activity by the owner was alleged. The build- ing was closed for a year as such a nuisance. The Court of Appeals found closure to be a taking requiring just compen- sation. The City cites City of Miami v. Keshbro, Inc., 717 So. 2d ," 601 (Fla. Dist. Ct. App. 1998), review granted, 729 So. 2d 392 (1999). The City Nuisance Abatement Board closed a 57 unit motel for drug and prostitution activity. The court found the nuisance exception of Lucas applied. A brothel and drug house had no protection at common law and were not part of the owner's bundle of rights. Kesbro, 717 So. 2d at 605. The record showed that the prostitution and drug activity were inextricably intertwined with the motel, and in reality, the motel was not a motel but a brothel and a drug house. In a footnote, the court explained that the decision did not conflict with Bowen: It is for this reason that we do not certifY conflict with City of St. Petersburg v. Bowen; i.e., Bowen does not include any discussion of inextricable intertwining of proscribed uses with other, valid, uses. Kesbro, 717 So. 2d at 604 n.8. InState ex rel. Pizza v. Rezcallah, 84 Ohio St. 3d 116, 702 N.E.2d 81 (1998), the Ohio Supreme Court considered several cases involving application of the Ohio drug abate- ment statute; each case involved a tenant or third party .:, engaged in drug activity in residential property. The court . found the nuisance activity could be established without proof of the owner's knowledge or culpability. The Ohio . statute provided no remedy short of a mandate for abatement once the nuisance was found to exist. The Ohio statute is very similar to Washington's, except a bond is required for early termination of an order. In addition, if the person committing the nuisance is a tenant, the owner of . the building can prevent the nuisance ifhe or she voids the lease. Omo REV. CODE ANN. ~~ 3767.01-3767.11 (Banks- Baldwin 1997). Relying on Lucas, the Ohio court found the closures of the properties for one year was a taking akin to " a forfeiture, but noted: 836 July 2060 CITY OF SEATTLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 that not all forfeitures or temporary takings without compen- sation are constitutionally infirm. The United States Supreme Court has held in a long line of cases that a state may use its police power to enjoin a property owner from activities akin to public nuisances without offending either the Due ProcesS or J Takings Clause. This court has also upheld the validity of forfeitures and closure orders resulting from nuisance abate- ment actions. . . . The law regarding seizures and forfeitures of property has received growing judicial attention in recent years, based, at least in part, on its increased governmental use. Though the federal courts have upheld forfeiture statues even as applied to innocent owners in a variety of contexts, they have also consistently recognized in dicta or by express reservation of comment that there are factual situations in which forfeitures exercised against innocent owners will be held to violate constitutional standards. Pizza, 702 N.E.2d at 89. Based on this analysis, the Ohio court found the one-year closure orders were seizures and forfeitures violating both the federal takings clause and due process clause. This analysis eliminates a distinction be~ .,; tween drug seizure statutes which authorize permaneIl~'.'~ forfeiture, except where the owner proves no knowledge 6f:, or consent to the illegal use (see RCW 69.50.505(a)(8)), and:; the temporary "forfeiture" from a one-year closure orde~V where the statute does not require owner knowledge. or; consent as a necessary element or defense (see R .' 7.43.010, .100). . .:' The court also looked to the facts of the owner's action,.' and the purposes of the statute: [T]here is evidence to suggest that [the defendants] all too affirmative actions to determine whether illegal activity w occurring, to notify and/or cooperate with police in investiga ing and terminating the illegal activities, and to use leg' means available to them to remove the offenders from property and abate the nuisance in a timely fashion. -.July 2000 CITY OF SEATTLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 837 The records in these cases support a finding that each of the three defendants not only remained uninvolved in and origi- nally unaware of the wrongful activity, but took reasonable measures to stop the proscribed use of his or her property upon discovering it. In fact, it is difficult to conceive of additional measures the defendants could have legally and safely taken which could have prevented or more quickly put an end to the illegal activities. Pizza, 702 N.E.2d at 91. The McCoys similarly reported problems to police, entered into a trespass agreement, "trespassed" people arrested for drug activity, "trespassed" people identified to them by law enforcement as people suspected of being involved in drug activity, and testified in court against those "trespassed." They routinely and uni- formly excluded the people known to or believed to be engaged in drug activity-the nuisance activity. They ex- cluded the nuisance actors and the nuisance activity when- ever they were aware of it. They implemented most of the suggestions made by law enforcement, but did not follow through with others. However, the record does not suggest that those measures not undertaken or any others could have prevented every instance of illegal drug activity, including police informant buys. In the Ohio cases, the State argued that the mandatory closure provisions protected the public by providing an incentive to property owners to actively monitor their property and to prevent the recurrence of felony drug transactions on their property. The City of Seattle essen- tially makes the same argument here. Though prevention of illegal drug activity is unquestionably a legitimate state interest, the Ohio court concluded: We hold, however, that the mandatory closure provisions of R.C. 3767.06CA) do not substantially advance this interest when imposed against property owners who have not acqui- esced to or participated in the illegal activity, and who have promptly abated the nuisance upon its discovery. Pizza, 702 N.E.2d at 92. We agree with its conclusion. 838 CITY OF SEATTLE v. MCCOY July 200Q 101 Wn. App. 815, 4 P.3d 159 The Ohio court noted the landlord's lack of authority to search tenants for drugs. The McCoys similarly lacked that authority. Neither the Ohio landlords nor the McCoys had any reliable basis to predict which people coming in the door would later become involved in illegal drug activity. Neither the landlords in Ohio nor the McCoys have legal authority nor resources to investigate. that would make them individually a match for the illegal drug trade. How- ever, in both cases the owners excluded the people engaged in illegal drug activity when that activity and those persons became known to them, and remained willing to do so in the future.6 Neither the state of Ohio nor the City in this case are satisfied by the fact that the owner informed police of illegal activity and excluded those known or suspected to be engaged in that activity. In fact, the mere report of the illegal activity would subject the property to abatement under the strict liability, absolute prevention policy argued both in Pizza and here. The Ohio court correctly observed that adopting such a position would be counter-productive: Rather than substantially advancing the goal of encouraging property ()wners to monitor their property and take all legal steps to abate illegal activities thereon, this provision may actually discourage owners from reporting illegal activity. Pizza, 702 N.E.2d at 92. On that basis the Ohio court struck down the Ohio statute. We conclude that the imposition of a closure order pursuant to R.C. 3767 .06(A) effectively closing real property against its use for any purpose for a period of one year does not advance a legitimate state interest when enforced against an innocent owner and that the state's interest does not outweigh the owner's interest in the economic use of his or her property. 6 This is a proceeding in equity. On the record before us, the trial court could well have found that the McCoys had abated all nuisance activities ofthird parties who were known to them. But for the literal reading ofthe statute, the court could have declined on equitable grounds to apply the remedy of abatement of the building absent an opportunity for the McCoys to exclude the offenders known to law enforcement but not to the McCoys. The McCoys stood willing to exclude violators known to them. July 2000 839 CITY OF SEA'ITLE v. MCCOY. 101 Wn. App. 815, 4 P.3d 159 Therefore, the mandatory closure order provisions of R.C. 3767.06(A) violate the Takings Clause of the Fifth Amendment to the United States Constitution when imposed against an innocent owner. Pizza, 702 N .E.2d at 93. The Pizza court's analysis supports our .:linding of a compensable taking without exception unde'r nuisance law. 5. Summary ~e common law nuisance exception turns on whether the c~urt finds, based on the evidence, that the owner has taken reasonable steps to abate the nuisance activity based upon the actual or constructive knowledge of the owner about the existence ofthe activity and/or the identity of the actor. The McCoys' actions were found reasonable. There- fore, the City has not met its burden, under Lucas, of establishing a common law nuisance exception to the tak- ing of the McCoys' property. The RESTATEMENT (SECOND) OF 'lbRTS and cases from other jurisdictions reinforce the con- clusion that imposition of the closure order on the facts of this case is a taking under the Fifth Amendment to the United States Constitution for which compensation is re- quired. C. Second Prong of Presbytery [9] Because the McCoys have not alleged less than a total taking, we need not proceed to the second of the Presbytery lines of analysis: determining if a valid state interest exists and balancing that interest against the economic impact to the landowner. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907 (1990); Guimont, 121 Wn.2d at 604. Had the court been proceeding under the more general nuisance statute and its common law equity powers and imposed conditions short of a categorical tak- ing, we would employ this test. See Robinson v. City of Seattle, 119 Wn.2d 34,51,830 P.2d 318 (1992); Presbytery of Seattle, 114 Wn.2d at 335-36. Iv: DUE PROCESS CHALLENGE [10] The inquiry into due process would normally not be 840 CITY OF SEATTLE v. MCCOY July 2000. 101 Wn. App. 815, 4 P.3d 159 undertaken after resolving the case on the basis of takings clause infirmity. See Armendariz v. Penman, 75 F.3d 1311, 1326 (9th Cir. 1996). However, this case is one of first impression. In the interest of comprehensive, timely dispo- sition of the statute, we will undertake the due process analysis as well. [11] The due process test is set forth in Guimont: "'(1) whether the regulation iNmed at achieving a legitimate public purpose; (2) whether it uses means that are reason- ably necessary to achieve that purpose; and (3) whether it is unduly oppressive on the landowner.'>> 121 Wn.2d at 609 (quoting Presbytery, 114 Wn.2d at 330.). The legitimate purpose of preventing illegal drug activity is not at issue, the McCoys agree it is a legitimate interest. The second question is whether the means are reasonably necessary to achieve the act's purpose. When the illegal activity is so intertwined with the legal business of the owner as to be indivisible, there is little question. Likewise, when an owner is a participant or knows and acquiesces in the illegal drug activity, this question requires little analy- sis. However, when the owner is not involved and neither knows of nor acquiesces in the illegal activity as or before it occurs, the question is closer. Here, the statute contem- plates closure of the property for one year as the sole remedy if the court is not satisfied the owner can and will prevent the nuisance in the future. So, whether it is reasonably necessary is largely moot; it is the only statu- tory alternative. [12] The due process analysis will therefore hinge on the third question, whether it is unduly oppressive, weighed against a number of factors: We determine if a statute is unduly oppressive by examining a number of nonexclusive factors to weigh the fairness of the burden being placed on the property owner: On the public's side, the seriousness of the public problem, the extent to which the owner's land contributes to it, the degree to which the proposed regulation solves it and the feasibility of less oppressive solutions would all be relevant. . July 2000 841 CITY OF SEATTLE v. MCCOY 101 Wn. App. 815, 4 P.3d 159 On the owner's side, the amount and percentage of value loss, the extent of remaining uses, past, present and future uses, temporary or permanent nature of the regulation, the extent to which the owner should have anticipated such regulation and how feasible it is for the owner to alter present or currently planned uses. Presbytery, 114 Wn.2d at 331 (citing Stoebuck, San Diego Gas: Problems, Pitfalls and a Better Way, 25 J. URB. & CONTEMP. L. 3, 33 (1983)). Guimont, 121 Wn.2d at 610. On the public's side of the analysis, drug activity is unquestionably a serious societal problem. No evidence suggests the illegal drug activity at Oscar's originates there. It may be conducted there, but it comes and goes with the patrons. The property has a sign posted prohibiting drug activity. Patrons are business invitees only for pur- poses of bar and restaurant business. There is no evidence in the record that the drug activity is greater in the general area, specifically attributable to Oscar's. There is evidence in the record that the closure of other establishments in the general area caused an increase in illegal drug activity in Oscar's, but not that the existence of Oscar's or any other establishment has generally drawn drug activity to the area. The only evidence in the record of increased activity drawn to the area is that instance in which a police informant paged a drug dealer to set up a controlled buy at Oscar's. The dealer was seen driving up to the premises. The closure of Oscar's would move the illegal drug activity out of that building, but there is no evidence it would stop the activity. There is no evidence it would even move the activity out of the general vicinity. It could be argued that the drug abatement recommen- dations offered by police were less oppressive solutions offered to the McCoys in advance of abatement. Many were undertaken by the McCoys before the proceedings. Oscar McCoy testified some were implemented during the pro- ceedings. All were aimed at discouraging illegal drug activo ity. But the City has not asserted that had the McCoys done '->, 842 CITY OF SEATTLE v. MCCOY July 2000 101 Wn. App. 815, 4 P.3d 159 everything asked of them, those measures would have guaranteed that the illegal drug activity would have been fully abated and prevented. Any less aggressive solutions would require statutory provisions allowing the owner to make reasonable efforts to prevent and to intercede when illegal activity is detected. This would mean the court would need authority to impose reasonable conditions to be met over a reasonable time at a reasonable cost. Even then, these alternatives might have been feasible to reduce the activity. It is improbable they could have been guaranteed to prevent it. However, the statute does not presently impose an obligation on owners to take such actions, and it would need to be amended to allow less oppressive solutions to be imposed by the court. On the McCoys' side of the analysis, the loss of value to them under the abatement order would be a total, tempo- rary loss. While the record does not provide a dollar amount, it does demonstrate closure results in a complete loss. There are no other uses allowed on the face of the order or under the plain language of the statute. Under the order, the property would be closed to the McCoys for one year. The court would have custody of the property. The statute does allow the order to be cancelled if the court becomes satisfied that the owner will immediately abate any nui- sance and prevent it for one year. The record is silent as to the nature of alternative uses for which the property is suitable. There is no evidence of what other business the court might find satisfactory. There is no record of potential economic costs to change use, nor whether it could be done in timely fashion in order to mitigate the impact of the order. No evidence was presented that the McCoys should have anticipated the enactment of a statute which would close their property on account of illegal drug activity engaged in by customers. The McCoys expected they could call the police for help eliminating drug activity, and that the police would identifY drug criminals so that they could be ex- pelled. They did not expect the police to engage in secret July 2000 CITY OF SEATTLE v. MCCOY 843 101 Wn. App. 815, 4 P.3d 159 drug buys without arresting the drug dealers and without identifYing the dealers so that the McCoys could exclude them. The McCoys had no reason to anticipate losing their building on account of activity they could not detect, let alone prevent. [13] ';l'he Ohio court in Pizza concluded that their stat- ute, which parallels Washington's, violated the federal due process clause; Further, we hold that because there is no intentional wrong- doing, no departure from any prescribed standard of action, and no reckless conduct, and because landowners are not completely free to act as they choose due to landlord-tenant laws and other limitations on self-help evictions, forfeiture under these circumstances is so arbitrary and oppressive as to be a taking without due process of law in violation of the Fourteenth Amendment to the United States Constitution. Pizza, 702 N.E.2d at 93. The statutory remedy in chapter 7.43 RCW, when applied to an innocent owner for the illegal acts of patrons which were unknown to the owner and which were not acquiesced in by the owner, is unduly oppressive. The statute allows no alternative remedy. Cur- tailing illegal drug use is a valid state interest, but not one which justifies closure of Oscar's on these facts. Chapter 7.43 RCW as applied to the McCoys, violates due process under the Fourteenth Amendment to the Constitution. V. VAGUENESS [14] Having decided this case on Fifth Amendment tak- ings and Fourteenth Amendment due process grounds, we decline to analyze whether the trial court's application of chapter 7.43 RCW violated other aspects of the McCoys' due process rights. We therefore will not address the McCoys' void-for-vagueness argument. VI. EVIDENTIARY ISSUES [15] The fourth assignment of error by the McCoys is the erroneous admissibility of hearsay evidence purporting to be the statements of confidential drug informants who did : ,] i'~ \;1 '.il CABLE, LANGENBACH, KINERK & BAUER, LLP ATTORNEYS AT LAW 1000 SECOND A VENUE, SUITE 3500 SEATTLE, WASHINGTON 98104-1048 TELEPHONE: (206) 292-8800 TELECOPIER: (206) 292-0494 JOHN G. BAUER e-mail;jgbauer@cablclang.com January 14, 2008 VIA EMAIL ANDU,S, MAIL City of Bremerton 345 6th Street, Suite 600 Bremerton, Washington 98337 Bremerton Police Department 1025 Bmwell Street Bremerton, Washington 98337 A TTN: City Council Members Cory Bozeman, Mayor Craig Rogers, Chief of Police Roger Lubovich, City Attorney Ken Bagwell, Assistant City Attorney Andrew Oakley, Community Resomce Specialist RE: Chronic Nuisance Property Ordinance Ladies and Gentlemen: We are the attorneys for Catholic Community Services of Western Washington and the Archdiocesan Housing Authority, who own and operate the Max HaleJow income housing project. Om clients have asked that we review your proposed Chronic Nuisance Property Ordinance that would revise Chapter 9,92 of the Bremelion Municipal Code, and comment upon the proposed ordinance from a legal perspective. Having researched the case law, we believe that a number of changes and clarifications are necessary before the ordinance will stand up to legal challenge. Om clients wish to cooperate with the City and the police and they are sympathetic with the overall goal of reducing criminal behavior. They have therefore instructed us to share our concerns about the ordinance with you before the law is enacted in the hope that modifications now will help avoid enforcement problems and litigation later. The focal point for a legal review is the relatively recent Washington Court of Appeals case of City of Seattle v. McCoy, 101 Wn. App. 815 (2000), which interpreted the enforcement of a statute similar to the one you are considering. A copy of that case. and a synopsis we prepared of it are enclosed. In the McCoy case, the Court of Appeals examined a Seattle enforcement action under Chapter 7.43 RCW, the Washington Drug Nuisance Statute. The case involved the enforceability of a nuisance statute that included a provision that could deprive a property owner of the use of its property if drug activity took place on the property unabated. Initially, the trial City of Bremerton Bremerion Police Department January 14,2008 Page 2 of 5 court held that a propeliy could be closed if drug activity continued to take place, even though the court also found that the property owner had made a reasonable effmi to prevent it. The property owner appealed and challenged the statute as a taking of propeliy without just compensation. The Court of Appeals agreed with the property owner. In reversing the trial cOUli, the Court of Appeals held that the enforceability of the statute turned on "whether the court finds, based on the evidence, that the owner has taken reasonable steps to abate the nuisance activity based on the actual or constructive knowledge of the owner about the existence of the activity and/or the identity of the actor." Put another way, if the property owner does not know about or condone the nuisance activity, the ordinance cannot be enforced to close the property, even if the nuisance activity continues. In other words, the government cannot close private property where the property owner docs not knowingly permit the nuisance to occur and continue. Our examination of the draft ordinance in question reveals that it does not fully and accurately take into account Washington law as set forth in the holding in McCoy, and therefore may be subject to legal challenge if the draft is not revised before it is enacted. We believe that the following changes are required before the statute would stand up to legal scrutiny. These comments are set forth in the order they appear in the statute. 1.) 9.92.020(e). The definition of "nuisance activity" contained in this section is overly broad and vague. Part (1) states that a "nuisance activity" can be "any nuisance as defined by state law or local ordinance occurring around or near a property." The language of this subsection would allow virtually anything that has ever been determined to be a nuisance to establish a violation of the statute. Not only that, but the language stating that the activity may be "around or near" a property means that the objectionable activity does not even have to take place on the private property in question. FUlihermore, there is nothing in the statute to clarify how far away such activity might occur, nor docs it state what a property owner might be expected to do to abate nuisance activity that occurs off of his property. The definition then goes on in subsection (2) to list 14 kinds of criminal acti vity that may constitute "nuisance activity." The definition would be far more certain if it were limited to the conduct listed in pmi (2). We believe part (1) should be stricken, or if the concept is to remain, the other nuisance activities should be clearly specified and the reference to activities "around or near" the property should be clarified or deleted. 2.) 9.92.030(b). This section describes the elements to be shown to establish a violation. In the McCoy case, the City of Seattle argued that the McCoys had "permitted" their property to be a chronic nuisance property. The court rejected the City's argument on the basis that the McCoys did not have specific knowledge of the violations, and were therefore powerless to prevent them. Accordingly, the word "knowingly" sho~lld be inserted so that 9.92.030(b) reads: Any person responsible for property who knowingly permits the property to be a chronic nuisance property shall be in violation of City of Bremerton Bremelion Police Department January 14,2008 Page 3 of 5 this chapter and subject to its remedies. (Emphasis supplied to reflect recommended revision.) 3.) 9.92.040(a). This section discusses the determination by the Chief of Police as to whether three or more nuisance activities have occurred within a sixty (60) day period on a property. The City apparently recognizes that it would not be helpful to discourage calls from property owners, however, so this section needs to specifically state that reports to the police made by the property owner cannot be counted against the property in making such a determination. As the Court of Appeals in McCoy recognized, the last thing the government should be doing is discouraging propeliy owners from contacting the police when they are aware of illegal activities. As the Court of Appeals noted in McCoy (relying on a case from Ohio): Rather than substantially advancing the goal of encouraging property owners to monitor their property and take all legal steps to abate illegal activities thereon, this provision may actually discourage owners from reporting illegal activity. Accordingly, we believe the following language (or something similar) should be added at the end of the first sentence of9.92.040(a): provided, that activities reported by a propeliy owner or other person responsible for the property shall not be included by the Chief of Police to determine that three or more nuisance activities have occurred on a property during the sixty-day period. 4.) 9.92.040(b)(4). This section requires the Chief of Police to warn the person responsible for the propeliy that the propeliy is in danger of being declared a chronic nuisance property. The warning is required to contain, among other things, an offer to the person responsible of an opportunity to abate the nuisance activities. In order for the person responsible to act on the offer, however, the warning should specifically describe what abatement activities the person responsible is expected to take. Without a description of the steps the Chief of Police expects the responsible person to take to abate the nuisance, the person responsible will have little or no way of knowing what is expected. We therefore recommend that this section read: (4) a description of the steps the Chief of Police believes the_ person responsible should reasonably take to abate the nuisance, and an offer to the person rcsponsibLe of an opportunity to abate the nuisance activities giving rise to the violation within a reasonable time. (Emphasis supplied to reflect recommended clarification. ) 5.) 9.92.040(e). The second sentence of this section appears to impose strict liability on the property owner, something that was specifically rejected by the Washington Comi of Appeals in the McCoy case. This section needs to include an exception for situations where the nuisance activity cannot be abated even though the owner has taken reasonable steps to abate the City of Bremerton Bremelion Police Department January 14,2008 Page 4 of 5 nuisance activity. We recommend the following additional language based upon the holding in McCoy: provided, that in the event the Chief of Police or City Attorney determines that the person responsible has taken reasonable steps to abate the nuisance activity, the City Attorney shall not commence an enforcement action under this Chapter, notwithstanding the continuance of the nuisance. 6.) 9.92.050(a). The wording of this section appears to require the City Attorney to initiate legal action if a matter is referred to the City Attorney. The phrase "whether or not" should be inserted to make it clear that the City Attorney has the authority to reject enforcement action urged by the Chief of Police: Once the matter is referred to the City Attorney, the City Attorney shall immediately review and make a determination whether or not to initiate legal action authorized under this chapter or state statute, or may seek alternative forms of abatement of the nuisance activity... (Emphasis supplied to reflect change.) 7.) 9.92.050(b). This section also does not accurately reflect the law following the McCoy case. Not only does the City have the burden of proof to show that the property is a chronic nuisance propeliy, but the City also has the burden of showing that the person responsible for the property has failed to take reasonable action to abate the nuisance activity. The first sentence of9.92.050(b) should be revised to read as follows: In determining whether a property shall be deemed a chronic nuisance property and subject to the court's jurisdiction, the City shall have the initial burden of proof to show by a preponderance of the evidence that the property is a chronic nuisance propeliy and that the person res1'onsible for the property has failed to take reasonable action to abate the nuisance activity. 8.) 9.92.050(c). This section also fails to take into account the fact that, under the McCoy precedent, the court must not only determine that the property is a chronic nuisance, but also that the person responsible has knowingly permitted to nuisance to continue unabated. Accordingly, the first sentence of section 9.92.050(c) should be revised to read as follows: Once a superior court determines the property to be a chronic nuisance under this Chapter and determines that the person responsible has knowinglv permitted the nuisance to continue unabated, the court may impose a civil penalty against any or all of the persons responsible for the property, and may order any other relief deemed appropriate. City of Bremerton Bremerton Police Department J anllary 14, 2008 Page .5 0 f .5 9.) 2.92.Q~Q..(Q). This section has the same problem as the preceding section. It should read: The superior court which determined thc property to be a chronic nuisance property and determined that the person responsible bas knowingly permittcd the nuisance to continue unabated shall also asscss costs against thc person responsible in the amount it costs the City to abate, or attempt to abate, the nuisance activity. 10.) 9.~2..0.50(~. This section has the same problem as the two preceding sections. it should read: I f the superior court determines the property to be a chronic nuisance property and determines thaUb~p~!'~OJ:lJ~~12QJ1Bil)1~J.:m~ knowil1glyj~rmitted the nuisance to continue unal]~teg, the Superior Court shall order the property closed and secure it against all unauthorized access, use and occupancy for a period up to one year, and may impose a ci vii penalty and costs. We believe that unless these problems with the ordinance are addressed in advance, the City will face litigation if and when it attempts to enforce the statute (and particularly if it attempts to close a property), and that the ordinance could well be overturned based upon such a challenge. Thank you in advance [or undertaking a careful study of the lvlcCoy case and incorporating these recommended revisions that are necessary to tighten up the ordinance before it is enacted. Please feel free to contact us to discuss the concerns raised herein. Yours very truly, . <) .,.,- '.... I,. " , f ' Johh G. Bauer , JGB:nm Enclosures cc: Catholic Community Services of Western Washington Archdiocesan Housing Authority Bremerton Housing Authority Page 1 on Lori Smith From: Lori Smith on behalf of City Council Sent: Monday, January 14, 2008 11 :12 AM To: Adam Brockus; Brad Gehring; Carol Arends; Dianne Robinson; Mike Shepherd; Nick Wofford; Roy Runyon; Will Maupin Cc: Andrew Oakley; Ken Bagwell Subject: FW: Citizen Letter - Proposed Bremerton chronic nuisance ordinance FYI... -----Original Message----- From: Walter Bale Properties [mailto:balecompany@yahoo.com] Sent: Monday, January 14, 200810:51 AM To: Puget Rental Owners Association; City Council; Cary Bozeman; Tony Mauk Subject: Proposed Bremerton chronic nuisance ordinance Hello, I read the Jan 13th 2008 Kitsap Sun article regarding the subject proposed nuisance ordinance. I agree with the concerns voiced in the article by John Hennessey. We have over 150 units in Bremerton (in three council districts) and if the ordinance is going to use three calls to 911 as a trigger to invoke action, then it will be very burdensome to us as property owners and operators. Also, as it currently stands we have never received proper timely notice from the city when the police have found illegal activities going on in any of our apartments (which is very rare thankfully). We just received a letter from BPD stating that on Nov 20th 2007, they found illegal activities occurring at one of our apartments. We did not receive ANY notice from the city until we received a letter from BPD SOG on 12 Jan 2007, which is almost 5 weeks after the fact! As a responsible landlord, I want to know of problem tenants immediately. Today, we are still trying to get copies of the police reports for this incident and it will take another 2 to 3 more days just to get the reports before we can even begin eviction efforts against this tenant. No matter what the city does regarding this proposed ordinance, the property owner/agent must be informed of nuisances in a timely manner if it is to have any sort of positive effect. Thanks, Bob Bale Bale Property Enterprise, LLC dba WALTER BALE PROPERTIES - Cedar Glen, Maple Manor, Kitsap Inn Apartments (Bremerton) Springtree Apartments (Lakewood) 2700 Maple Street Bremerton, WA 98310 PO Box 2787 Bremerton, WA 98310 Robert Bale - 360271 0146 Glen Bale 3606892174 Brownsville office - 360 6927409 Fax -1 866211 1886 1/14/2008 Page 1 of 1 5~ Lori Smith From: Monte L. Simpson [montesimpson@msn.com] Sent: Friday, January 11, 2008 8:20 PM To: City Council Subject: Bremerton Patriot Article: Proposed Ordinance would involve police department Good evening, I read with interest the article in the January 12,2008 edition of the Bremerton Patriot titled Nuisance properties catch council's eye. The sub title is Proposed ordinance would involve police department. I am baffled by such a proposal to drag the police department into code enforcement. The police department reports it does not haye enough officers to keep up with the needs in the city. Motorist continue to show disregard for the traffic laws and their neighbors. The city is installing cameras at selected intersections to catch violators. I assume this is to free up officers for higher priority calls. I respectfully request that the police be left to enforcing RCW chapter 9, 9A, 46 and 66, etc., and leave code enforcement to the appropriate professional. I find it interesting that Bremerton Police Department community resource officer Andy Oakley can say this isn't a big problem. If he doesn't have enough police related activity to do transfer him to the public utilities department to help the code enforcer. Monte L. Simpson montesimpson@msn.com 1/14/2008 r I, Page 1 of 1 Lori Smith From: Monte L. Simpson [montesimpson@msn.com] Sent: Sunday, January 13, 2008 9:20 AM To: editor@bremertonpatriot.com Cc: City Council Subject: Nuance Properties Catch Council's Eye Mr. Melton, In the Saturday, January 12, 2008, edition of the Bremerton Patriot is an article titled Nuisance properties catch council's eye with a major heading bullet, Proposed ordinance would involve police department. I wo~uld like to point out that your article failed to do one thing and that is define what nuisance property is at it relates to this specific issue. The Kitsap Sun took the extra step to explain exactly what the ordinance was addressing. In the normal context nuisance property is the one with old stoves, refrigerators, broken down lawn mowers and vehicle hulks on it. There even might be an infestation of mice and rats on the property because of junk piled up. Based on your article I wrote an e-mail to the city council protesting the use of the police department to enforce a nuisance property law. Had I known the facts as they are presented in the Kitsap Sun I would have reacted differently to the story. I am disappointed in the way this article was written and published. In the future I'll be more guarded about accepting what I read in the Patriot. I guess there is only one thing worse than a the media not telling the full story and that is a reader being gullible enough to believe what they read in a paper. Mr. Melton, I have often looked at your papers as being a balance for the Sun because I've seen in some cases they do not present an impartial report. From this point on I am going to be wondering what other parts to the story you are leaving out. Sincerely, Monte Simpson montesimpson@msn.com 1/1412008 Page 1 of2 Lori Smith From: Galen & Karen Danis [gkdanis@comcast.net] Sent: Sunday, January 13, 2008 9:23 PM To: City Council Cc: Ken Bagwell; Andrew Oakley; 'Judy McDonald (w)'; Judy McDonald Subject: Please consider this version of the Draft Chronic Nuisance Property Ordinance Attachments: CNP-Proposed Draftl(Jan12-08).doc ** Please pass to all City Council members ** I agree that the City of Bremerton needs a Chronic Nuisance Property Ordinance. The article in today's Kitsap Sun touched on concerns for vague wording and the sense that City officials would have too much power. One of the primary contributors to the power issue is the extremely broad scope of the definition of nuisance activities in the current draft-particularly the civil offenses. That was not the intent of those of us who drafted the ordinance; we had carefully analyzed the types of activities that prevented the City from sustaining "safe, peaceful neighborhoods." We wanted to move forward with an enforceable ordinance that helped to prioritize scarce enforcement resources by targeting the most egregious activities. Consequently, we now have a mismatch between the language of the Purpose ("grave health, safety and welfare concerns") and the language of the Definition. The attached revision of the Jan 2 version reinstates the specificity that we would have wanted, and eliminates the language that currently pulls in ALL state laws and local ordinances pertaining to nuisances-including nuisances that have no bearing on the issue at hand, or on a reasonably-conceived, future form of the issue at hand. Please note the red marks; I have used MS Word's "track changes" so you can see all recommended updates, including two additions: a. Animal Noise, BMC 7.15. Rationale: to my knowledge, this is the only remaining issue not addressed by the current draft. County Animal Control Officers serve notices of violation (loose term), based on certified complaints (under penalty of perjury) from citizens who have kept logs ofthe noise (ask me...1 can speak from first-hand experience). These personal visits from Animal Control are equivalent to a police "call for service" and should not require court action to be deemed a relevant nuisance activity. At this time the next step is court; the "escalation" is slow (taking 60-90 days for a court date) but steep. Inserting an interim step-contact from a City official-can grab the attention of the perpetrator without the increased pressure of a court room (which can have its own adverse side effects). b. Dangerous Animals, BMC 7.12. Rationale: technically, this is covered under the blanket inclusion of all criminal offenses. Yet, it is noticeably missing from the list of offenses that have been highlighted. Safety on the streets requires us to address this particular issue-often associated with drug dealers. If you have questions, you can reach me at the phone number below. Monday and Tuesday will be the best days to call. Respectfully, 1/14/2008 Page 2 of2 Xaren T. 1fJanis, CJCM/CX'E'E I (360) 377-2226 I I ] I I I I I I ! i I I I I I I I . I I I I I I I 1/14/2008 Christine Grenier Page 1 of 1 C"': I"'~ ( "'" (A)w Y1[/ fte,tl-t~ C t-. i~ f' Ro:Jflt'5 .._----~ From: Jim McDonald [mazama90@msn.com] Sent: Sunday, November 04, 2007 8: 18 PM To: City Council Subject: Councilman Gehring- Chronic Nuisance Ordinance C-'"'" '''''--"',-.-----.-,.----.---,>-...---. -...----1 ~'>+'l "17'~.." iliJ F' ~ '~ffi 'il. ':'\'" ,co I ~{" [. wi:) ~9~ ~.'" iF ~! N ~~',r &i.:, ;~.:, '.; '" :,', ;",', i ~ 'o~~' rl f! f'~!f ~)~ [;~ ;~~ ~ h ,,~! 1';"lI?J'l I I I /" l"'.-,,,~-"-=.='.-~-.,,.->_,,..~. '.'..." I / I I I' /. '; II f I' t-'-'-'-;;'81&>:1--i,~~5'/~it- 0/ t~=.:::..-=~=~-=-~J Dear Councilman Gehring, Thank you for taking the time to fully understand the issues underlying the need for an ordinance dealing with chronic nuisance properties. As citizens of district I and rental property owners in Bremerton, my husband and I fully understand the impact a Chronic Nuisance Property (CNP) ordinance can have. Bremerton's existing nuisance and criminal ordinances have not been effective in resolving the city's nuisance property issues. This is because current laws are aimed at individual( s) living at a residence and are specific to an event. The Chronic Nuisance Property (CNP) Ordinance is designed to be a next step in resolving these issues by involving the owner of a property and including both civil and criminal offenses. The new ordinance gives incentive to the property owner to screen their tenants, remove those that create neighborhood disturbances, and stop repeat offenses. The CNP ordinance is designed to be lleighb9rh9_Q.dJri~ndly and property owner respectful. It is important to know that properties designated as chronic nuisances are those which have a "tremendous negative impact upon quality of life, safety and health, and property values of the n~ighborhoods where they are located". To receive this designation, properties must meet specific designated criteria. The CNP ordinance is not intended for owners that are aware of and responsive to issues on their property. However, it is meant to give incentive to those that do not manage their properties in a civically minded manner. Chronic nuisance properties damage community spirit, undermine future growth, and are a financial burden to the city by repeated calls for service. Chronic nuisance enforcement aimed at the person ultimately responsible for the residence has proven successful in several cities including Spokane, Portland, and Tacoma. Bremerton needs this focused ordinance as a means to affect the long-term changes needed to improve the livability of our neighborhoods. I would welcome the opportunity to speak with you further on this issue and answer any questions you may have regarding the development of the Chronic Nuisance Property Ordinance. Sincerely, Judy McDonald Lewis Avenue Neighborhood Watch Captain Neighborhood Watch Captain's group Co-Captain CNP ordinance development team member 11/5/2007 Page 110f 2 Christine Grenier From: richard_mccullough [flydaddy97@yahoo.com] Sent: Tuesday, January 15, 2008 12:36 PM To: Galen & Karen Danis; 'Alan Winkley'; 'Alexis Hood'; Cindy Barrett; 'Clara Kippola'; 'Delaine Soappman'; 'Gary and JoAnn Blackwood'; 'Greg and Karen Shildmyer'; 'J. Mark Hood'; 'Jean McCullough'; 'Jodi Jones'; 'John and Millie Becker'; 'John Cockburn (Parr)'; 'Josi Cockburn'; 'Karen Anderson'; 'Michael Fowler'; 'Millie Becker'; 'Paul and Kathi Hammond'; 'Paul McCullough'; 'Ray and Kay Magerstaedt'; 'Rich McCullough'; 'RJ Peabody and Donna Miller'; 'Sandi Schmidt'; 'Ted and Karen Berney' Cc: Legal; City Council; The Mayor; editor@kitsapsun.org Subject: Re: From Kitsap Sun: Proposed Bremerton Ordinance Would Pump Up the Pressure on Problem- House Landlords As a landlord who has had to deal with a deadbeat tenant, I'm concerned that this increases a landlord's responsibility but does not increase his ilythority. It's very expensive and time consuming to evict an irresponsible tenant, much less hold him accountable for anti-social behavior. Much of the law that makes that so is outside the control of the city. I've not heard any evidence, anecdotal or otherwise, that indicates landlords are commonly indifferent about the negative impact their tenants have on the neighborhood. On the other hand, there is plenty of evidence that landlords are the biggest victims of these sorts of bad tenants. Until and unless we deal with the ridiculously one side tenant laws, nuisance rentals (the vast majority of all nuisance properties) will continue unabated. It's high time we aim the arrow on the right target. Richard McCullough 1618 Jacobsen Blvd Bremerton, W A 360.373.9739 Galen & Karen Danis <gkdanis@comcast.net> wrote: FyI....the Chronic Nuisance Property Ordinance is getting its day in court...will be voted on this Wednesday. Did you see the article in the Kitsap Sun, published yesterday? If not, here's the link.... "Proposed Bremerton Ordinance Would Pump Up the Pressure on Problem-House Landlords" http://kitsapsun. com/news/2008/j an! 12/ ordinance- would - up-the- pressure-on-Ian dlords-of/ Best, Karen 1/16/2008 Page 2 of2 ~ ever miss a thing. Make Yahoo your homepage. 1/16/2008 Christine Grenier From: XOXO SAN DOG [sandog6457@hotmail.com] Sent: Monday, January 14, 2008 7:50 PM To: City Council Subject: Chronic Nuisance Property Ordinance I am a city of Bremerton resident / home owner living on the 900 block of Highland Ave. This is an important issue in my neighborhood. I fully support this new Ordinance and hope you will also. Thank You! Barb Nordstrom Put your friends on the big screen with Windows Vista@ + Windows LiveTM. Start now! 1/16/2008 Page 1 of 1 Page 1 0[2 Christine Grenier From: Vic Ulsh [Vic@bradleyscottinc.com] Sent: Monday, January 14, 20086:15 PM To: City Council Subject: Chronic Nuisance Property Ordinance Attachments: DOC (23).PDF See attached signed letter to City Councilnlan Adam Brockus. The text is copied below: January 14th, 2008 Adam Brockus City Council City of Bremerton Hello Adam: I am writing to let you know I support the "Chronic Nuisance Property Ordinance" as proposed to the City of Bremerton. The high percentage of rentals within Bremerton, and the significant number of incidences regarding recurring problems with tenants/landlords, makes this an important tool for improving the quality of life in our City. Please support the Chronic Nuisance Property Ordinance as a valuable piece of the solution to making our neighborhoods better places for families, better places to live, and better places to call home. Please call me with any questions or concerns. Thank you. Sincerely, Victor C. Ulsh 2128 East 24th Street Bremerton, Washington 98310 HM (360) 373-4824 WK (360) 479-6900 1/1612008 Page 1 of 1 Christine Grenier From: Tonia Hammock [nannatoni@comcast.net] Sent: Tuesday, January 15, 2008 9:46 PM To: City Council Subject: Supporting Chronic Nuisance Property Ordinance ATTN: Adam Brockus, City Council, City of Bremerton Hello Adam: I support the "Chronic Nuisance Property Ordinance" as proposed to the City of Bremerton. I am surrounded by rentals and have had negative experiences with some area tenants and their landlords in the past. The high percentage of rentals within Bremerton, and the significant number of incidences regarding recurring problems with tenants/landlords, makes this an important tool for improving the quality of life in our City. Please support the Chronic Nuisance Property Ordinance as a valuable piece of the solution to making our neighborhoods better places for families, better places to live, and better places to call home. Please call me with any questions or concerns. Thank you. Sincerely, Tonia M. Hammock 2431 Snyder Avenue Bremerton, WA 98312 phones: (360) 479-1802 home (360) 204-0306 cell 1/16/2008 Page 1 of 1 Christine Grenier From: Craig & Marcella Moran [doghaven@comcast.net] Sent: Monday, January 14, 2008 7: 19 PM To: City Council Subject: Chronic Nuisance Ordnance Please support this ordnance. We have been calling the Police for over three years now concerning the property next to us, and with no help or results. Mayor Bozeman will not return calls or emails. We need help! Thank you, Craig 1/16/2008 Dear Council Member, January 15, 2008 I am writing this letter in reference to the Chronic Nuisance Ordinance that you are about to put into law. First I want to say I am opposed to the law because it targets one particular group of people. In some instances this would be discrimination . I think you are targeting many landlords who are performing a service to families and individuals who could not otherwise afford to live in a given area. I also know some landlords keep up their rentals better than many home owners and even take pride in keeping them up. I try to keep my units up in good clean condition. I keep good paint and roofs on them and keep after tenants who let their garbage build up . I know there are landlords who do not keep their units up, but do not punish all landlords for those few. You may also have the flip Side of the coin where landlords charge tenants for calling ill a 911 call . This could be dangerous as folks will not call in frivolous things, but it could mean a missed serious call. There are many good landlords out there and we provide a service to people who otherwise would not have a home. Over 60 percent of the voters in Bremerton are tenants who elected you. Do you really want to drive them out of the city? I have had occasion to call the drug folks on a rental unit adjacent to mine. I had called several times and always got the same story we have to work on it . I even had a vacant unit beside the suspected drug unit and offered to allow the drug officers to set up cameras and film the activity and license plate numbers and they just did not have time. I also spoke to the landlord more than once and to Bremerton housing because they were section 8 and had two pit bulls to feed. Nothing was ever done. Now if they had no time for this why would they want to take on an additional ordinance requiring time? I recommend we pursue all avenues before taking such a heavy handed approach. I am member of Puget Rental Owners for 30 years and I oppose this ordinance. Thank you, ~~~ To: From: Bremerton City Council PROA 645 4th Street Bremerton Wa. 98337 On behalf of PROA I would like to thank the City for establishing the position in the Police Dept. a Community Resource Specialist which is currently staffed by Andy Oakley. Since Mr. Oakley has come on board, PROA has met with him on numerous occasions and has had very positive ongoing dialogue. Mr. Oakley was a speaker at one of our recent general membership meetings and met with our board on numerous occasions. He has also been a valuable resource to our members on an ongoing basis. We all want to achieve the same goals, that is safe and crime free neighborhoods. We are however very disappointed with both the method of developing the proposed policy as well as the extreme policy itself. In our initial discussions with Mr. Oakley, about six months ago we simply requested that a policy be established that would result in an owner being notified in a tiI?ely manner when there was police or fire activity at their building. This would provide that owner an opportunity, real time, to address the problem. Recently one of our members had a shooting in his building and read about it in the paper the next day. The owners name and phone number were clearly visible on the side of the building but still no notification from Bremerton Police. This basic request for timely notification has yet to be adequately addressed and is still a serious issue. The proposed Ordinance before you seems to hold a property owner responsible for the residents and resident's friends' behavior and conduct both on and off the property for some undetermined distance from the subject property. If there are three "nuisance violations" per the Ordinance within a 60 day period the property owner could be fined and or possibly lose the use of the property for a year. Even given the serious consequences, the Ordinance does not require the property owner to be notified until the third nuisance event. In order for a property owner to take timely corrective action they must and should be notified as soon as possible by mail or even a phone call. How does the city currently notify citizens of important issues now? The City currently notifies property owners bv mail in a timely manner the following: l.Notices of overdue water/sewer bills. 2.All annual business license bills. 3.A notice of all current nuisance abatements such as tall grass, abandoned vehicles and garbage in yards etc. 4.All drug and domestic violence events as required by the Washington State Landlord Tenant Law. 5. The Health District also sends nuisance abatement letters. 6. Waste Management also provides timely notification of city starts on garbage servIce. 7. The County Assessor routinely sends letters on any number of issues related to assessments. .,/" The City knows who the property owners are and if there is any question the owner can be located using the County web site Assessor's link in less than a minute. It is very curious that an issue as critically important as a single nuisance event that may provide a significant disruption of a neighborhood, or could after two more events. within a 60 day period result in tenant evictions, substantial fines and/or the possible loss of ones right to use their property for a year would not warrant the same notice consideration as an annual $65.00 bill for a business license. The city is proposing an e-mail notification system that has yet to be fully implemented, developed or tested. It should be noted that the Bremerton Municipal Court as well as all judicial and quasi judicial venues do not accept e-mail notices as legitimate correspondence for legal matters. Even if the e-mail system is fully implemented it will never reach all owners or responsible persons. It is not clear in the proposed Ordinance what type of an event would constitute a "chronic Nuisance". It appears that any conceivable violation of law rule or regulation could qualify. This is apparently to be determined and evaluated by a "Code Compliance Committee" or some City staff persons the method of which is not discussed or codified in the Ordinance. Do all police calls constitute a nuisance? What if there is no police . report documenting the call? What about nuisances like garbage throughout the yard that was caused by the wind, animals or simply vandalism? How does one prove one was the victim of a crime? Is it now necessary to report illegal dumping to the police to simply obtain a police report and than report it to the Health District for enforcement action in order to avoid being identified as a chronic nuisance? Is a garbage can lid missing treated to the same degree of nuisance as a resident who is engaged in felony activity in a building? It would appear so under the Ordinance. The Ordinance appears to create a risk for any business person providing services or housing to special needs persons with medically certified behavior problems. This Ordinance creates a strong disincentive to provide housing to such persons and could violate their Civil Rights. The Ordinance was provided to PROA in it's "draft" form for discussion. While there was an opportunity for some limited discussion and input there was very few PROA comments taken or incorporated into the final draft before you. There is a better model for the development of such broad sweeping policies that should have been considered. All of the stake holders could have been invited to participate in the development of the policy instead of responding after the fact. This model was successfully applied by the County Commissioners in response to the Kona Village fire ten years ago. A community group of stakeholders was tasked by the County Commissioners to respond to this disaster The stakeholders met and developed a comprehensive response that resulted in the implementation of numerous fire prevention policies throughout the County that created a safer community. Kitsap County received numerous State and National awards for their inclusive and comprehensive approach to the issue and some of the solutions developed In Kitsap were incorporated into the National Fire Code. t//' The proposed Ordinance before you as well as some ofthe public comments by elected officials appears to implicitly "blame" residential investment owners and their tenants for most of the "nuisance violations" in the community. This is simply not justified. There are numerous other strategies the City of Bremerton can and should consider pursuing to deal with crime and nuisance issues all of which have been adapted successfully by other more progressive communities as follows: 1. Establish a citizens Crime and Nuisance task force to develop a more comprehensive approach to resolving these issues. This is what the County did so successfully in response to the Kona Village fire. 2. Develop a street lighting program/policy. The only area where the city has incorporated more and adequate lighting is downtown where few residents live. Anyone in law enforcement will advise that additional lighting is an excellent tool to deter crime. What is Bremerton' s street lighting policy and how can a citizen obtain additional lighting? 3. Develop and conduct an ongoing crime prevention training program for all businesses, homeowners and residential investment property owners. This training is provided in Tacoma twice a year, Portland, plus numerous cities throughout the nation. It is done in partnership with the community stakeholders and it works. 4. Develop and adapt/or implement a Crime Prevention program Thru Environmental Development (CPTED).These are design features that can be incorporated into new construction or in remodels that help to preempt crime. Basically there are design features to crime proof ones home or business. The city of Seatac as well as many other progressive cities in the area have adapted such standards. There are none in Bremerton. This is just a few ideas adapted by other communities that have chosen to embrace all elements of their community as partners. Thank you for your consideration of the above. Weare looking forward to working with the City of Bremerton in a positive and collaborative manner to provide safe and affordable housing for all of Bremerton's residents. Sincerely Jim Weber, PROA President elect By Direction, PROA Board