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Council PKT 12-21-1999 RegularCITY CO UNCIL MEETING AGENDA COUNCILMEMBERS Ron Gin'tz, Mayor Jeanne Burbidge Jack Dovey Mary Gates Linda Kochmar Michael Park Phil Watkins City Manager David H. Moseley AGENDA FEDERAL WAY CITY COUNCIL Council Chambers - City Hall December 21, 1999 (www. ci.federal-way, wa. us) PUBLIC RECEPTION HONORING OUTGOING COUNCIl,MEMBERS - 5:30 p,m, MAYOR RON GINTZ & COUNCILMEMBER JACK DOVEY REGULAR MEETING - 7:00 p,m. CALL MEETING TO ORDER PLEDGE OF ALLEGIANCE ao PRESENTATIONS City_ Manager/Introduction of New City Employees Ci_ty Manager/Emerging Issues CITIZEN COMMENT PLEASE COMPLETE THE PINK SLIP & PRESENT TQ THE DEPUTY CLERK PRIOR TO SPE~KING. Ci~e~ may address City Council at this time. When recognized by the Mayor, please come forward to the podium, adjust the microphone to proper height, and state your name and address for the record. PLEASE LIMIT YOIIR REMARKS TO THREE (:J~ MINUTES. The Mayor may interrupt citizen comments that continue too long, relate n#gative~y to other individuals, or are otherwise inappropriate. over please . . . V. CONSENT AGENDA Vie (Items listed below have been previously reviewed by a Council Committee of three members and brought before full Council for approval; all items will be enacted by one motion; individual items may be removed by a Councilmemberfor separate discussion and subsequent motion.) g. h. i. j. k. 1. m. Il. o. p. q. r. s. Minutes/December 7. 1999 Regular Meeting Voucher/Deceml~er 21, 1999 Monthly Financial Report/Month of November 1999 Council Bill g239Criminal Co~ Amendment/Enactment Or0inance Council Bill #240/Adult Uses Code Amendment/Enactment Ordinance Council Bill g241/Natural Gas or Manufactured Gas Use Tax/Enactment Ordinance Year 2000 Right-of-Way Landsc~ape Maintenance Contract Award 2000 Vadis Northwest/Litter Removal Contract So 312"' St/SR99 to 23~ Ave So Street Improvements Project SR99 at So 330"' St Intersection Improvement95 % Design So 320a St & SR99 Widening & Intersection Improvements/85 % Design 2000 Commute Trip R~uction Act Interlocal Agreement with King County/Metro King County Waterworks Grant/Formation of Hylebos Stream Team Ca_oital Facilities Plan U_odate/Acceleration of "WH11-CIP-03 SR99 Storm Drain" Dumas Bay Centre Janitorial Contract Renewal 401(a) Deferred Com_~nsation Plan Establish Authorize Signature for Municipal Court Bank Account/Resolution Munic~al Court Venue/Re3oluti0n Renegotiated Interloeal Agreement with FW School District for School Security_ CITY COUNCIL BUSINESS Extention of Time for Consideration of Lakehaven Comprehensive Wastewater Plan VII. INTRODUCTION, ORDINANCE Council Bill ~242/1998 Comprehensive Plan Amendments/Personal Wireless Communication Facilities AN ORDINANCE OF THE CITY COUNCIL OF ~ CITY OF FEDERAL WAY, WASHINGTON, AMENDING CHAPTER 22 (ZONING) OF THE FEDERAL WAY MUNICIPAL CODE PERTAINING TO SITING AND DEVELOPMENT STANDARDS AND REVIEW PROCESSES FOR PERSONAL WIRELESS COMMUNICATION FACILITIF_3. CITY COUNCIL REPORTS IXo CITY MANAGER REPORT Xe EXECUTIVE SESSION' Collective Bargaining/Pursuant to RCW 42.30.140(4)(a) ** THE COUNCIL MAY ADD AND TAKE ACTION ON OTHER ITEMS NOT LISTED ON THE AGENDA ** MEETING DATE: December 21, 1999 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM CATEGORY: BUDGET IMPACT: _X_CONSENT ORDINANCE BUSINESS HEARING RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Minutes for December 7, 1999 regular meeting SUMMARY/BACKGROUND: Official City Council meeting minutes for permanent records pursuant to RCW requirement. CITY COUNCIL COMMITTEE RECOMMENDATION: n/a CITY MANAGER RECOMMENDATION: City Council approval APPROVED FOR INCLUSION IN COUNt^ ^ PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # FEDERAL WAY CITY COUNCIL Council Chambers - City Hall December 7, 1999 REGULAR MEETING - 7:00 p.m. DRAF;. MINUTES CALL MEETING TO ORDER Mayor Gintz called the regular meeting of the Federal Way City Council to order at the hour of 7:06 p.m. Councilmembers present: Mayor Ron Gintz, Deputy Mayor Michael Park, Councilmembers Jeanne Burbidge, Jack Dovey, Mary Gates, Linda Kochmar and Phil Watkins. City staff present: City Manager David Moseley, City Attorney Londi Lindell and City Clerk Chris Green. PLEDGE OF ALLEGIANCE Councilmember Kochmar led the flag salute. me SWEARING IN CEREbIONY Judge David Tracy/Oath of Office by Judge Charles Delaurenti Judge David Tracy was sworn into office by Renton District Court Judge Charles Delaurenti. Judge Tracy thanked Council and commended Sandra Wafter and Gina Hoffman on a outstanding job in preparing for the opening of the Federal Way Municipal Court. Sandra Wafter invited Council to tour the new facility which is currently 90% complete and will open in January 2000. PRESENTATIONS a. SPIRIT Awar~l/Month of December City Manager David Moselcy announced that Public Works Engineering Technician Kcvin Peterson received the SPIRIT Award for the month of December, and commended him for his outstanding performance as a city employee during the past eight years. b. Human Services Commissioner Introduction/Certificate Councilmember Dovey introduced and presented Donna Williams with a certificate of reappointment to serve as an alternate on the Human Services Commission, with a term expiring on January 31, 2002. Ms. Williams recently moved back into the city following a brief absence. City Manager/Introduction of l~¢w City_ Employees City Manager David Moseley announced three new employees: Nanette Bolli~r was recently hired as a police officer; she came to Federal Way after a successful 14-year career with the Honolulu Police Department. Kristopher Kru~y will serve as the city's newest public safety officer. David Coo_ver has been hired to fill the position of lead parks maintenance worker for Celebration Park; he has a 25-year background in parks maintenance. d. City Manager/Emerging Issues City Manager David Moseley stated there are no emerging issues to report this evening. V® CITIZEN COMME~ Michael Hellickson spoke on the public facility feasibility study listed on the Consent Agenda; he asked the Council to keep in mind the possibility of partnering with the Federal Way School District or the private sector to build such facility. Joann Piquette, representing the Federal Way Coalition of Performing Arts, spoke in support of establishing a performing arts center for the citizens of Federal Way. She urged the council to vote unanimously in favor of the study in an effort to bring future touring attractions to Federal Way. Lyn0a Jenkin~ spoke in opposition to the public facility feasibility study. She urged the council to address traffic problems and current projects, such as the Hylebos, rather than supporting a convention center. Barbara Reid spoke in praise of the quarterly "City Update" newsletter; she recommended that all citizens obtain and read the latest copy, in particular the commercial update which explains projects currently underway within the city. She commended the City Manager David Moseley and city staff who worked to complete the newsletter, which update was included with the Winter 2000 Parks, Recreation and Cultural Services Brochure. Glenn D, l. llmgr spoke to passing proposed legislation that would officially recognize Highway 99 as a historic highway, and distributed material for Council review. As requested, Mayor Gintz read into the record a letter from Ron Zaffino expressing his concerns regarding the level of police protection. Dini Duclo$, Chair of the Parks and Recreation Commission, expressed her gratitude to Mayor Gintz and Councilmember Dovey for all of the time and energy they have given to the City of Federal Way during their terms of office. City Council Rel~lar Meeting Minute~ December 7, 1999 - Page 3 CONSENT AGENDA Re eo Minutes/November 16. 1999 Regular Me, ting - Approved Voucher/Dec~.mber 7. 1999 - Approved Monthly Financial Report/Month of October 1~)9 - Approved Council Bill g234/1999-2000 Biennial Budget Ad_iustment/Enactment Ordinance Approved Ordinance #99-356 Council Bill g235/Sign Code Amendment/Enactment Ordinance Approved Ordinance 1t99-357 Council Bill g236/Elley-Ouadrant Tract 17 Annexation Acceptance/Enactment Ordinance- Approved Ordinance tt99-358 Natural Gas or Manufactured Gas Use Tax Interlocal Agreement - Approved Final Acceptance/Lake Killarney Ope_n Space Park Development - Approved Able/Spiffy Biffy Contract Amendment - Approved Economic D~v~lopment Executive 2000 Work Pl~,n - Approved Mid-Biennium Review of 1999-2000 Human Services Contracts - Approved 1999 Asphalt Overla_v Project Acceptance & Retainage Release - Approved SW 340a St & Hoyt Rd SW Intersection Improvement Project Final Acceptance & Retainage Release - Approved 2Q00 Street Sweeping S~rvices Contra~ Award - Approved Self-Propelled Asphalt Paver Bid Award - Approved Uniform Dry_ Cleaning Services Agreement Amendment - Approved Pl!,l>li¢ Facility_ Feasibility_ Study/Hotel-Motel Tax - Approved Emergency M~lical Services (EMS) Task Force - Approved Resolution/Early Redemption of Bonds Funded with Utility_ Tax/Maintenance & Ope_ration Allocation - Approved Resolution 1t99-306 Wireless Site Lease Agreement for Lakota Park - Approved CiPJ of Des Moines Interlocal Agreement/Access Services - Approved TQrQ Infield Pro 3020 Purchase/Celebration Park - Approved COUNCILMEMBER DOVEY MOVED APPROVAL OF CONSENT AGENDA AS PRESENTEY); SECOND BY DEPUTY MAYOR PARK. Mayor Gintz pulled Consent Item (m). Councilmember Gates pulled Consent Item (q). Councilmember Dovey pulled Consent Item (t). The motion to approve Consent Items (a), (b), (c), (d), (e), (f), (g), (h), (i), O), (k), (1), (n), (o), (p), (r), (s), (u), and (v) passed as follows: City Council Regular Meeting Minutes December 7, 1999 - Page 4 Burbidge yes Dovey yes Gates yes Gintz yes Kochmar yes Park yes Watldns yes Consent Item (m) - SW 340" St & Hoyt Rd SW Intersection Improvement Project Final Acceptance & Retainage Release. Mayor Gintz addressed this long coming traffic improvement; he noted the City of Federal Way partnered with Northeast Tacoma to cover the approximate $250,000.00 cost of improvements that benefits both Federal Way and Northeast Tacoma residents. MAYOR GINTZ MOVED APPROVAL OF CONSENT ITEM (m); SECOND BY COUNCILMEMBER DOVEY. The motion passed as follows: Burbidge yes Dovey yes Gates yes Gintz yes Kochmar yes Park yes Watkins yes Consent Item (q) - Public Facility Feasibility Study/Hotel-Motel Tax. Councilmember Gates spoke to the concerns regarding the funding of this study. She explained that revenues collected from the Hotel-Motel Tax can only be used for specific funding. She also commented the public facility feasibility study will determine the need for a public facility to provide positive tourism revenue, as well as accommodating events such as conventions, trade shows and graduation ceremonies. COUNCILMEMBER GATES MOVED APPROVAL OF CONSENT ITEM (q); SECOND BY DEPUTY MAYOR PARK. The motion passed as follows: Burbidge yes Dovey yes Gates yes Gintz yes Kochmar yes Park yes Watldns yes Consent Item (t) - Wireless Site Lease Agreement for Lakota Park. Councilmember Dovey rex:used himself from voting on Consent Item (0, as he is in the wireless business. COUNCH.34EMBER KOCHMAR MOVED APPROVAL OF CONSENT ITEM (t); SECOND BY COUNCILMEMBER WATKINS. The motion passed 6-0 as follows: City Council Regular Meeting Minutes December 7, 1999 - Page 5 Vile Burbidge yes Dovey recused Gates yes Gintz yes Kochmar yes Park yea Watkins yes INTRODUCTION ORDINANCES Council Bill #238/Sprint Spectrum Right-of-Way Franchise Rules Suspended/Approved Ordinance #99-359 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING SPRINT SPECTRUM, L.P., A DELAWARE LIMITED PARTNERSHIP, A NON-EXCLUSIVE FRANCHISE TO OCCUPY RIGHTS-OF-WAY OF THE CITY OF FEDERAL WAY, WASHINGTON, WITHIN THE SPECIFIED FRANCHISE AREA FOR THE PURPOSES OF INSTALLING, CONSTRUCTING, MAINTAINING, REPAIRING, AND RESTORING A FIBER OPTIC COMMUNICATION CABLE WITHIN AND THROUGH THE CITY OF FEDERAL WAY. COUNCH.MEMBER GATES MOVED TO SUSPEND COUNCIL RULES AND MOVE COUNCIL BILL//238 TO SECOND READING FOR ENACTMENT TONIGHT; SECOND BY COUNCILMEMBER KOCHMAR. The motion passed as follows: Burbidge yes Dovey yes Gates yes Gintz yes Kochmar yes Park yes Watldns yes Councllmember Dovey recused himself from voting on Council Bill #238/Sprint Spectrum Right- of-Way Franchise, as he is in the wireless business. COUNCILMEMBER GATES MOVED FINAL ADOPTION OF SPRINT SPECTRUM RIGHT-OF-WAY FRANCHISE ORDINANCE; SECOND BY COUNCH~MEMBER KOCHMAR. The motion to approve Council Bill ff238/Sprint Spectrum Right-of-Way Franchise/Ordinance No. 99-359 passed 6-0 as follows: Burbidge yes Dovey recused Gates yes Gintz yes Kochmar yes Park yes Watldns yes b. Council Bill #239/Criminal Code Amendment/Introduction Ordinance AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, REPEALING FEDERAL WAY CRIMINAL CODE SECTION 6-37 AND ADOPTING BY REFERENCE RCW 66.44.270 FURNISHING LIQUOR TO City Council Regular Meeting Minutes December 7, 1999 - Page 6 MINORS-POSSESSION, USE-PENALTIES-EXHIBITION OF EFFECTS-EXCEPTIONS; AMENDING FEDERAL WAY CRIMINAL CODE SECTION 6-86 - MANDATORY PENALTIES INVOLVED; AMENDING FEDERAL WAY CRIMINAL CODE SECTION 6-87 - MANDATORY PENALTIES INVOLVED. (AMENDS ORDINANCE NO. 91-89). COUNCILMEMBER DOVEY MOVED TO SECOND READING AT THE DECEMBER 21, 1999 COUNCIL MEETING; SECOND BY DEPUTY MAYOR PARK. Motion passed as follows: Burbidge yes Dovey yes Gates yes Gintz yes Kochmar yes Park yes Watldns yes c. Council Bill g240/Adult Uses Code Amendment/Introdt4¢tiott Ordinance AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AMENDING SECTION 22-763 OF THE FEDERAL WAY CITY CODE, "ADULT ENTERTAINMENT, ACTIVITY, RETAIL OR USE". COUNCH.blEMBER WATKINS MOVED TO SECOND READING AT THE DECEMBER 21, 1999 COUNCIL MEETING; SECOND BY DEPUTY MAYOR PARK. Motion passed as follows: Burbidge yes Dovey yes Gates yes Gintz yes Kochmar yes Park yes Watkins yes Council Bill #241/Natural Gas or Manufactured Gas Use Tax/Introduction Ordinance AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, IMPOSING A USE TAX ON THE PRIVILEGE OF USING NATURAL GAS OR MANUFACTURED GAS AS A CONSUMER AS AUTHORIZED BY RCW 82.14.230. COUNCILMEMBER KOCHMAR MOVED TO SECOND READING AT THE DECEMBER 21, 1999 COUNCIL MEETING; SECOND BY COUNCILMEMBER DOVEY. Motion passed as follows: Burbidge yes Dovey yes Gates yes Gintz yes Kochmar yes Park yes Watkins yes City Council Regular Meeting Minutes December 7, 1999 - Page 7 CITY COUNCIL REPORTS Councilmember Dovey announced the next meeting of the Parks/Recreation/Human Services/Public Safety Committee is scheduled for December 13, 1999, at 5:30 p.m. He also thanked Council for passing the budget adjustment, which included the Skate Board Park funding. Councilmember Watkins reported the last 1999 meeting of the Land UsedTransportaton Committee will be beld on December 6,1999, as the December 20, 1999 meeting has been canceled. The committee meeting schedule for next year will be set after the seating of the new Council in January. Councilmember Burbidge announced she will be attending the Suburban Cities Association in Kent on Wednesday, December 8, 1999, as well as attending the Regional Law and Justice Committee on Thursday, December 9, 1999. She further noted the Federal Way Chorale will be performing at St. Vincent's on Saturday and Sunday, December 11* -12t~. Councilmember Gates announced that the next meeting of the Finance/Economic Development/ Regional Affairs Committee is scheduled for December 15, 1999, at 12:00 noon. She also announced that on December 9, 1999, Sound Transit will be hosting the "Ride of the Century", which will run from Tacoma to Seattle beginning at 11:00 a.m. Sound Transit will begin regular service on this route in September 2000. Councilmember Kochmar updated Council on upcoming local events and activities. She also invited all Federal Way citizens to the public reception honoring Mayor Gintz and Councilmember Dovey on December 21, 1999, at 5:30 p.m., in Council Chambers, prior to the next regular Council meeting. Deputy Mayor Park announced he will be attending the next South County Mayors' meeting in Mayor Gintz's absence. He also announced the arrival on December 11, 1999, of eight Korean staff members who will be evaluating and learning how the city operates; he thanked city staff, especially Derek Matheson, for coordinating this visit. Mayor Gintz spoke of Federal Way becoming a great model for other cities to follow, as the city becomes a "melting pot" of growing ethnic populations. He strongly encouraged these growing populations to become ambassadors for others. IXe CITY MANAGER REPORT City Manager David Moseley was pleased to announce that Councilmember Gates was reappointed to the Sound Transit Board of Directors by King County Executive Ron Sims, where she has served for the past four years. He also announced the annual City Council Special Meeting with 30~ District Legislators to discuss the city's 2000 legislative agenda goals, to be held on Tuesday, December 14, 1999, at 7:30 a.m., in Council Chambers. He pointed out the South King County legislative breakfast, City Council Regular Meeting Minutes December 7, 1999 - Page 8 which includes Senator FAde and Representative Miloscia, will be held in Tukwila on Thursday, December 9, 1999. In addition, the City Manager addressed the visitation of city employees from Korea, in which the Planning, Parks, Public Works Department, and Lakehaven Utility District will hold a briefing for the visitors. Mr. Moseley also reminded residents of the public reception honoring Mayor Ron Gintz and Councilmember Jack Dovey on December 21, 1999, from 5:30 to 6:30 p.m., prior to the regular City Council meeting. The City Manager extended a personal thank you to the city's Public Safety Department, who assisted the City of Seattle and the Port of Seattle with the WTO Conference, including events such as the Presidential Dinner held at Boeing Field. Xe There being no further business to come before the Federal Way City Council, Mayor Gintz adjourned the regular meeting at the hour of 8:00 p.m. N. Christine Green, CMC City Clerk CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: VOUCHER CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: Expenditure Amt: Contingency Reqd: $ 376,422.81 $ 376,422.81 ATTACHMENTS: VOUCHER LIST SUMMARY/BACKGROUND: I, the undersigned, do hereby certify under penalty of perjury that the materials have been furnished, the services rendered, or the labor performed as described herein and that the claims are just and due obligations against the City of Federal Way, Washington, and that I am authorized to authenticate and certify to said claims. ............ ........................... .......... ........................................ .......................................................................................................... ................................. CITY COUNCIL COMMITTEE RECOMMENDATION: CITY MANAGER RE..COMMENDATIQN: Approve Council Committ~e. recommen~da.~on ..... ~~.~..~ ............... ~.:~...:...:.~.:..:.:.~...:-~.`...:...~..~..~...:...-~._~.~.....~.~.~.`...~..=....`.~.<..~..~. ..................... /_/.¥. 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CITY MANAGER RECOMMENDATION: Approve Council Committee Recommendation APPROVED FOR INCLUSION IN COUNCIL PACKET: Y~_-'~ ~'~,,/~'~ ~/~'~ff2~ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st READING ENACTMENT READ ORDINANCE # RESOLUTION # MEMORANDUM Date: November 23, 1999 To: Finance, Economic Development & Regional Affairs Committee From: Marie Mosley, Deputy Management Services Director Subject: ~____..~~N°vember' 1999, Monthly Financial Repo~ Action Requested: ~~;'"%-~--"--- Accept the Monthly Financial Report and forward to the December 21st Council meeting for approval. APPROVAL OF COMMITTEE REPORT Committee Chair: Mary Gates~'~Z .[(~ Committee Member: Jeanne Burbidge(¢/_ ~..~. Committee Member: Linda Kochmar-~ CITY IF ~ "A City for All of Us" 1999 Projected Revenues & Expenditures 40.00 35.00 30.00 25.00 20.00 15.00 10.00 5.00 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Revenues --e-- Expenditures Overview 1 Significant Events 1-2 General Government Revenues 2-5 Expenditures 6-7 Supplemental Schedules 8-13 Attachment A 14 November 1999 Monthly Financial Report OVERVIEW The Monthly Financial Report is intended to provide an overview of financial activity that has taken place in the reporting period. This report focuses mainly on activity incurred in the following operating funds: General, Street, Arterial Street, Utility Tax Projects, Solid Waste & Removal, Paths & Trail, Surface Water Management, Strategic Reserve, Airport Strategic Reserve, Debt Service, and Dumas Bay Centre. The Summary of Sources and Uses (Attachment A) captures financial activity through October for the years 1994 through 1999. SIGNIFICANT EVENTS Mid-biennium Budget Adjustment The City Council adopted the 1999/00 mid-biennium budget adjustment at the December 7th Council Meeting. The major new programs that were adopted for each of the following department include: Community Development - sign code compliance; associate planner; increase intern hours; comprehensive plan update; airport coalition dues; development specialist; Management Services - four vehicles replacement; four copiers replacement; Parks & Recreation - Wedgewood Park ongoing m&o; Celebration Park maintenance; Public Safety - Jail contract increase; Washington criminal justice training officer; convert temporary data entry to FTE's; traffic reconstruction program; critical incident/hostage Negotiation Equipment; school resource officer; Public Works - convert contracted capital project inspector; traffic counts to update transportation model; comprehensive plan update; and Municipal Court - formation of court. The following capital projects were also adopted: Skateboard Park; City of Federal Wag November 1999 Monthly Financial Report Hylebos; Alderbrook Play Equipment; BPA Trail Phase III; Public Safety and Muni-Court Facility; Downtown Revitalization; and 2Td Avenue South. Property Tax Ordinance In addition to adopting the mid- biennium budget adjustment, Council also approved the 2000 property tax ordinance. The tax property tax rate for the year 2000 is based on CPI-W (3.20%) and results in a total levy amount of $7,030,725 and produces a levy rate of $1.493. The new levy rate is less than the current rate of $1.53. Bulletproof Vest Program The Public Safety Department was recently awarded $8,000 from the Bureau of Justice Assistance for the partial funding of 51 bulletproof vests. The total costs of these vests is estimated at $21,385. GENERAL GOVERNMENTAL REVENUES General governmental revenue collections through November total $38,549,922, which is $5,174,529 or 15.5% above the year-to-date budget ($33,375,393). Of this amount, $1,761,578 is related to Utility taxes and REET that are reserved for the payment of debt service. When compared to 1998, revenues have increased by $2,131,909 or 5.9%. Attachment A provides a comparison of year-to-date revenues by major sources for 1999 with comparative figures for the past 5 years. REVENUE SUMMARY BY MAJOR REVENUE SOURCES Period Ending November 30, 1999 : YTD ~:tU~l~ YTD Actuals .... . '. ...... .' -'4dolX~J Year-to-Date % YTD Ovsrl(Under) A~ % o~ Current · ... '. Budlpt Acttmls Collected Budl[let YTD Budlilet YTD Budl~' Month P~0perty Tax 6,634 350 6~176,608 93.1 °/~ 6,176,608 0.0% 1,582,985 Sales Tax 8,605,426 8,808,183 102.4°/c 7,849,856 958,327 12.2% 880,787 Hotel/Motel Lodging Tax 65,000 40,753 62.7°A 42,863 (2,110) -4.9% 8,971 Criminal Justice Sales Tax 1,362,747 1,342,409 98.5% 1,243,019 99,300 8.0% 127,020 Gamblin9 Tax 509,600 1,305,112 256.1 °A 476,109 829,003 174.1% 115,860 Utility Tax 4,633,769 4,814,903 103.9°/c 4,233,955 ,580,948 13.7% 424,474 Real Estate Excise Tax 1,200,000 2,260,267 188.4°A 1,079,637 1,180,630 109.4°/~ 209,096 Franchise Fees 494,255 469,923 95.1 °A 494,255 (24,332) -4.9% Licenses & Permits 123,201 127,867 103.8°A 114,939 12,928 11.2% 5,307 Intergovernmental 4,576,430 4,660,907 101.8°/c 4,274,570 386,337 9.0% 208,005 CD Building Permits & Fees 853,193 1,218,890 142.9°~ 783,371 435,519 55.6% 87,017 CD Pass Thru Fees 8,5,833 na 85,833 na 9,990 PW Permits & Fees 223,573 199,179 89.1 °/c 201,734 (2,55,5) -1.3% 18,508 PW Pass Thru Fees 59,492 na 59,492 na 6,168 SWM Fees 3,120,302 3,465,534 111.1°/; 3,465,534 0.0% 828,141 Refuse Fees 148,524 135,770 91.4°/c 136,147 (377) -0.3% 12,019 Admin Fees 168,478 154,440 91.7°/; 154,440 0.0°A (32,3621 Fines&Forfeits 714,000 775,490 108.6°/; 661,307 114,183 17.3~ 64,895 Recreation Fees 551,343 543,773 98.6°,~ 515,704 28,069 5.4°/c 24,586 Knutzen Theatre Operations 59,030 42,790 72.8°/; 54,111 (11,321 ) -20.9°/; 13,682 Dumas Bay Centre Operations 429,609 467,777 108.9°/, 356,717 111,060 31.1°/; 59,104 Public Safety 138,432 283,975 20§.1 o,~ 130,037 153,939 118.4°/, 23, Interest Earnings 1,040,139 968,758 93.1 o/, 789,190 179,567 22.8°/~ 110,573 Miscellaneous Revenue 139,765 141,289 101.1°/, 141,289 0.09 40,285 Subtotal Operations 35,791A66 38,549,922 107.7°/, 33,375,393 5,174,529 15.§°/, 4,828,299 Interfund Transfers 6,019,289 5,309,229 88.2% 5,309,229 0.0°/; 119,792 Other Financing Sources 1,123,307 247,142 22.0°/, 247,142 0.0~/; 55,521 Total Revenues 42,933,762 44,106,293 102.7% 38,931,764 5,174,529 13.3°/, 5,003,612 i* Shows actuals as % of year-to-date budget. For example, 50% means actual revenueswere half of what was budgeted for that period. City of Federal Way November 1999 Monthly Financial Report $40,000,000 $35,000,000 $30,000,000 $25,000,000 $20,000,000 $15,000,000 $10,000,000 $.5,000,000 $- COMPARISON OF 1999 OPERATING REVENUES - BUDGET TO ACTUAL Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec T0tai 19~ eUdget~l Revenues $38,549,922 Property tax Property tax revenues collected through November total $6,176,608. Actual taxes received in the current month total $1,582,985. Sales Tax Sales tax received through November of $8,808,183 is $958,327 or 12.2% above the year-to-date budget ($7,849,856). Compared to 1998 year- to-date, sales tax increased $826,031 or 10.3%. Sales tax received in the month of November total $880,787 that is $166,017 or 23.2% above the adopted budget estimate. Compared to November 1998, sales tax increased $141,461 or 19.1%. Retail sales continue to remain the largest source, accounting for 63.8% of all sales tax collections. Year-to-date retail sales tax collections are up $535,275 or 10.5% over 1998, attributable to an overall increase in retail activity. Year-to-date construction and contracting activity, which accounts for 10.4% of sales tax collections, is up $328,794 or 56.2% compared to 1998 activity. One construction company is responsible for over 50% of this increase. They are one of the top 10 sales tax revenue contributors over the last 12 months. This increase is further reflected in the City's building permit trends. Manufacturing activity through the end of November has generated $243,150 in revenues. This is down $150,724 when compared to 1998. This is due to a major manufacturing company reporting sales tax on a quarterly basis for part of 1998 versus monthly in 1999. They also have recently moved out of the state, but they continue to have sales throughout the state. Therefore we will still be receiving sales tax from them, but in much smaller monthly remittances. Since their move in April, we have been receiving only a few hundred dollars each month. We expect this to continue for the remainder of the year. Transp/Comm/Utility sales taxes collected total $365,059, which is an increase over 1998 of $32,091 or 9.6%. This is due to an overall increase in cellular communication activity, which is also reflected in the increase in cellular utility tax revenues. COMPARISON OF SALES TAX COLLECTIONS B Y SIC CODE GROUP YTD Through November Component 1997 1998 1999 Change from 1998 Group Actual Actual Actual $ Change % Chan~-e $ 5,082.881 $ 5.618155 $ Retail Trade Services Construction/Contract Wholesaling Transp/Comm/Utility Manufacturing Government Fin/Ins/Real Estate Other Total Taxable Sales 4.900.510 535 275 10.5% 655 435 778.463 830,450 51.987 6.7% 508 673 585.403 914 197 328.794 56,2°/ 373 241 471.067 517 298 46.231 9.8o/ 295.869 332.969 365 959 32.091 9.6% 288.380 393 875 243,150 (150,724) -38.3% 97.676 128 155 126.032 (123) -0.1% 82.162 104.820 107 395 2 575 2.5% 73 370 104.521 84.446 (20,075) -19.2°/, 7,276,316 $ 7,982,152 $ 8,808,183 $ 826,030 10.3°/, 855,919,507-$ 939,076,762 $ 1,036,266,785 $ 97,180,022' 10.3°/, City of Federal Way November 1999 Monthly Financial Report IS_ea~a_cMal! .... 934~7!5_ 925,~5~. 908,63~. (!7~017). -1.8%! SlS312thto__S 316th Block _ .. 78,952 . . 82~65!... 84~09~ ~44! __ !.~%! l~_avilion Center 128,165 120,515 110,812 (9,703) -8.1%! li4~te~saM(~t~-I~ ...... 40,07-,5- 49,794- 39,366- I The City's largest retail center, South 348th retail center, which generates about 17% of the City's sales tax has experienced a growth of $171,520 or 13.0% compared to 1998, due to increased activity for all retail establishments in the center. Over the last 12 months, a major retailer in this center has remitted the largest amount of sales tax revenue in our City. SeaTac Mall is showing a decrease of $17,017 when compared to 1998 activity. A major retailer located in the mall, is number 3 on the list of the top 25 sales tax revenue generated over the last 12 months. Unfortunately that is not enough to offset the decline of retail activity at SeaTac Mall. When compared to 1998, only retail eating and drinking establishments and the theater have increased activity. month, we received $209,096 or 123.8% above the monthly estimate ($93,419). Hotel/Motel Lodging Tax Hotel/Motel lodging tax collected through November totals $40,753, which represents activity through September. This is $2,110 or 4.9% below budget, but is anticipated to increase once the newly constructed hotels in the area are active (ie: Extended Stay, Marriott). Utility Tax Utility tax received through November total $4,814,903, which is $580,948 or 13.7% above the monthly budget estimate. Compared to 1998, utility tax receipts have increased $637,729 or 15.3%. Cellular taxes exceed the budgetary estimates by $207,529 or 58.2%, which is consistent with prior months in 1999. This is due to an ".' ..... ' , ' ' .' '. '. 'i':, , ' ".i....:.i~'" :"fmr/- IN~ ' . ..'.. '." :' '.'..".' . · " ' II ~ I ' I ' I IPJlI iill ,:,:.~'.,,.,:.....;: :.. ~.;~] ::":,:: ..'~/ ...... { ] 7'.. .. , , - ...... · .arum '""'I'" Ac~'.. ':' "" ~ a~' i A~ r s~ ~ sv~ danua~ $ 146,325 $ 163,211 $ 56,816 $ 289,269 S 232.4~ 4~.1% 'Feb~a~ ' ~.719 ' 119,717 - 60.317 65.939 ' 5.622 ' 9.3~ darch 101.508 82.116 110.335 80.862 (29,473) -26.7~/~ ~)fil 132.678 166.282 104.765 ' 203'522 i 98.757 ' 94.3% ~lay 186.187 189.860 104.661 169.610 64.949 62.1% June 108.060 270 672 118.511 162.569 44.058 37.2% July 120.432 295.736 125.954 278.955 153.001 121.5% August 231.911 324.962 107.066 194.853 ' 87.787 82.0% ~eotember 181.490 137.949 105.825 326.168 220.343 208 2% :)ctober 151.333 204.439 91.969 279.424 187.455 ' 203.8% qovember 216.~81 - 143~.877 -- 93.419 209.096 115.677 123.8°~ ::)ecember 188.999 132.448 120.363 ' 0.0~/ EsL REValue $ 342,739,440 $ 413,611,516 $ 240,000,000 $ 452,063,416 S 236,126,036 na Real Estate Excise Tax For the year-to-date comparison, real estate excise tax continues to exceed prior year's collections. Through November, revenues total $2,260,267, which is $I,180,630 above budgetary estimates ($1,079,637). For the current increase in the number of cellular communication companies in our area, as well as an overall increase in cellular activity. State S/tared Revenue State shared revenues collected total $6,003,318 and are exceeding budgetary estimates by $485,729 or 8.8%. Included in this number is criminal justice sales tax of $1,342,410 which is also exceeding budget b..' $99,391 or 8.0%. Criminal justice-high crime has collected $173,087 through September. This revenue is based on the Cities 1997 crime rate and determines distribution amounts for July and October 1998 and January and April 1999. We are not budgeted to receive any high crime revenue in 1999, based on the 1998 crime rate statistics. We have received a total of $16,506 from the state to assist with the additional costs of implementing and enforcing the new DUI legislation. The DUI assistance is funded through June, 2001. The statewide distribution of $120,000 will be made to cities quarterly and is based on population. Currently the quarterly allocation to Federal Way is $2,774 and is subject to change depending on the City's population when compared to the total incorporated population. The next distribution was expected to occur in October, but will not occur due to an error in calculating the July distributio' amount of $5,598. Apparently the erro, resulted in twice the normal quarterly amount being distributed to both cities and counties. As a result, there will not be a DUI distribution in October. This distribution will recommence in January, 2000 and thereafter through the biennium. Fines & Forfeitures Year-to-date Fines and Forfeitures are exceeding budgetary projections by $114,183 or 17.3%. Revenues are exceeding prior year's activity by $17,705 or 2.3% through November. Parking Infractions through November are exceeding budget by $30,565 or 154.7%. False Alarms collected total $28,426, which is $19,941 or 235.0% above budget estimates. Criminal costs collected year-to-date total $92,844. which is $60,163 or 184.1% above budget estimates. 4 Cit~ of Federal Way November 1999 Monthly Financial Report ' ': i' ' ' ":u ,' 1997-1999 danua~ 125,150 431,810 402 852 402,852 494,610 $ 91,758 22.8% Febma~ 4,121 118,633 460,440 431 111 431,111 479,716 48,605 11.3% March 35,730 139,684 429,076 402 257 402,257 469,241 66,984 16.7% Ap~i .... 96,6~9 - - ~ 404907 ~ 415,919 - 421 480 42~ 480 - 480,522 - 59,043 ' 14.0% May 95,723 431 710 401,428 420 867 420 867 463,233 42,366 10.1% June 75,865 320 663 373,909 395 979 395 979 415,001 19,022 July 83,369 294 086 348,201 347 329 347 329 389,429 42,101 August 76,681 314 176 318,905 332 780 332 780 407,973 75,194 September - ' 85,~62 ' 310 675 ~22,551 ~ 337 196 ~ 337 196 355,822 ~ 18:626 Octo~r 76,107 326 801 348,206 361 403 361 403 434,881 73,479 No~ember ' ' 89,608 ' 365 280 ' 326,729 "' 37~ 970 ~ 380 702 ' 424,474 43,772 December ' 9~,283 ' 401,119 ' 351,629 ' 400 546 ~ T.I ~ 810,347 i $ 3,552,8~5 . $ 4,528,803 . $ 4,633,769 $ 4,233,955 Building Permits & Plan Check Fees Building permit revenues were up $435,519 or 55.6% when compared to year-to-date budget ($783,371). This does not include pass through revenues of $85,833 for expedited and environmental review. Revenues collected for expedited review are currently not included in the budget. Expenditures related to the expedited services also are not included in the budget. Building permits, which includes mechanical, plumbing and clear/grade permits, total $604,799 through the end of November. This is an increase of $170,271 or 39.2% over the adopted budget ($434,528). Activity for the month of November total $38,018, which is over the adopted budget by $4,917 or 14.9%. Plan check fees collected through November total $373,558, which is $176,098 or 89.2% above the adopted budget ($197,460). For the month of November, plan check fees are above budget ($16,968) by $7,887 or 46.5%. ROW Permits and Fees Overall Public Works permits and fees collected through November total $199,179, which is $2,555 below the adopted budget. This does not include pass through revenues of $59,492 for expedited review. Year-to-date activity is below the prior year by $33,806 or 17.0%. Recreation Fees are exceeding budgetary expectations by $28,068 or 5.4%. When compared to the prior year's activity, fees collected through November have increased by $141,819 or 35.3%. Invoices for related recreation program expenditures incurred during the summer months are now being received and processed. Gambling Tax Gambling tax collections are rap $829,003 or 174.1% over the budget}iry estimate ($476,109). The increase is $954,308 when compared to 1998 largely due to increased activity at one major card room establishment and the increase in card room rates from I i% in 1998 to 20% in 1999. Police Services Revenue collected through November total $283,975. This amount includes Traffic School revenues of $53,025, Explorer program donations of $2,400, a donation from Target of $500 to automate the pawn program, contributions from the Washington Traffic Safety Commission of $2,983, interest earnings of $5,170 and Police Security services of $162,429. Also included is $37,398 of state seizure revenues, which are designated for that specific program. The remaining balance of $20,070 is made up of miscellaneous revenues such as weapons permits, copies and fingerprinting. $124,287 in grant 4.8% 12.i% 22.6% 5.5% 20.3% 11.5% n/a S 4,814,803 , $ 580,947 13.7% revenues was received through third quarter, but are included in other financing sources. Traffic School, Explorer program and state seizure are currently not budgeted revenues. Other Financing Sources/lnterfund Transfers of $5,556,371 consist mainly of interfund transfers in the amount of $5,309,229. Also included are Public Safety grant revenues of $124,287 and Solid Waste of $41,045, a $75,000 contribution to the City's overlay project from the City of Tacoma, $ 1,000 from Weyerhaeuser for Emergency Preparedness, $1,000 each from Capital One and Weyerhaueser for the Martin Luther King event and $3,810 of contributions to the many Human Services programs (the majority of which are employee contributions). City o_f Federal Way November 1999 Monthly Financial Report COMPARISON OF 1999 OPERATING EXPENDITURES - BUDGET TO ACTUAL $35,000,000 $30,0(X),000 $25,000,000 $20,000,000 $15,000,000 $10,0oo,0oo 11.371 Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec · rotal '1999 .udget~:l Expenditures $33,295,812 EXPENDITURE SUMMARY BY DEPARTMENT Period Ending November 30, 1999 ';' ::' ' "'" .... 'AdOpted Year-to-Date % . YTD (Over)/under, A~%':of .' Current ~/*!:.'~:~!'iii"::':..:.":":'*':":;.''" . '"'.;' :: : "'BUd~mt "' ActUal~ Expended Budget Y'rD'eud~let YTDB~ MonthActuale City Council 219,841 180,027 81.9% 211,156 31,129 14.7% 6,958 City Manager 587,110 525,596 89.5% 544,527 18,931 3.5% 39,150 Court Contract 499,472 338,945 67.9% 420,350 81,405 19.4% 33,801 Municipal Court 300,000 80,927 27.0% 80,927 0.0% 21,838 Management Services 1,953,969 1,493,265 76.4% 1,545,665 55,400 3.6% 100,610 Civil/Criminal Legal Services 1,253,692 1,143,838 91.2% 1,143,763 (75) 0.0% 135,093 Community Development 3,048,376 2,580,329 84.6% 2,785,855 205,526 7.4% 188,900 Public Safety 12,049,356 10,877,663 90.3% 10,829,681 (47,982) -0.4% 911,641 Jail Services 875,000 1,169,765 133.7% 718,572 (451,193) -62.8% 3,324 Parks & Recreation 3,065,364 2,904,175 94.7% 2,818,345 (85,830) -3.0% 185,402 Dumas Bay Centre Operations 467,436 450,155 96.3% 432,154 (18,001 ) -4.2% 49,323 Knutzen Theatre Operations 159,030 111,793 70.3% 145,778 33,985 23.3% 13,242 Public Works Operations 3,444,273 2,771,941 80.5°/. 3,139,762 367,821 11.7% 236,304 PW Asphalt Oveday Program 2,018,311 1,759,401 87.2°/, 1,759,401 0.0% 257,721 Solid Waste & Recycling 299,727 215,571 71.9°/" 263,723 48,152 18.3% 18,785 Snow & Ice Removal 55,076 20,238 36.7°A 48,460 28,222 58.2% 1,716 Hotel/Motel Lodging Tax 40,000 101 0.3%! 101 0.0% 101 Surface Water Management 1,749,884 1,365,451 78.0% 1,582,324 216,873 13.7% 105,319 Debt Service 5,293,482 5,306,731 100.3% 5,306,731 0.0% 3,039,487 Subtotal Operations 37,379,400 33,295,912 89.1% 33,780,275 484,363 1.4°/" 5,348,715 Interfund Transfers 10,266,219 9,203,481 89.6% 9,203,481 0.0% 2,701,702 Other Financing Uses 660,479 57,955 8.8% 57,955 0.0% Total Expenditures 48,306,098 42,557,348 88.1% 43,041,711 484,363 1.1% 8,050,417 * Shows actuals as % of year-to-date budget. For example, 50% means actual expenditures were half of what was budgeted for that pedod. GENERAL GOVERNMENTAL EXPENDITURES General governmental expenditures through November total $33,295,912 or 89.1% of the annual operating budget ($37,379,400). Operating expenditures are below the year-to-date budget ($33,780,275), by $484,363 or 1.4%. When compared to 1998, expenditures are up $6,381,116 or 23.7%. Court Contract expenditures paid through November total $338,945, which is below the year-to-date budget ($420,350) by $81,405 or 19.4%. The budget is based on historical trends for the last seven years of the contract. Community Development Operations has expended $2,580,329 or 84.6% of its annual appropriation ($3,048,376). Through November, they are below their budget by $205,525 or 7.4% of th., City of Federal }FaF November 1999 Monthly Financial Report year-to-date budget ($2,785,855). Other services and charges expended total $559,360, or 83.3% of the total budget $67 !,938. Parks Operations expenditures total $2,904,175, which is $85,830 or 3.0% above the year-to-date budget estimate ($2,818,435). This is 94.7% of its annual appropriation. Services and charges total $662,831, which is 88.5% of the annual budget ($749,077). This increase over last month reflects the processing of several invoices for contracted services incurred during the summer, such as athletics umpires and camps. Also, services and charges, which include utilities, will increase in the winter months due to the extended use of field lights. Through November, temporary help totals $259,850 or 109.8% of its annual budget ($236,768). The activity in temporary and seasonal help has decreased substantially in November since the busy summer season is over. Dumas Bay Centre operating expenditures total $450,155, which is $18,000 or 4.2% above the year-to-date estimate of $432,155. Operating revenues through the current month total $467,777, which is $111,059 above the budget estimate ($356,717). The Dumas Bay Centre has recovered 103.9% of all operating costs as of the end of November. The Knutzen Family Theatre has operating expenditures through November of$111,793 or 70.3% of the adopted budget ($159,030). The current expenditure saving is $33,985 or 23.3% of the year-to-date budget ($145,778). This year-to-date budget is a straight-line allocation of the annual budget, due to the fact that we do not have a history with which to base future fluctuations in spending. Operating revenues collected total $42,790, which is 72.5% of the annual budget ($59,030). This is below the year-to- date budget, which is also a straight- line allocation, by $11,321 or 20.9%. Public Works Operations are below the November budget estimate ($3,139,762)'b~;' $367,821 or 11.7%, and has expended $2,771,941 or 80.5% of its annual appropriation ($3,444,273). This is partially due to the delay of invoices for intergovernmental expenditures, such as King County traffic maintenance and WSDOT state highway maintenance. Both of the above vendors are included in inter-governmental expenditures, which through November total $269,510 or 65.3% of the annual budget ($413,036). Savings can also be found in salaries and benefits, which are only 79.8% expended. The majority of this savings can be attributed to several vacancies within the new Streets Maintenance crew. September was the first month that they had a full crew. SWM Operations are below projections by $216,872 or 13.7% of the November estimate of $ 1,582,323. Intergovern- mental expenditures total $70,349, which is only 65.4% of the total budget ($107,500). This is also due to the delay of invoices from King County for water utility billing, and a portion of the WSDOT charges for state highway maintenance. Solid Waste & Recycling Division is below their budgeted expenditures by $48,152 or 18.3%. Through November, other services and charges, which make up almost 58% of the total budget, is only 53.1% expended. In comparison to the same time last year, when other services and charges were expended at about 80.0%. This is due to savings in the following three programs. (1) A large portion of the costs for outside Counsel used for the City's due diligence review prior to the sale of Federal Way Disposal were paid for by the purchaser, saving approximately $15,000. (2) Business recycling outreach expenditures in the current year are lower than originally budgeted. In-house staff now performs this function rather than a higher-cost consultant, reducing this grant-funded expenditure by roughly $5,000. (3) The multi-family recycling program has had little additional interest from area complexes, saving an estimated $15,000 in grant funded implement- ation costs originally budgeted for 1999. Police Services have expended $10,877,663 through November, which is $47,982 or .4% above the budgetary estimate of $10,829,681. Salaries & benefits, which are 67% of their total budget (excluding temporary help, overtime Police security, regular overtime & termination pay), totaled $7,666,567. This is 88.3% of the annual budget ($8,681,503). The departmental excess over the estimated budget is partially due to overtime police security expenditures that have not yet been included in the budget. Overtime Police security totals $73,668 through November, but is offset by revenues collected for the services provided. Jail Service is above November budget estimates ($718,572) by $451,193 or 62.8%. The total expended of $1,169,765 does not include payments for September, October and November services. Other Financing Uses/lnterfund Transfers total $9,261,436 or 84.8% of the annual budget ($10,926,698). The majority of which is made up of interfund operating transfers ($9,203,481). The remaining $57,955 is made up of CM Contingency funds allocated for reconfiguration of City Hall, adult entertainment legal defense and a portion ofreconfiguration charges allocated citywide. City o£ Federal }Fay November 1999 Monthly Financial Report MAJOR FINANCING SOURCES SALES TAX REVENUES November 1997 through November 1999 $1.050.000 Holiday Season $950,000 ....... ~ff'// ~'"'"'~ $550,000 56 .... ~~,~6~~~, ,, LOCAL RETAIL SALES TAX REVENUES 1997 - 1999 1997 '1998 1999 I~ 1999 Budget MOnth Actual Acaml Budget * Actual i $ Variance [ % Variance January :ebruary larch ~,p~l May June July a, ugust September October November December 623,386 $ 638,862 $ 667,688 $ 711,432 $ 43,744 6.6% 902,478 949,276 941,601 1,013,425 71,824 7.6% 640,967 714,640 667,002 717,005 50,003 7.5% 582,547 575,596 601,682 633,460 31,778 53'~ 660,733 655,396 706,570 783,051 76,481 10.8~ 669,058 769,461 '686,513 ' 772,812 ' 86,299 ~ 12.6°A 678,567 645,475 656,290 727,701 71,411 10.9~i 694,702. 682,263 704,382' 855,198' ~150,816 - 21.4~; 735,617 ' 850,295 ' 788,583 ' 896,291 ' 107,708 ' 13 7°/, 657,100' 761,561 714,775 817,021 102,246' 143°3 687,585 739,326 ' 714,770 880,787 i66,0i7 ' 232o3 793.528 800,018 755,570 00'~ Total $ 8,326,28g $ 8,782,170 $ 8,605,426 $ 8,808,183~$ 958,3271 12.Z'/ Taxable Sales, $ 979,~61,007 $ 1,033,196,412 $ 1,012,403,059 i $ 1,036,256,807 ! $ 112 744 336 ! 12.2/,, Ci_tv of Federal gFay November 1999 Monthlv Financial Report COMPARISON OF SALES TAX COLLEC130NS BY SIC CODE GROUP For the Month of November Component 1993 1994 1995 1996 1997 1999 1999 Change from 1998 oroup Acml Acmat Ac=,l , At.at i Acml Acma~ ! Ac~ --'S'~-n~e F% RetailTrade $ 395.106 $ 406,123 $ 387,950 $ 421,483 $ 451,697 $ 436,836 $ 518,968 $ 82,132 188% Services 48,030 52,828 54,243 62,039 69,296 70,234 78,298 8,065 11.5°A Construction/Contract 56,828 45,590 65,626 55,075 57.111 82,176 148,716 66,540 81 Who~esalir~g ' ' 44,3'26' 3~,794 ' 54,~3~ - 361902 43,408' 48,541' 631586 - 15,045 ' Transp/Comm/Utili~ty ' 32,202-' 32~566~ .... 21,63~) ' 30,970 ' - 29~31~7- ' 31,656 * ' 27,391' (41265)' -13.5oA Manufacturing ' ' 27190~' -4~i~' ' 45,377' 37,~29- i01913' 33,267 i 1ii~23' (22,145i' -666°/( G0vemment ~.9~8 ' ' 8,191 - 10,453 - 7,234- 8,724 ' 13.989 14,785 ' 797 ~ fin/in~eal';Stat~ 7,54-7' 8~:~ .... ~14~9 7,~59' ~ 9~89~- ~2.i22 ' 10,235 (i~887)- -i56°A ,ther ' 7.483' 3,486' - 8,151 - 8,160- 7,300' 10,506- 7,685. (2,821) -269`'/( Total ....... ~--62~-,~4~$ -63~,254 $ 6-54.0~0---{- ~96;~$ 687,$85-$ 739,3265 880;7~-~ ~41;461 I---Taxable Sales $ 73,804,941 $ 74,883,412 $ 76,947,088i S 78,441,336: $ 80,892,~ig--{ 86,87~,~33~' $ 103:6'~1,§~-$ i~;642,a~'~ 19.i~ SALES TAX ACTIVITY BY SIC CODE YTD through November 1999 Wholesaling 5.9% Manufacturing Government Fin/Ins/Real 1.5% Estate 2.8% /// 1.2% / Other Trans/Com/Util ~ Retail Trade 63.6% Constr/Contract 10.4% - ~ - Services 9.4% ~ I Actual Actual . Actual ! Actual STATE SHARED REVENUES Motor Vehicle Excise Tax $ I 279.960 $ 1314.849 $ I 048.038 $ 912.409 $ Camper Exc~se Tax 21 312 21.426 21.200 21.201 Jquor Profits Tax 367 11 ' 305.281 31290: 303.170 .~quor Excise Tax 241 770 226.801 219.089 223.667 ~'rim Just Low-Poo/DCD 270.905 358 394 364 196 181 095 ~r~m Just Hgh Crime 227.766 184 917 196.846 208.609 =quahzabor 821.784 604 974 408.840 386.185 .ocat Crim Just 963.044 996.649 I 037.765 1.148.905 :uel Tax 1 580.007 1.547 035 ' 1 535.369 ' 1 579.915 ¢eh L~C Fees 578 549 559.402 56' .277 589.917 601.522 600.522 3UI - Cities ..... 963,678 $ 969,528 $ 1059,402 $ 89,874 9 22046 21.725 23.048 1.323 6 1 404.650 329.154 318.219 ( 1 O, 935) -3 229.987 232 066 242.698 10632 4 60/( 127.827 104.874 142.293 37419 35 7~A 227.674 173 087 173.087 n~ 384.423 396.341 433.576 37.235 9 4°A 1.235.388 1.243 019 1342.410 99 391 · 563.782 1.620 360 ~ 585.655 ~34 705) -2.1 666.424 65902 11 16.506 - 16.506 n~ City of Federal Wa), November 1999 Monthly Financial Report []Veh Lic Fees · Fuel Tax ClCriminal Justice Equalization · Liquor [] MVET $7,000,000 $6,000,000 $5,000,000 $4,000,000 $3,000,000 $2,000,000 $1,000,000 $- STATE-SHARED REVENUES 1994-1999 UTIDTY TAXES Year. to-date (~ru November) 1996 19~? 19~ i 1999 1999 Budget Actual . Actual , Actual !"~'k'~--['"~-~ ] ......... ~,'~----~"~,~-:e '{ Electric 301,774 1,226,038 1,682,486 1,800,058 1,645,320 1,783,338 $ 138,018 8.4% Gas 85,333 - 338,459 * 489,154 ' 519,109 - 472,303 ' 546,909 * 74,607 - 15.8% Garbage 59,396 219,832 273,627 315,276 288,389 299,953 11,564 Cable ' 42,418. 323,79~ ' 4061807 ' 465,876 ' 425,356 * 4681009 - 429~53 - 100 Pho~e - i62,694 ~ 653,332 ' 840,832 - 9551375 ' 891,506 ' 976,274 ' 84,769 9.5%1 ~torm Drainage ' :~ 117,480 ' 97,022 - 1~91259 ' 144,162 ' 1671718 ' 231556 ' 16.3%l ~eiluiar 65,505- 265,08i - 376,96~ - -387,416 - 3561362 - ,5631891 - _ 207,529 - Page~s ' - 1,944 - 7,754- io,285` - 1i,4Oo - 101559 - 8,8il - (11747)- -1615% i GAMBLING TAX REVENUE 1997- 1999 1994 1995 1996 1997 1998 Budget Actual $ Variance ~% Variance January $20,749 $34,518 $24,558 $31,616 $28,182 $51,135 $90,611 $39,476 77.2% February 20,749 ' 34,518 24,558 34,403 21,305 54,874 98,117 43,243 78.8% March ' 20,749 34,518 24,558 30,346 23,182 65,483' 104,183 38,700 ' 59.1% April 30,511 28,811 29,665 36,041 29,498 64,427 130,536 66,109 102.6% May ' 30,511 ' 28,811 29,665 31,106 I 19,025 56,745' 150,818 94,073 ' 165.8% June ' 30,511 ' 28,811 29,665 29,421 20,121 26,947' 145,174 118,227 438.7% July 32,383 ' 25,653 17,721 26,096 34,691 33,606 ' 137,222 103,616 308.3% August 32,383 ' 25,653 ' 17,721 17,016 36,336 35,687 ~10.081 74,394 - 208.5% September - 32,383 ' ' 25,653 - 17,721 18,454 36,915 27,174' 111,146 83,972 ' 309.0% October 33,509 18,681 ' 28,715 23,907 50,005 32,313' ' 113,612 81,299" 251.6% November ' 33,509 ' 18,681 28,715 20,591 51,544 27,718 113,612 85,894 ' 309.9% December 33,509 18,681 28,715 19,766 48,147 33,491 0.0% Total': $351,453 $322,989 $301,977 $318,763 $398,950 $509,600 $1,305,112 $829,003 I 174.1% I0 City of Federal Way November 1999 Monthly Financial Report FINES & FORFEITURES By MOnth Budget ! $569,871 : $899,488 $613,226 $639,830 $680,000 $714,000 i ! 19~4 1995 1996 t997 1998 1999 Change from Adopted January $35,198 $58,898 $50,642 $36,755 $60,696 $50,540 $64,790 $14,251 28.2% February ..... 49,44~- 33,042-' 561197' 381609. 6~,000' ~ 54,5i2- 68,~87' 13,6~4* 25.1% M_arch ....... 44,493~ 38,296. _ 47,2~05.' 46,673. 84,432. 59,~851. _ 87,418_ 27,567_ 46.1% Apdl .... 56,501. 54,415 51,752 51,192 57,881 63,806 86,409 22,603 35.4% May 51,202_ 49,~641 54,538~ 52,978; - 73,670- 62,101- ' 61,806' -295' 45%] ~June 57,984 56,220 46,811 50,903 65,060' 63,881- 75,375' 11,494 18.0% July 41 ~965 69,336 48,681 53,016 81,666 61,299 Co6,411 5,112 83°A iAugust _ 65,794 54,319_ 63,650. 65,748. 63,201 71,691 _ 75,755_ 4,064 _ 5 7 °A !September 48,268 53,235 35,218 56,801 72,363 58,952 64,884 5,932 101°A '°Ctob', - - 5°:4~°' 50:b22' - ' 4;:~s6' 56,37~' 74:~15' 5",5i8' ~9,~6~' 43' 01o~ 3ecember 44,828 40,104 30,269 67,590 33,327 52,693 Total $692,198 $607,932 $560,063 $622,452 $791,112 $714,000 $775,490 $t14,183 17.3% '/. Change 2.7% -7.9% 11.1% 27.1% -9.7% · included in Firtea & Forfeitures are remiffances from Distdct Court for "Shared Court Coats" and "Court Record Services" FINES AND FORFEITURES YTD Through November $8oo, ooo $700,000 s6oo, ooo. - ~$547~370 .............. ~2~,784- - ~ $$00,0G0 $400,000 $300,OOO $200,000 $100,OOO $0 1994 1995 1996 1997 1998 1999 1994 1995 1996 1997 1998 Civil Penalties Traffic & Non-Parking Perking Infraflona DUI & Other Misd Criminal Traffic Misd False AJarms Toad 3,897 2,380 2,868 1,955 5,997 4,593 3,846 4,735 389,483 413,054' 352,813' 360,447 507,220 490,294 453,551' 436,551 8,516 9,354 18,758 21,592 29,451 17,762 19,753 50,318 60,411 61,178 56,784 67,474 82,167 78,574 72,784 100,899 25,967 25,100 20,661 28,713 43,455 36,390 32,291 53,799 19,518 15,085 20,875 26,508 61,827 31,519 32,681 92,844 3,100 8,285 17,074 5,915 4,875 9,952 8,485 28,426 36,478 33,392 37,138 42,257 22,791 44,915 37,914 7,918 889 (17,000) 30,565 28,115 21,508 60,162 19,941 (29,996) 23.1oA -3.7oA 154.7oA 38.6oA 66.6o/~ 184.1o/I 235.0a/~ _79.1°/t Il City of Federal Way November 1999 Monthly Financial Report January $ 33,708 $ 36,051 $ 48,383 $ 26,306 $ 59,934 $ 54,814 $ 53,165 $ 77,561 $ 24,396 45.9'~ ~ ....... 61,117_ __ _5~.!~296_ . 30,950.. 48L297 ~t791.__ 45, S~9._ 77:89~. 144,848_ 66,951_ . 85.~ May 61,353 53,636 65,038 50,280 52,379 60,598 75,731 161,106 85,375 112.75' .~e .... 56,643' 39,732- 69,015 - 65,'21~ ' 57,030 - 1051~73 87,46~ ' 165,674- ~8,2i3 ' 894°/ July 50,760 36,428 60,20~ 64,655 50,009 143,030 78,077 115,236 37,159 47.6~ August 46,091 42,525 71,299 60,072 56,711 129,554 71,521 134,783 63,262 88.5"/ Sel:*ember 55,870 67,~62 58,683 37,509 61,053 82,001 75,143 96,216 21,073 28.0/ Oclol:~' 5~,489' ' 38,435 ' 60,354 ' 42,'402' 47,776' December ' 57,415 49,~I ' 81,887 49,613 ' 47,978' 5~,337 ' 69.822 ..... 0.0/ ExpthnJNovember** . 1,167,581. 1,318,824. 1,549,756 _ 1,585,832 1,855,502 1,933,057 .... 2,131,388 21037,0(~) r~l nE Recoveq, Ratio 35.2°/. 41 5% 373% 33.8% 37.0% 47 4% 368°/" 59.8% na nE YTD I:~ Ratio 39.4% 41 6% 39.0% 34.0% 35.7% 378% 36.9% na na nE "Ex.tums indude CommUr"ty Develo~ Administration (001-5200-071 ), Planning (001-5200q)73) and B~Jtding (001-5200-074). rebuilding Permits 1Plan Check Fees IZoning Fees [] Electrical pgrmit& $650,000 $600,000 $550,000 $500,000 $450,000 $400,000 $350,000 $3OO,00O $250,000 $200,000 $150,000 $1oo,ooo $50,000 $- BUILDING PERMIT/ZONING/PLAN CHECK FEES 1994-1999 1994 1995 1996 1997 1998 1999-Adp 1999-Act 12 Ci.tv of Federal }Fag November 1999 Monthl, v Financial Report ' February " ' 2,403- ' i0,580 ' 6.797 ' 23.627 ' 8.583 ' 8.437 ' 13.293 ' 16.802· $ 3.509- March 3,790 8,826 11.568 10.708 26.504 12.347 15.179 38.782 $ 23.603 155.5% April 18.496 25,439 11.224 14.751 9.079 19.977 23.709 16.286 $ (7,423) .31 3% May 4,163 6,955 18,991 21.158 9.551 26.621 17.238 12.147 $ {5.091) -295% June 2,472 39,839 7,131 8.283 9.977 26.339 20.478 17.944 $ (2,534) -12 4o,( July 16,366 8,374 9.726 29.676 12.353 21002 19.117 10.643 $ (8,474) -44 3o~ August 12,419 19,584 9.339 18.645 27.438 26631 18.668 23.777 $ 5 109 27 4°,~ September 6,583 9,997 9.006 15.252 26.180 24 786 18531 10.345 $ (8.186) October 35,280 (32,125) 22.059 14.041 15.049 22.326 19.175 14.652 $ (4,523) -23.6°,( November 7,947 11,036 27.799 13.524 18.019 28.331 20.040 18.508 $ (1 532) -76°~( December · ' 7,193 ' 20,147 ' 22,638 14,832 18,468 21,839 00°,( Monthly Average 9,914 12,071 14,890 16,435 15,735 20,954 18,631 18,107 -232 Permits/Plan Review/Inspection Fees Through November 250,000 200,000 150,000 100,000 50,000 az0ning/Subdiv Fees I [] PW Inspection Feesl []Plan Review Fees I IROW Permits I 1994 1995 1996 1997 1998 1999-1999- Adp Act 13 ATTACHMENT A CITY OF FEDERAL WAY SUMMARY OF SOURCES AND USES OPERATING FUNDS Through November 1994 - 1999 Actuals I 1999 Revised Budget Actuals Variance !;i Through Through Favorable (Unfavorable) Sources~Uses 1994 1996 1996 1997 1998 I Annual November November Dollars ($) Perc~ Beginning Fund Balance $12,181,738 $11,403,627 $10,331,641 $10,396,188 $16,128,342 $17,264,368 $17,264,368 $17,264,368 $ 0.0% iOperating Revenues ~roperty Taxes 5,515,977 5,786,231 5,970,665 5,521,780 6,430,603 6,634,350 6,176,608 6,176,608 00% .~ales Tax 6,937,632 7,275,120 7,393,812 7,275,316 7,982,152 8,605,426 7,849,856 8,808,183 958,327 122% -Iotel/Motel Lodging Tax 65,000 42,863 40,753 (2,110) -4 9% 2riminal Justice Sales Tax 963,044 996,649 1,037,765 1,148,905 1,235,388 1,362,747 1,243,019 1,342,409 99,390, 8.0C/ 5,455,399 5,187,555 4,741,795 4,484,091 4,611,464 4,576,430 4,274,570 4,660,907 386,337 I 9 0% Intergovernmental Real Estate Excise Tax 1,258,755 960,277 1,313,992 1,671,024 2,098,821 1,200,000 1,079,637 2,260,267 1,180,630r 109 3ambling Taxes $317,945 $304,308 $273,262 $298,997 $350,804 509,600 476,109 1,305,112 829,003 174 1% Utility Taxes - 719,799 3,377,058 4,134,364 4,633,769 4,233,955 4,814,903 580,948 13.7% Fines & Forfeitures 547,370 567,828 I 529,784 554,862 757,785 714,000 661,307 775,490 114,183 17 3% Building Permits/Fees-CD 547,479 578,248 535,784 687,291 913,114 853,193 783,371 1,218,890 435,519 55.6% Pass Through Fees-CD 45,126 85,833 85,833 II nlm ROW Permits/Fees-PW 118,660 156,037 178,598 169,775 232,985 223,573 201,734 199,179 (2,555) I -1 3% Pass Through Fees-PW 40,979 59,492 59,492~ n/a Licenses 62,900 56,966 57,076 51,497 45,194 123,201 114,939 127,867 12,928 I 11 2% Franchise Fees 364,105 386,005 399,033 463,232 568,047 494,255 494,255 469,923 (24,332)! -49% Recreation Fees 389,136 372,238 377,861 385,530 401,954 551,343 515,704 543,773 28,068 I 5 4% Dumas Bay Centre 108,267 201,868 259,110 318,300 329,497 429,609 356,717 467,777 111,059 31 1% Knutzen Family Theatre 10,102 59,030 54,111 42,790 11.321) -209% Interest Earnings 599,762 609,170 564,172 611,430 802,062 1,040,139 789,190 968,758 179,567 228% Admin Fee-SWM & Solid Waste 137.852 I 141,989 149,173 152,157 168,478 154,440 154,440 - 00% SWM Fees 2,939,139 2,952,011 i 2,934,767 2,676,639 2,938,513 3,120,302 3,465,534 3,465,534- ' 0 0% ~efuse Collection Fees 137,859 133,825 131,931 131.282 135,103 148,524 136,147 135,770 (377) -0.3% Police Servicec - 696,715 158,464 138,432 130,037 283,975 153,938 ! 118.4% Other 650,738 719.631 925,661 1,130,106 2,043,335 139,765 141,289 141,289 - I 00% 31,803,002 36,418,013 36,791,166 33,376,393 38,649,922 6,174,630 ! 16.6% Total Operating Revenues 26,914,167 27,381,819 28,486,866 Operating Expenditures I City Council 180,656 164,404 167,448 178,402 182,268 219,841 211,156 180,027 31,128 I 147% City Manager 345,710 423,854 444,602 486,057 502,982 587,110 544,527 525,596 18,931 35% Dou rt Contract 208,282 237,429 203,530 278,169 391,304 499, 472 420,350 338,945 81,405 19 4 ~unicipal Court-Start up 300,0OO 80,927 80,927 ~anagement Services 1,017,083 1,140,856 1,293,270 1,240,990 1,405,416 1,953,969 1,548,665 1,493,265 55,400 [ Divil/Criminal Legal Services 654,919 767,912 863,320 885,637 1,036,169 1,253,692 1,143,763 1,143,838 (75)i Domm. Developement Services 2,900,381 3,254,608 2,456,004 2,303,170 2,434,310 3,048,376 2,785,855 2,580,329 205,525 ~ 74°,~ 3olice Services 7,550,096 7,558,520 8,321,974 8,831,900 9,890,079 12,049,356 10,829,681 10,877,663 (47,982) -0 4°/~ :ail Services 571,059 451,167 535,954 642,826 833,897 875,000 718,572 1,169,765 (451,193) -62 Parks & Recreation 2,878,054 2,844,634 2,793,225 2,397,231 2,453,333 3,065,364 2,818,345 2,904,175 (85,830) -3 0%~ Public Works 2,202,816 2,412,940 2,594,737 2,729,624 2,940,425 3,444,273 3,139,762 2,771,941 367,821 11 7% City Overlay Program 650,914 529,695 858,926 1,602,556 1,796,193 2,018,311 1,759,401 1,759,401 - [ 00% Snow & Ice Removal (1) 8,723 6,644 45,406 56,292 34,602 55,076 48,460 20,238 28,222 58 2% Solid Waste 131,896 183,070 245,795 446,448 256,536 299,727 263,723 215,571 48,152 18.3% Hotel/Motel Lodging Tax 40,000 101 101 - 0 0% Surface Water Management 1,018,886 1,245,103 1,371,194 1,287,857 1,287,862 1,749,884 1,582,323 1,365,451 216,872 137% Debt Service 526,054 1,787,279 649,942 719,379 1,040,824 5,293,482 5,306,731 5,306,731 - 00% Dumas Bay Centre 181,063 278,473 353,163 376,476 360,740 467,436 432,155 450,155 (18,000)1 -42% Knutzen Family Theatre - - - 67,856 159,030 145,778 111,793 33,985 I 233% Total Operating Expenditures 21,026,692 23,286,688 I 23,198,490 24,463,014 26,914,796 37,379,400 33,780,276 33,296,912 484,363 ! 1.4% Operating Revenues overl(under) Operating Expenditures 6,887,676 4,096,231 6,288,366 7,339,988 9,603,217 (1,688,234) (404,882) 6,264,010 6,668,891 ~ -1397.7% I Other Financing Sources ' ' I 4,368,938 4,256,897 7,142,596 5,556,371 5,556,371 - 0 0% I :~her Financing Uses , 3,464,152 5,462,280 5,602,330 3,578,519 8,493,776 10,926,698 ! 9,261,436 9,261,436 - 00°/~ ;nding Fund Balance Solid Waste 111,484 188,505 213,050 296,991 294,316 285,378 268,609 nlm nlm S now & Ice * 191,274 103,239 73,358 103,530 100,000 85, 011 nlm nlm Arterial Street 1,563,848 971,893 362,100 470,902 477,375 312,825 nlm nlm Utility Tax - I] 2,120,030 2,177,359 2,470,260 nlm nlm SWM 2,016,324 1,702,890 / 1,077,666 1,566,522 2,276,459 1,321,384 2,189,027 n/a ! n/a Path & Trails 29,109 39,284i 50,210 6,153 i 12,555 21,598 21,286 n/a; n/a Strategic Reserve 2,150,560 2,104,645 2,050,477 2,022,389 2,025,496 2,000,000 2,012,109 nlm i nlm Debt Service 1,657,809 1,936,991 1,618,909 2,986,805 5,283,482 4,447,344 5,318,054 i n/a ! n/a Dumas Bay Centre I 562,661 I 157,897 i 115,131 i 83,742 13,286 (0) '1 103,435I n/a; n/a Police I -; 1,031.439I ' 1,082,207 786,441 [, 669,334 . 748,150 n/a ! i ' 300.000 ~ 300,000 I 300,000 J nlm i P3 I '; - i -, 300.000 i ' , ' ' Interfund Loans i 60,000 ] 10,000 '~ _ i 10.000 i 10000 ] 10.000 ] - 10,000 I nlm i ' Unreserved i 6,453,3661 1,701,7601 4.426.795! 9,627.526] 3,532,267] 379,8031 . 4,964,546 n/al nlm Total Endln~ Fund Balance i $14,60~,161 I $10,036,678 ! $10,017,577 i $18,626,696 ! $17,236,237 I $11,712,200 I $13,144,421 I $18,803,312 I $6,668,892 t 43.1% Note I These expenditures occur primarily during the winter months 12/10/9912:35 PM MEETING DATE: DecemberS, 1999 CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: ORDINANCE AMENDING CRIMINAL CODE CATEGORY: BUDGET IMPACT: CONSENT XXORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Proposed amendments to Ordinance No. 91-89. SUMMARY/BACKGROUND: The following amendments to the Federal Way Criminal Code are housekeeping amendments to make the City Code consistent with state law changes and consistent with recent court cases. 1. Possession or Consumption of Liquor by Minors Background: Federal Way Criminal Code (FWCC) 6-37 currently criminalizes the possession or consumption of liquor by an individual under the age of 21. The code does not allow prosecution of a minor that already consumed alcohol prior to any law enforcement contact. The City Prosecutor's Office has had to decline many cases due to this exclusion in the FWCC. The Washington State Legislature amended RCW 66.44.270 to not only criminalize possession and consumption, but also to criminalize an individual exhibiting the effects of alcohol in a public place or in a motor vehicle in a public place. In the interests of public health, safety and welfare, the City of Federal Way staff recommends that FWCC 6-37 be repealed as currently worded and adopt RCW 66.44.250 by reference, including all future amendments, additions or deletions. 2. Possession of Marijuana Background: Federal Way Criminal Code (FWCC) 6-86(2) currently criminalizes the possession of marijuana. The FWCC does not impose a mandatory penalty for this crime. RCW 69.50.425 does impose mandatory penalties for this crime, specifically 1 day in jail and a $250 fine for a first offense; and 1 day in jail and a $500 fine for a second offense. In the interests of public health, safety and welfare, the City of Federal Way staff recommends that FWCC 6-86 be amended to adopt RCW 69.50.425, by reference, including all future amendments, additions and deletions. 3. Possession of Drug Paraphernalia Background: Federal Way Criminal Code (FWCC) 6-88 currently criminalizes the possession of drug paraphernalia. The FWCC does not impose a mandatory penalty for this crime. RCW 69.50.425 does impose mandatory penalties for this crime, specifically 1 day in jail and a $250 fine for a first offense; and 1 day in jail and a $500 fine for a second offense. In the interests of public health, safety and welfare, the City of Federal Way staff recommends that FWCC 6-88 be amended as currently worded to reflect the mandatory penalties under RCW 69.50.425. CITY COUNCIL COMMITTEE RECOMMENDATION: On November 22, 1999, Council Committee approved the amendments to Ordinance No. 91-89, and moved to forward amendments to full Council. CITY MANAGER RECOMMENDATION: Approve Council Committee recommendation. APPROVED FOR INCLUSION IN COUNC~ . . PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # k:\agenditem\91-89criminal.amd ORDINANCE NO. DRAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, REPEALING FEDERAL WAY CRIMINAL CODE SECTION 6-37 AND ADOPTING BY REFERENCE RCW 66.44.270 FURNISHING LIQUOR TO MINORS-POSSESSION, USE-PENALTIES-EXHIBITION OF EFFECTS-EXCEPTIONS; AMENDING FEDERAL WAY CRIMINAL CODE SECTION 6-86-MANDATORY PENALTIES INVOLVED; AMENDING FEDERAL WAY CRIMINAL CODE SECTION 6-87-MANDATORY PENALTIES INVOLVED. (AMENDS ORDINANCE NO. 91- 89). WHEREAS, the City of Federal currently criminalizes furnishing, providing and possession of liquor by individuals under the age of 21; and WHEREAS, the provisions the city code no longer satisfactorily accomplish this end due to the Washington State Supreme Court ruling in State v. Hornaday, 105 Wash.2d 120 (1986); and WHEREAS, the state legislature has amended RCW 66.44.270 to properly reflect the Washington State Supreme Court ruling in Hornada¥; WHEREAS, the City of Federal Way currently criminalizes the possession of marijuana, but does not impose a mandatory penalty for this crime; and WHEREAS, the Revised Code of Washington 69.50.425 imposes a mandatory penalty of 24 consecutive hours in jail and a $250.00 fine for a first offense, and on a subsequent offense the mandatory jail time remains 24 consecutive hours but the fine increases to $500.00; and ORD # , PAGE I WHEREAS, the City of Federal Way currently criminalizes the possession of items commonly known as Drug Paraphernalia, but does not impose a mandatory penalty for this crime; and WHEREAS, the Revised Code of Washington 69.50.425 imposes a mandatory penalty of 24 consecutive hours in jail and a $250.00 fine for a first offense, and on a subsequent offense the mandatory jail time remains 24 consecutive hours, but the fine increases to $500.00; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Amendment - Possession or Consumption of Liquor by Minors. A. Repeal. Ord. No. 91-89, § 1(9.04.020), 3-5-91, Federal Way Criminal Code Section 6-37 is hereby repealed: ORD # , PAGE 2 f...]\ 'T'I~; .... :~-- .1~ ~. ~----i.. ~-~ 1.' ...... B. Adoption. RCW 66.44.270, a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference, including all future amendments, additions or deletions, is hereby adopted by reference as Federal Way Criminal Code Section 6-37. Section 2. Amendment - Possession of Marijuana. The City Council hereby amends Ordinance No. 91-89, § 1(9.14.010), 3-5-91, as follows: Section. 6-86. Statutes adopted. The following state statutes, including all future amendments, additions or deletions, are adopted by reference: (]) (2) (3) (4) RCW 69.50.101, Definitions. RCW 69.50.204(d)(13), Schedule I--Marijuana. RCW 69.50.309, Containers. RC W 69.50.401 (e), Prohibited acts: A--Penalties. ORD # , PAGE 3 (5) (6) (7) (8) RCW 69.50.412, Prohibited acts: E--Penalties. RCW 69.50.505, Seizure and forfeiture. RCW 69.50.506, Burden of proof. RCW 69.50.509, Search and seizure of controlled substances. RCW 69.50.425, Misdemeanor violations-Minimum imprisonment Section 3. Amendment- Possession of Drug Paraphernalia. The City Council hereby amends Ordinance No. 91-89, § 1(9.14.020), 3-5-91, as follows: Sec. 6-87. Drug paraphernalia-Possession prohibited. No person shall possess any drag paraphernalia as defined in section 6-88. Possession of drug paraphernalia is a misdemeanor. An individual's first offense of this section is punishable by a mandatory_ penalty of 24 consecutive hours injail and imposition of a $250.00 fine. Any subsequent offenses shall be punishable by a mandatory_ penalty of 24 consecutive hours in jail and a $500.00 fine. These fines shall be in addition to any other fine or penalty imposed. Section 4. Severability. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to other persons or circumstances. ORD # , PAGE 4 Section 5. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affmned. Section 6. Effective Date. This ordinance shall take effect and be in force five (5) days from and after its passage and publication, as provided by law. PASSED by the City Council of the City of Federal Way this ,19 · day of CITY OF FEDERAL WAY MAYOR, RON GINTZ ATTEST: CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATTORNEY, LONDI K. LINDELL FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. K: \C KI MINA LL& MEND~,ord91-89.wpd ORD # , PAGE 5 w.~ o t uu,.'~4..Z IU West's RCWA 66.44.270 WEST'S REVISED CODE OF WASHINGTON ANNOTATED TITLE 66. ALCOHOLIC BEVERAGE CONTROL CHAPTER 66.44. ENFORCE~-PENALTIES Copt. © West Group 1999. All fights reserved. Current through End of 1999 Sp. Sess. 66.44.270. Furnishing liquor to minors-Possession, use-Penalties- Exhibition of effects-Exceptions (1) It is unlawfifl for any person to sell, give, or otherwise supply liquor to any person under the age of twenty-one years or permit any person under that age to consume liquor on his or her premises or on any premises under his or her control. FOr the purposes of this subsection, "pre~ses" includes real property, houses, buildings, and other structures, and motor vehicles and watercraft. A violation of this subsection is a gross misdemeanor punishable as provided for in chapter 9A.20 RCW. (2)(a) It is unlawful for any person under the age oftw.enty-one years to possess, consume, or otherwise acquire any liquor. A violation of this subsection is a gross misdemeanor punishable as provided for in chapter 9A.20 RCW. (b) It is unlawful for a person under the age of twenty-one years to be in a public place, or to be in a motor vehicle in a public place, while exhibiting the effects of having consumed liquor. For purposes of this subsection, exhibiting the effects of having consumed liquor means that a person has the odor of liquor on his or her breath and either: (i) Is in possession of or dose proximity to a container that has or recently had liquor in it; or (ii) by speech, manner, appearance, behavior, lack of coordination, or otherwise, exhibits that he or she is under the influence of liquor. This subsection (2)(b) does not apply if the person is in the presence of a parent or guardian or has consumed or is consuming liquor under Circumstances described in subsection (4) or (5) of this section. (3) Subsections (1) and (2)(a) of this section do not apply to liquor given or permitted to be given to a person under the age of twenty-one years by a parent or guardian and consumed in the presence of the parent or guardian. This subsection shall not authori~.~ consumption or possession of liquor by a person under the age of twenty-one years on any premises licensed under chapter 66.24 RCW. (4) This section does not apply to liquor given for medicinal purposes to a person under the age of twenty-one years by a parent, guardian, physician, or dentist. (5) This section does not apply to liquor given to a person under the age of twenty-one years when such liquor is being used in connection with religious services and the amount consumed is the minimal amount necessary for the religious service. (6) Conviction or forfeiture of bail for a violation of this section by a person under the age of twenty-one years at the time of such conviction or forfeiture shall not be a disqualification of that person to acquire a license to sell or dispense any liquor after that person has attained the age of twenty-one years. [1998 c4 § 1; 1993 c 513 § 1; 37(I); RRS § 7306-37(I); prior: Code 1881 § 939; 1877 p 205 § 5.] CREmT(S) 1999 Electronic Pocket Part Update 1987 c 458 § 3; 1955 c 70 § 2. Prior: 1935 c 174 § 6(1); 1933 ex.s. c 62 § <General Materials (GM) - References, Annotations, or Tables> ?iXtt I B IT "A" of 8 11/16/99 11:13 AM CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Adult Uses Ordinance - Clerical Correction CATEGORY: BUDGET IMPACT: None CONSENT X ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: 1) November 15, 1999 memorandum from Stephen Clifton to the Land Use and Transportation SUMMARY/BACKGROUND: On August 3, 1999, the City Council adopted Ordinance 99-347, amending Chapter 22 of the City Code as it pertains to adult uses. City staff recently discovered that a clerical error occurred during the amendment process. Specifically, Exhibit C to Ordinance No. 99-347 (Federal Way City Code 22-763, note 1.b) incorrectly references uses and zones specified in paragraph 1.a.6 (i.e., elementary or secondary schools). Note 1.b. should actually refer to uses and zones specified in paragraph l.a.7 (other adult uses). During the amendment process, Sections 22-794 and 22-806 were deleted and a new section was added to the list of uses subject to the 1,000 foot spacing, i.e., "public or private elementary or secondary school." Because the rest of the section was not renumbered, the numerical reference in Note 1.b (the subsection under which an adult use may be allowed to be closer than 1,000 feet to another adult use) now incorrectly refers to allowing an adult use to be located within less than 1,000 feet of a school. The proposed ordinance corrects this typographical error by renumbering the reference in Note 1.b from 1.a.6 to 1.a.7. The attached November 15, 1999 memorandum, attached, provides further detail. Stephen Clifton, the City's SEPA Responsible Official, has determined that ....~.e....c. !..e..r.!c...M....c..o...r.r.e..c..t.!.o...n...! .s...c...a.t..e..g...o..r.!.c..a..1.!.y...,e. X...e...m...p.!..f..r..o...m....r..e..v.i..e...w......m}...d.e' .r.....~...e...S' !.a..t..e....E...n.v. !.r...o....n~...e..n..t..a.!....P.,o.!~ .c' .y.....A...c.!.,..~..C....W.....4..3.....2..!,..C.... ...................... CITY COUNCIL COMMITTEE RECOMMENDATION: On November 15, the Land Use and Transportation Committee voted 3-0 to forward a recommendation of approval to the City Council for their consideration on December 7, 1999. CITY MANAGER RECOMMENDATION: Approve the revised Ordinance per the recommendation of the LUTC. Additionally, because this is a clerical correction, it is recommended that the City Council suspend its rules and adopt the ordinance without a second reading. (BELOW TO BE COMPLETED BY CI~ CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION 02de¢99.cca ~ /~'~ ~/Z' COUNCIL BILL # ORDINANCE # RESOLUTION # CITY OF~~J~~ (253) 661 ~4000 FEDERAL WAY, WA 98003~6210 Memorandum DATE: TO: FROM: SUBJECT: November 15, 1999 Phil Watkins, Chair Land Use / Transportation Committee Stephen Clifton, Directo~ Adult Uses Ordinance · As you may recall, the City Council recently adopted Ordinance No. 347, mending Chapter 22 of the City Code as it pertains to adult uses. Unfortunately, we recently discovered that a clerical error occurred during the amendment process. Under the code existing at the time of the amendment, Sections 22-794 and 22-806, requires adult uses to be located no closer than 1,000 feet from: any zone in which residemial uses are permitted outright; and any public park; library; day care'facility or school; church, synagogue or other place of religious worship; or any other adult activity. The then-existing code also allowed the City to, using process IV, allow an adult use less than 1,000 feet from another existing adult use, based on several ~pecific criteria. When the code was amended, the provision for allowing an adult use to be closer than 1,000 feet to another adult use was not changed. However, Sections 22-763 and 806 were deleted, and a new section was added to the list of uses subject to the 1,000 foot spacing by changing "day care facility or school" to "day care center for children, nursery, or pre-school, and adding a separate category for "public or private elementary or secondary school." Because the rest of the section was not renumbered, however, the numerical reference to the subsection under which an adult use may be allowed to be closer flaan 1,000 feet to another adult use now appears (incorrectly) to refer to allowing an adult use to be located within less than 1,000 feet of a school. Because the code section allowing for reduction of the 1,000-foot separation requirement was not changed from the previous code, and because the legislative history of the code change does not indicate any legislative intent to permit reduction of the 1,000-foot buffer with respect to schools, I am by this memorandum i.~suing a code interpretation under Section 22-354 that the reference in the new code section 22-763, Note 1.b to the uses and zones specified in paragraph 1.a(6) (i.e., elementary or secondary schools) actually refers to the uses and zones Memo to Phil Watkins, Chair Re: Adult Uses Ordinance November 15, 1999 Page 2 specified in 1.a(7) (other adult uses). Under Section 22-354(b), the City will enforce this code interpretation as if it were part of chapter 22 of the City Code. Nevertheless, to prevent confusion, it is appropriate that the City Council make this technical "housekeeping" correction, to preserve the Council's intent to provide meaningful protection from adult uses to sensitive uses such as schools and day care facilities. Accordingly, could you please place this matter on the LUTC's November 15, 1999 agenda, so that the change can be forwarded to the City Council as soon as possible? Thank you very much for your consideration of this matter. Please call me if you have any questions at 253.661.4109. K:hMEMO\adultclif ORDINANCE NO. DRAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AMENDING SECTION 22-763 OF THE FEDERAL WAY CITY CODE, "ADULT ENTERTAINMENT, ACTIVITY, RETAIL OR USE". WHEREAS, the Federal Way City Council is committed to protecting the general welfare of the City through the enforcement of laws prohibiting obscenity, indecency, and sexual offenses while preserving constitutionally protected forms of expression; and WHEREAS, after a detailed review of the national record, the City Council adopted Ordinance No. 99-347 on August 3, 1999; and WHEREAS, in adopting Ordinance No. 99-347, the City Council recognized that adult entertainment, activity, retail, or use have a detrimental effect on both the existing businesses around them and the surrounding residential and commercial areas adjacent to them, causing increased crime, the downgrading of quality of life and property values and the spread of urban blight, and that reasonable regulation of the location of these facilities will provide for the protection of the community, protect residents, patrons, and employees from the adverse secondary effects of such retail facilities; and WHEREAS, in adopting Ordinance No. 99-347, the City Council also recognized that adult entertainment, activity, retail, or use, due to their very nature, have serious objectionable operational characteristics, particularly when located in close proximity to residential neighborhoods, day care centers, religious facilities, public parks, libraries, schools, and other adult ORD # , PAGE 1 entertainment, activity, retail, or use, thereby having a deleterious impact upon the quality of life in the surrounding areas; and WHEREAS, Ordinance No. 9%347 stated that its purpose was to protect the general public health, safety, and welfare of the citizenry of the City through the regulation of the location of adult entertainment, activity, retail, or use by, inter alia, isolating dangerous and unlawful conduct associated with these facilities; and WHEREAS, to achieve this purpose, Ordinance 99-347 adopted new sections of the Federal Way City Code, including Section 22-763; and WHEREAS, Section 22-763 included virtually verbatim many of the provisions of the former Sections 22-794 and 22-806, including those in notes 1 .a and 1.b of those sections, which prohibited adult uses from being located or conducted any closer than 1,000 feet from any residential zone, public park, library, day care, church or other religious institution, elementary or secondary school, or any other adult use, except that under Process IV the City could approve an adult use that is located closer than 1,000 feet of another adult use; and WHEREAS, in listing the types of uses from which an adult use must be separated by 1,000 feet, Section 22-763 added to the language of former Sections 22-794 and 22-806 by separating day care centers from schools, and calling out "public and private elementary and secondary schools" as a separate category, thereby increasing the number of uses from which separation of adult uses by 1,000 feet is required from six (6) to seven (7); and WHEREAS, other numerical references within Section 22-763 were not renumbered, so that, the creation of the "elementary and secondary schools" category within note 1.a rendered ORD# ,PAGE2 incorrect the reference in Section 22-763, note. 1.b to the process by which adult uses could receive approval for location within less than 1,000 feet of other adult uses; and WHEREAS, because one of the stated purposes of Ordinance No. 99-347 was to protect adjacent sensitive uses (such as schools and youth attending them) from the adverse secondary effects of adult uses, the City Council did not intend by adoption of Ordinance No. 99-347 to create a process by which adult uses could be located within less than 1,000 feet from elementary or secondary schools; and WHEREAS, upon City staff's discovery of the clerical error in Ordinance No. 99-347, the Director of the Department of Community Development issued an administrative interpretation pursuant to Federal Way City Code Section 22-354 that Section 22-763, note 1.b allows an adult use to be located less than 1,000 feet only from another adult use, but not from an elementary or secondary school; and WHEREAS, to implement the purposes of Ordinance No. 99-347, the City Council desires to promptly correct the clerical error in Ordinance No. 99-347 that occurred as a result of the renumbering of subsections within note 1 .a; and WHEREAS, this clerical correction was considered by the City Council's Land Use and Transportation Committee ("LUTC") at its November 15, 1999 meeting, at which the public was given opportunities to comment; and WHEREAS, the LUTC voted 3-0 to forward the clerical correction to the full City Council for adoption at its December 7, 1999 meeting; and WHEREAS, there has been sufficient opportunity for the public to comment on the clerical correction; and ORD # , PAGE 3 WHEREAS, pursuant to WAC 197-11-800(20), the Federal Way SEPA Responsible Official has determined that this clerical correction is categorically exempt from review under the State Environmental Policy Act, RCW 43.21 C; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Findings. After full and careful consideration, the City Council of the City of Federal Way finds that the proposed clerical correction will protect and will not adversely affect the public health, safety, or welfare. Section 2. Conclusions. Pursuant to FWCC Sections 22-216 and 22-528, and based upon the Findings set forth in Section 1, the Federal Way City Council makes the following Conclusions of Law with respect to the decisional criteria necessary for the adoption of the proposal: 1. The proposed clerical correction is consistent with the City of Federal Way Comprehensive Plan (FWCP) purposes, goals, and polices: FWCP Pg VII-1 "Create an identifiable downtown that is the social and economic focus of the City." FWCP Pg VII- 1 "Establishment of an urban center that is a vibrant, unique and attractive place to work." FWCP CCG5 "Encourage a mix of compatible uses to maintain a lively, attractive, and safe place to live, work and visit." 2. The proposed clerical correction bears a substantial relationship to the public health, safety, and welfare; and 3. The proposed clerical correction is in the best interest of the residents of the city. ORD # , PAGE 4 Section 3. Amendment. The FWCC, Section 22-763 is amended as set forth in the attached Exhibit A; Section 4. Severabilitv. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to any other persons or circumstances. Section 5. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 6. Effective Date. This ordinance shall be effective five (5) days after passage and publication as provided by law. PASSED by the City Council of the City of Federal Way this __ day of December, 1999. City of Federal Way Attest: Mayor, Ron Gintz City Clerk, N. Christine Green, CMC Approved as to Form: City Attorney, Londi K. Lindell ORD # , PAGE 5 Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance No: K:\Ordin\adltretl.amd.wpd -I0 I/-19I~H l CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Natural Gas or Manufactured Gas Use Tax Ordinance CATEGORY: BUDGET IMPACT: CONSENT .X ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Ordinance SUMMARY/BACKGROUND: This ordinance will provide for the collection of a use tax (in the amount equivalent to the Utility Tax Rate) on the consumer of out of State purchases of natural gas or manufactured gas, which is not already being taxed through the Utility Tax ordinance. This will eliminate the disadvantage of the in-State natural gas provider who is currently subject to the City's Utility Tax. CITY COUNCIL COMMITTEE RECOMMENDATION: Approve the ordinance for first reading and forward to the December 21 st Council meeting for adoption. CITY MANAGER RECOMMENDATION: Approve Council Committee Recommendation APPROVED FOR INCLUSION IN COUNCIL.--~,..~ ^ PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL it 1st Reading Enactment Reading ORDINANCE it RESOLUTION It K:\FINANCE\FINCOMMT~ 1999\NATGASORD.WPD y CITY OF FEDERAL WAY MEMORANDUM DATE: TO: FROM: SUBJECT: November 23, 1999 Finance Economic Development & Regional Affairs Committee Members Marie Mosley, Deputy Management Services Director" Use Tax for Natural or manufactured Gas Pursuant to RCW 82.14.230, the City has the authority to impose and collect a tax on natural gas or manufactured gas used in the City, which is not already being taxed through the Utility Tax ordinance. Any consumer that purchases natural gas from an outside source is subject to this "use" tax in the amount equivalent to our utility tax rate (5%). The tax is collected by the Washington State Department of Revenue, as authorized by the attached interlocal agreement, and remitted to the City on a quarterly basis. In addition, the City is required to implement an ordinance authorizing the collection of this tax, which is also attached. The City is currently aware of only one business at this time that would be subject to this ordinance, although there may be others that we are not aware of at this time. By implementing this ordinance all businesses located in the City of Federal Way will be paying an equitable amount of tax on natural gas. Committee Recommendation: Approve the natural gas or manufactured gas ordinance that will allow for the collection of the use tax on the consumer of outside purchases of natural gas or manufactured gas. Approve the interlocal agreement that provides for the collection of this use tax by the Washington State Department of Revenue. APPROVAL OF COMMITTEE REPORT: Com'mi~e Chaii' '"" ,///Committee/Membe J-- 1 ORDINANCE NO. DRAFT 7 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, IMPOSING A USE TAX ON THE PRIVILEGE OF USING NATURAL GAS OR MANUFACTURED GAS AS A CONSUMER AS AUTHORIZED BY RCW 82.14.230. WHEREAS, State law permits the City to levy a use tax on the privilege of using natural gas or manufactured gas; and WHEREAS, the City deems it necessary and advisable to adopt measures providing for increased revenue from such a tax upon persons consuming such natural gas or manufactured gas; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Imposition. As authorized by RCW 82.14.230, there is hereby imposed on every person a use tax for the privilege of using natural gas or manufactured gas in the City as a Consumer. The tax shall be in an amount equal to the value of the article used by the taxpayer multiplied by the rate of tax on the gas distribution business as set forth in Section 14- 173(d). The "value of the article used" shall have the meaning set forth in RCW 82.12.010(1). Section 2. Exemption. The tax imposed under this Section shall not apply to the use of natural or manufactured gas if the person who sold the gas to the consumer has paid a tax ORD # , PAGE 1 under Section subsection. 14-173(d) with respect to the gas for which exemption is sought under this Section 3. Credit. There shall be a credit against the tax levied under this Section if allowed pursuant to RCW 82.14.230(4) as it now exists or may hereafter be amended. Section 4. Administration - Collection. The use tax hereby imposed shall be paid by the consumer. The administration and collection of the tax imposed by this ordinance shall be in accordance with the provisions of RCW 82.14.050 as the same now exists or may hereafter be amended. Section 5. Severability. The provisions of this ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance or the invalidity of the application thereof to any person or circumstance, shall not affect the validity of the remainder of the ordinance, or the validity of its application to other persons or circumstances. Section 6. Ratification. Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 7. Effective Date. This ordinance shall take effect and be in force five (5) days from and after its passage and publication, as provided by law. PASSED by the City Council of the City of Federal Way this , 19 CITY OF FEDERAL WAY day of ORD # , PAGE 2 MAYOR, RON GINTZ ATTEST: CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATTORNEY, LONDI K. LINDELL FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO. K:\ORDIN\usegas.tax Revised 11-18-98 ORD # , PAGE 3 CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Year 2000 Right of Way Landscape Maintenance Contract Award CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: Expenditure Amt: Contingency Reqd: $98,838.00 $98,829.58 N/A ATTACHMENTS: Memorandum to the Land Use and Transportation Committee dated November 24, 1999. SUMMARY/BACKGROUND: Three (3) bids were received and opened on November 23, 1999 at 10:l 0 a.m. for the year 2000 Right of Way Landscape Maintenance Contract. The bids for this contract are as follows: Blue Sky Landscaping Ramsey Landscape Maintenance Tm-Green Land Care $ 95,785.00 $ 99,599.58 $107,997.58 Budgeted Amount $ 9&838.00 Blue Sky Landscaping did not include a bid amount for "Extra Hours of Maintenance Labor" making their bid non- responsive, and therefore they were eliminated from consideration. The lowest responsive, responsible bidder is Ramsey Landscape Maintenance with a total bid of $99,599.58. The amount available for this contract is $98,838.00 and to award within budget, the "Extra Hours of Maintenance Labor" will be reduced from 200 to 178 hours for a total bid amount of $98,829.58. CITY COUNCIL COMMITTEE RECOMMENDATION: At its December 6, 1999 meeting, the Land Use and Transportation Committee forwarded to the full City Council for approval, the following staff recommendations: 1. Award the year 2000 Right of Way Landscape Maintenance Contract to Ramsey Landscape Maintenance, the lowest responsive, responsible bidder, in the amount of $98,829.58. 2. Authorize the City Manager to execute the contract. CITY MANAGER RECOMMENDATION: Approve Council Committee recommendation. ........................ ................................................... (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION K:\COUNCIL~AGDBILLS\ROWMAINT2000-award COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # CITY OF ~ DATE: TO: FROM: SUB3ECT: November 24, 1999 Phil Watkins, Chair Land Use/Transportation Committee Marwan Salloum, Street Systems Manager Year 2000 Right of Way Landscape htaintenance Contract Award BACKGROUND Three (3) bids were received and opened on November 23, 1999 at 10:10 a.m. for the year 2000 Right of Way Landscape Maintenance Contract. The bids for this contract are as follows: Blue Sky Landscaping Ramsey Landscape Maintenance Tru-Green Land Care Budgeted Amount $ 95,785.00 $ 99,599.58 $107,997.58 Blue Sky Landscaping did not include a bid amount for "Extra Hours of Maintenance Labor" making their bid non- responsive, and therefore they were eliminated from consideration. The lowest responsive, responsible bidder is Ramsey Landscape Maintenance with a total bid of $99,599.58. The amount available for this contract is $98,838.00 and to award within budget, the "Extra Hours of Maintenance Labor" will be reduced from 200 to 178 hours for a total bid amount of $98,829.58. RECOMM ENDAT~ON: Place the following recommendations on the December 21, 1999 Council Consent agenda for approval' Award the year 2000 Right of Way Landscape Maintenance Conl~ract to Ramsey Landscape Maintenance, the lowest responsive, responsible bidder, in the amount of $98,829.58. 2. Authorize the City Manager to execute the contract. MS:kc K:\LUTC~ 1.999\RWr4A[NTO0.award MEETING DATE: December 21, 1999 CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: 2000 Vadis Northwest -- Litter Removal Contract CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Memorandum to the Land Use and Transportation Committee dated November 22, 1999. SUMMARY/BACKGROUND: Vadis Northwest has provided litter removal services in Federal Way since 1993. The crew of five (5) developmentally disabled individuals and one supervisor collect litter from roads and City facilities throughout Federal Way. Vadis Northwest also performs a variety of other low-skilled operations. This flexibility, in turn, provides labor cost savings to the City, while providing useful employment to specially challenged individuals. Service is scheduled so that the Vadis Northwest crew regularly removes litter and debris from all major right of ways in Federal Way, while also assisting with Surface Water Management facility clean up during summer months. Based on feedback provided by Public Works' Maintenance Supervisors, and the marked reduction of litter complaints since service inception, the work provided by Vadis Northwest has represented an excellent value. The contractor's annual compensation level ($47,304.00) remains the same as in 1999, and funding for this service is primarily budgeted in Solid Waste and Recycling, with supplemental funding from the Surface Water Management Fund. CITY COUNCIL COMMITTEE RECOMMENDATION: At its December 6, 1999 meeting, the Land Use and Transportation Committee forwarded to the full City Council for approval, the staffrecommendation to enter into this contract for the 2000 term, and provide authorization to the City Manager to execute the Vadis Northwest contract, for a total contract amount of $47,304.00 for 2000. CITY MANAGER RECOMMENDATION: Approve Council Committee recommendation. APPROVED FOR INCLUSION IN COUNCIL PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION K:\COUNClLL, S, GDBILLS\I999~000 vadis contract award.wpd COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # CITY OF~__~ DATE: TO: FROM: SUB3ECT: November 24, 1999 Phil Watkins, Chair Land Use/Transportation Committee Marwan Salloum, Street Systems Manager ~ Year 2000 Right of Way Landscape I~aintenance Contract Award BACKGROUND Three (3) bids were received and opened on November 23, 1999 at 10:10 a.m. for the year 2000 Right of Way Landscape Maintenance Contract. The bids for this contract are as follows: Blue Sky Landscaping Ramsey Landscape Maintenance Tru-Green Land Care $ 95,785.00 $ 99,599.58 $107,997.58 Budgeted Amount $ g8,838.00 Blue Sky Landscaping did not include a bid amount for "Extra Hours of Maintenance Labor" making their bid non- responsive, and therefore they were eliminated from consideration. The lowest responsive, responsible bidder is Ramsey Landscape Maintenance with a total bid of $99,599.58. The amount available for this contract is $98,838.00 and to award within budget, the "Extra Hours of Maintenance Labor" will be reduced from 200 to 178 hours for a total bid amount of $98,829.58. RECOMMENDATLON: Place the following recommendations on the December 21, 1999 Council Consent agenda for approval: 1. Award the year 2000 Right of Way Landscape Maintenance Contract to Ramsey Landscape Maintenance, the lowest responsive, responsible bidder, in the amount of $98,829.58. 2. Authorize the City Manager to execute the contract. MS:kc K:\LUTC~ 1999\RWMAI NT00.award MEETING DATE: December 21, 1999 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: AG 98-170; South 312th Street Improvements, from SR 99 to 23~d Ave South, Project Acceptance and Retainage Release CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Memorandum to the Land Use and Transportation Committee Dated November 24, 1999 SUMMARY/BACKGROUND: Prior to release of retainage on a Public Works construction project, the City Council must accept the work as complete to meet State Department of Revenue and State Department of Labor and Industries requirements. The above referenced contract with Gary Merlino Construction, Inc. is complete. The final constructioncontractamount is $3,157,530.39. This is $170.51 below the $3,157,700.90 (including contingency) budget ............................................................................................................................... CITY COUNCIL COMMITTEE RECOMMENDATION: At its December 6, 1999 meeting, the Land Use and Transportation Committee forwarded to the full City Council for approval, the staff recommendation to accept the Gary Merlino Construction So 312~ Street Improvements from SR 99 to 23ra Avenue So Project as complete. CITY MANAGER RECOMMENDATION: Approve Council Committee recommendation. APPROVED FOR INCLUSION IN COUNCIL PACKET:~' /~' ~l~'\~ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) CO UNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION K: 'COUNCILMGDBILLS!I999!S 312 SR 99 to 23 complete, wpd COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # DATE: TO: FROM: SUB3ECT: November 24, 1999 Phil'Watkins, Chair Land Use/Transportation Committee Ken Miller, Deputy Public Works Director AG 98-170; South 312~ Street Improvements, from SR 99 to 23~ Ave South, Project Acceptance and Retainage Release BACKGROUND Prior to release of retainage on a Public Works construction project, the City Council must accept the work as complete to meet State Department of Revenue and State Department of Labor and Industries requirements. The above referenced contract with Gary Merlino Construction, Inc. is complete. The final construction contract amount is $3,157,530.39. This is $170.51 below the $3,157,700.90 (including contingency) budget that was approved by the City Council on August 11, 1998. Staff will be present at the December 6~ Land Use & Transportation meeting to answer any questions the Committee might have. RECOMMENDATTON Place the following item on the December 21, 1999 Council Consent Agenda for approval: 1. Acceptance of the Gary Merlino Construction, Inc. South 312m Street Improvements, from SR 99 to 23rd Ave South Project, in the amount of $3,157,530.39, as complete. KM:kc cc: Cathy Rafaneili, Management Services Project File/AG 98-170 Day File K:\LUTC~1999\312-9923.fin MEETING DATE: December 21, 1999 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: Expenditure Amt: Contingency Reqd: $320,000.00 $308,000.00 N/A ATTACHMENTS: Memorandum to the Land Use and Transportation Committee dated December 2, 1999. SUMMARY/BACKGROUND: The SR 99 at S 330th Street intersection Improvements Project was jointly funded by grants from the Transportation Improvement Board (TI B) Pedestrian Facilities Program for $100,000 and I STEA Hazard Elimination System for $220,000. TIB requires the project be completed by July 1, 2000. Per resolution 93-145 which sets the policy on Council review of Capital Improvement Projects, as a signalization project, this project has not been brought to the Committee since acceptance of the grants funding the project. This project will install a traffic signal which allows for a safe pedestrian crossing on this 3/4 mile stretch of SR 99 without any signals. The project will also install a sidewalk on the west side of SR 99 between S 330th Street and the US Postal Service office. The project is approximately 95% designed and acquisition of the necessary easements has been initiated. Response to final comments from WSDOT is the only other remaining task. An Open House was held on October 8, 1999 to provide project information and solicit public comments. No negative comments have been received. The current project cost estimate is $308,000 which is $12,000 less than the budgeted amount of $320,000. CITY COUNCIL COMMITTEE RECOMMENDATION: At its December 6, 1999 meeting, the Land Use and Transportation Committee forwarded to the full City Council the following staff recommendations: 1. Approve the 95% design plans for the SR 99 at So 330th Street Intersection Improvement Project. CITY MANAGER RECOMMENDATION: Approve Council Committee recommendation. ......................... ................................................ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION K:\COUNCIL',AGDBILLS\1999\Hwy 99 - So 330.wpd COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # CITY OF~~.,~ DATE: TO: FROM: SUB]ECl': December 2, 1999 Phil Watkins, Chair Land Use and Transportation Committee Richard Perez, City Traffic Engineer ~ SR 99 at S 33ff* Street Inter~ection Improvement~ - 95% Design Approval and Authorization to Bid BACKGROUND The SR 99 at S 330~ Street intersection Improvements Project was jointly funded by grants from the Transportation Improvement Board CTIB) Pedestrian Facilities Program for $100,000 and ISTEA Hazard Elimination System for $220,000. TIB requires the project be completed by July I, 2000. Per resolution 93q45 which sets the policy on Council review of Capital Improvement Projects, as a signalization project, this project has not been brought to the Committee since acceptance of the grants funding the project. This project will install a traffic signal which allows for a safe pedestrian crossing on this 3/4 mile stretch of SR 99 without any signals. The project will also install a sidewalk on the west side of SR 99 between S 330~ Street and the US Postal Service office. The project is approximately 95% designed and acquisition of the necessary easements has been initiated. Response to final comments from WSDOT is the only other remaining task. An Open House was held on October 8, 1999 to provide project information and solicit public comments. No negative comments have been received. The current project cost estimate is $308,000 which is $12,000 less than the budgeted amount of $320,000. The following provides a breakdown of the estimate project costs: Design Right-of-Way/Easements Construction Hanagement/[nspection Engineers Estimate Sub-Total Contingency (10%) TOTAL $30,000 $25,000 $25,000 $200,000 $280,000 $ 28,000 $308f000 RECOMMENDAT'ZONS Place the following item on the December 21, 1999 Coundl Consent Agenda: 1) 2) Approve the 95% design plans for the SR 99 at S 330a Street Intersection Improvements Project. Authorize staff to bid for project construction upon completion of 100% design plans. K:\LUTC~1999\99s330.wpcl CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: So 320th Street and Pacific Highway So (SR99) Widening and Intersection Improvement Project - 85% Design Status Report CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: Expenditure Amt: Contingency Reqd: $2,883,013.00 $2,882,649.00 N/A ATTACHMENTS: 1. Memorandum to the Land Use & Transportation Committee dated December 6, 1999 2. Interlocal Agreement between the City of Federal Way and Lakehaven Utility District for the South 320th Street and Pacific Hwy So (SR99) Widening and Intersection .......................................................................... t. ......................................................................................................................... .................. SUMMARY/BACKGROUND: The So 320th Street and SR 99 Widening and Intersection Improvement Project includes adding HOV lanes east and westbound and a second left turn lane on the south, west and east legs of the intersection. The purpose of the project is to improve traffic flow, reduce accidents and promote transit and carpool use. More than 71,888 vehicles use the intersection on an average daily basis and the intersection operates at a level of service "F" during the mid-day, evening and weekend peak periods. There have been 193 accidents in the past three years. In an effort to reduce costs and public disruption the following planned projects have been incorporated into the design and will be constructed as part of this project: Gateway Project (the trellis, landscaping and lighting alternative that was approved by the Downtown Revitalization Committee and the City Council) Downtown Revitalization Project (Utility Underground Conversion within project limit) Surface Water WHI 1-CIP-3 Storm Drain Up Size Project (Approximately 40% of this SWM project will be completed as part of this road project) Lakehaven Utility District Water and Sewer Utility Adjustment Proposed lnterlocai Agreement: In an effort to reduce costs, eliminate utility conflicts, and reduce public disruption caused by the project, staff is recommending that the City enter into an Interlocal Agreement (ILA) with Lakehaven Utility District. Please find a copy of the proposed ILA for the referenced water main adjustment/construction attached for your consideration. Staff seeks Council's authorization to enter into this agreement with Lakehaven Utility District. The total available budget for this project is $2,833,013.00 and the estimated project costs total $2,822,359.00. CITY COUNCIL COMMITTEE RECOMMENDATION: At its December 6, 1999 meeting, the Land Use & Transportation Committee forwarded to the full City Council for approval, the following staff recommendations: Approve the 85% design plans for the So 320th Street and Pacific hwy So Widening and Intersection Improvement Project and proceed with the final design and return to the LUTC committee at the 100% design completion stage for further reports and authorization to bid. 2. Authorize entering into the proposed Interlocai Agreement with Lakehaven Utility District for the So 3202 Street and Pacific Hwy So Widening and Intersection .......................................................................... ............................................................................................................................ .............. CITY MANAGER RECOMMENDATION: Approve Council Committee recommendation. (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL/4 1st Reading Enactment Reading ORDINANCE # RESOLUTION # K:\COUNCIL~AGDBILLS\I999\S 320 & SR 99 - 85% wpd CITY OF~ DATE: TO: FROM: SUB.1ECT: December 1, 1999 Phil Watkins, Chair Land Use/Transportation Committee Ken Miller, Deputy Director MarWan Salloum, Street System Manager So 320~ Street and Pacific Highway So (SR99) Widening and Intersection Improvement Project - 85% Design Status Report Background: The So 320~ Street and SR 99 Widening and Intersection Improvement Project includes adding HOV lanes east and westbound and a second left turn lane on the south, west and east legs of the intersection. The purpose of the project is to improve traffic flow, reduce accidents and promote transit and carpool use. More than 7:~,888 vehicles use the intersection on an average daily basis and the intersection operates at a level of service "F" during the mid-day, evening and weekend peak periods. There have been 193 accidents in the past three years. In an effort to reduce costs and public disruption the following planned projects have been incorporated into the design and will be constructed as part of this project: · Gateway Project (the trellis, landscaping and lighting alternative that was approved by the Downtown Revitalization Committee and the City Council · Downtown Revitalization project ( Utility Underground Conversion within project limit) · Surface Water WH11-CIP-3 Storm Drain Up size Project (Approximately 40% of this SWM project will completed as part of this road project) · Lakehaven Utility District Water and Sewer Utility Adjustment The following provides a brief synopsis of the progress on this project to date. Currently, the project design is approximately 85% complete, which includes the following completed tasks: · The Topographic Surveys · The Geotechnical Investigation · The Environmental Site Assessment (ESA) Phase I & Phase II · SEPA Determination and Project Permitting · NEPA Environmental Classification · Project Design to 85% · Open House Held on September 30, 19~)9 Ongoing tasks include: · Property Negotiations and Acquisition At the open house, Office Max and the property owner were very concerned about "left turn" access from So 3204 Street into the site. After meeting with the owner of the Office Plax site and Wells Fargo Bank, and discussing how this affects business, present and future traffic drculation. It was determined that due to the existing available queue storage length within the west leg of the intersection a "temporary" access could be permitted until the ring road (11m Avenue So) was constructed in the future. This left: tum access eliminates the majority of the landscape island west of SR 99, but will maintain access to the shopping center and the bank until alternate access is provided. Proposed Interlocal Agreement: In an effort to reduce costs, eliminate utility conflicts, and reduce public disruption caused by the project, staff is recommending that the City enter into an Intedocal Agreement (ILA) with Lakehaven Utility District. Please find a copy of the proposed ILA for the referenced water main adjustment/construction attached for your consideration. Staff seeks Council's authorization to enter into this agreement with Lakehaven Utility District. Project Funding: The project is funded as follows: PRO.1ECl' EXPENDITURES Planning and Design Construction Construction Management Underground Conversion (PSE & US West) Right-of-Way Acquisition Total Project Costs FUNDING AVAILABLE Total Grant Funding Mitigation Fund Gateway Project Fund Surface Water Fund Lakehaven Utility District Downtown Revitalization Fund for PSE & US West Underground Conversion Budgeted City Hatching Fund' Total Available Budget $ 312,008 1,653,222 100,000 467,480 349,649 $2,882,359 $1,461,460 213,768 481,994 160,000 61,071 456,480 48,240 .$2,883,013 Includes 10% Contingency This Include the area needed for the Roadway, Gateway, Decorative Lights, and Landscaping to meet City Center Street Design Guidelines (UATA $971,460 and STPUL $490,000) Including $43,688 from Extend Stay America for drainage on So 320th (Gateway Trellis/Landscape & Decorative Lights/Landscape) Part of SWM project WHll-CIP-03 Utility adjustment cost Common Utility Trench cost for utility under grounding (PSE $402,480 & US West $54,000) Recommendation: Place the following items on the December 21 Council consent agenda for approvah 1. Approve the 85% design plans for the So 320~ Street and Pacific Highway So Widening and intersection Improvement Project and proceed with the final design and return to the LUTC committee at the 100% design completion stage for further reports and authorization to bid. 2. Authorization to enter into the proposed Interlocal Agreement with the Lakehaven Utility District for the So 320~ Street and Pacific Highway So Widening and Intersection Improvement Project. cc: Project File Day File K:\LUTC\lg99\s320thS~srg9.85% INTERLOCAL AGREEMENT ~~~ BETWEEN THE CITY OF FEDERAL WAY AND LAKEHAVEN UTILITY DISTRICT FOR THE SOUTH 320TM STREET AND PACIFIC HIGHWAY SOUTH (SR-99) WIDENING AND INTERSECTION IMPROVEMENT PROJECT THIS AGREEMENT is made and entered into by and between the City of Federal Way (hereinafter "City") and Lakehaven Utility District (hereinafter "District"). WHEREAS, the City proposes to proceed with the South 320'h Street and Pacific Highway South (SR-99) widening and Intersection Improvement Project (hereinafter "Project"); and WHEREAS, the District provides Water and sewer service in the general area of the Project in accord with applicable Washington State and City of Federal Way laws, regulations and franchises; and WHEREAS, in connectionwith the roadway improvements being undertaken by the City, the District will be required to relocate certain water and sanitary sewer facilities such as fire hydrants, valves, water meters, etc.; resolve any waterline/utility conflicts; and adjust sewer manholes, within the Project area; and WHEREAS, Chapter 39.34 (Interlocal Cooperation Act)permits local governmental units to make the most efficient use of their powers by enabling them to cooperate with other entities to provide services in a manner best serving the needs and developmentoftheir local communities; and WHEREAS, the District can achieve cost savings and other benefits in the public's interest by contracting with the City to perform certain services for the District, including letting a public works construction contract for the installation of the water improvements in connection with the Project (hereinafter "District Work"), and providing construction management services in support thereof; NOW, THEREFORE, it is hereby covenanted and agreed by and between the Parties hereto as follows: I. DESIGN. The District shall reimburse the City for the reproducible construction drawings, special contract provisions, and other necessary documents, which shall sufficiently detail requirements for the District Work to become a part of the plans and specifications for the Project. The District agrees that design work shall be performed by the City's design contractor, CH2M Hill. II. BIDDING. A. It is the intention of the City and the District that the District plans and Page 1 specifications shall be incorporated into the Contract Bid Documents for the Project in such manner as to allow, to the extent possible, identification of cost allocations between the Parties. B. Following opening of construction bids on the Project, the District shall be furnished with the bid responses submitted for the District Work for the District's approval. Within twenty days of receiving the bid prices, the District shall notify the City in writing that the District either approves or rejects their portion of the bid award. Bid award shall be made to the lowest responsible bidder for the total Project subject to applicable laws and regulations. The City shall not proceed with the District Work until the City has received approval from the District for its portion of the bid award; provided, however: if no bids are received which, in the estimation of the District, are acceptable to the District for the District Work, the District shall so immediately notify the City. The District Work shall be deleted from the project contract and, in this event; the City shall proceed with its portion of the Project. This Interlocal Agreement shall terminate effective the date of the District's notice to the City of the District's rejection of all bids. III. CONTRACT ADMINISTRATION. A. The City shall provide the necessaryadministrative,constructionobservation, and clerical services necessary for the execution of the Project. In providing such services, the City Public Works Director and/or his or her designee may exercise all the powers and perform all the duties vested by law in him or her. The District grants to the City Public Works Director and/or his or her designee authority to act on behalf of the District sufficient to carry out the provisions of this Agreement. B. The District shall furnish a constructionobserver to ensure proper compliance with requirements during installation of the District Work. The District'sconstructionobservershall advise the City of any deficiencies noted. The District's construction observer, however, shall not communicate directly with or instruct the contractor directly on any matters regarding contract performance. C. The District shall notify the City, in writing, of any changes it wishes to make in the plans and specifications which affect the District Work, which changes shall be made, if feasible. The City shall notify the District, in writing, of any changes required of the District Work and shall obtain the District's approval of such changes. The District's approval shall not be unreasonably withheld. The District shall be responsible for all costs incurred, directly or indirectly, as a result of these or any other changes required or requested by the District. IV. PAYMENT. A. The D;,strict shall reimburse the City for all costs incurred by the City in performing the District Work, which costs shall include but are not limited to the District Work performed by the Project contractor(s), all District requested changes, and the District's cost of the City services described in Paragraph III i~) herein, prorated as described in Exhibit A. B. All payments shall be due from the District to the City within thirty (30) days Page 2 of the billing date. Amounts unpaid after thirty (30) days shall accrue interest at a rate of one (I) percent per month. V. INDEMNIFICATION AND HOLD HARMLESS. A. The City agrees to indemnify and hold the District, its elected officials, officers, employees and agents harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising or resulting from, or connected with, this Agreement to the extent caused by the negligent acts, errors or omissions of the City, its agents or employees, or by the City's breach of this Agreement. B. The District agrees to indemnify and hold the City, its elected officials, officers, employees and agents harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons o.r entities, including, without limitation, their respective agents, licensees, or representatives, arising or resulting from, or connected with, this Agreement to the extent caused by the negligent acts, errors or omissions of the District, its agents or employees, or by District's breach of this Agreement. The provisions of this paragraph shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. VI. DURATION. This agreement shall become effective immediately upon execution by both parties. This Agreement shall continue in force until either (1) the District rejects all bids or (2) the City Council accepts the completion of the project, whiChever is earlier. VII. OTHER PROVISIONS. A. The City shall retain ownership and usual maintenance responsibility for the roadway, storm drainage system, sidewalks, landscaping, traffic signals and all other appurtenances related thereto. B. Following completion of the constructionand City's acceptance of the Project as fully constructed according to plans, specifications and change orders, the City shall providea Bill of Sale transferring ownership of the water mains and appurtenances to the District and the District shall thereafter be responsible for maintenance of such facilities. C. This Agreement contains the entire written agreement of the Parties and supersedes all prior discussion. This Agreement may be amended only in writing, signed by both Parties. D. This Agreement shall be in full force and effect from the date of signature by all Parties to the date the City completes the Final Inspection upon completion of the Project and Page 3 may be extended for additional periods of time upon mutual written agreement of the City and District. Adherence to deadline dates is essential to the performance of this lnterlocal Agreement. E. Any provision of this Agreement which is declared invalid, void or illegal shall in no way affect, impair, or invalidate any other provision hereof and such other provisions shall remain in full force and effect. IN CONSIDERATION of the mutual benefit accruing herein, the Parties hereto agree that the work as set forth herein will be performed by the City under the terms of this Agreement. IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and seals the day and year first above written. CITY OF FEDERAL WAY LAKEHAVEN UTILITY DISTRICT David H. Moseley, City Manager General Manager Date Date APPROVED AS TO FORM: APPROVED AS TO FORM: City Attomey, Londi K. Lindell General Counsel, Steven H. Pritchett K:~STREETS~:>RO JECTStS320SR99~s320thSR99.1LA,doc 11/23/99 Page 4 · EXHIBIT "A" SOUTH 320TM STREET AND PACIFIC HIGHWAY SOUTH (SR-99) WIDENING AND INTERSECTION IMPROVEMENT PROJECT ESTIMA TED DESIGN, CONSTRUCTION, AND CONSTRUCTION MANAGEMENT COSTS FOR INCLUDING LAKEHAVEN UTILITY DISTRICT ADJUSTMENTS ESTIMATED DESIGN COST Estimated design costs for Lakehaven utility relocations (CH2M Hill) (Design costs are 10% of construction costs.) ESTIMATED CONSTRUCTION COSTS Mobilization 7% Construction Cost Traffic Control Labor 250 hours @ $28.00/hr. Relocate Water Meter 8 @ $1500.00/ea. Relocate Fire Hydrant 8 @ $ 2500.00/ea. Adjust Sanitary Sewer Manholes 10 @ $350.00/ea. Relocate waterlines/valves to resolve conflicts Est. $5,000.00 $5,082.00 $ 3,325.00 $ 7,000.00 $12.000.00 $20,000.00 $ 3,500.00 $ 5,000.00 Construction Management (10% of total construction cost.) Construction Contingency (10% of total construction cost.) $ 5,082.00 $ 5,082.00 TOTAL ESTIMATED COST FOR UTILITY RELOCATIONS $61,071.00 Note: Costs represented are estimates only. Actual costs incurredwill be used to calculate final cost of Lakehaven Utility District's utility relocation portion for reimbursement to the City. K:~STREETS~RO JECTS~S320SR99~s320thSR99.1LA.doc 11123/99 Page 5 CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: 2000 Commute Trip Reduction Act Interlocal Agreement with King County Metro CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Memorandum to the Land Use and Transportation Committee dated December 2, 1999. SUMMARY/BACKGROUND: Washington State's Commute Trip Reduction (CTR) Law was adopted by the 1991 Legislature and incorporated into the Washington Clean Air Act as RCW 70.94.527. Its intent is to improve air quality, reduce gasoline consumption and traffic congestion through employer-based programs by encouraging the use of alternatives to single occupant vehicle (SOV) for the commute trip. The law requires that all major employers, both public and private, that employ one hundred (100) or more full-time employees scheduled to arrive at a single work site between 6:00 a.m. to 9:00 a.m. to develop and implement a Commute Trip Reduction Plan. The CTR program requires an Interlocal Agreement with King County Metro. The purpose of the Agreement is to allocate to the City its proportionate share of the State technical assistance funding for reimbursing the City for its costs of implementing the commute trip reduction plans. In order to receive the 1999/2001 biennium state allocation, the City needs to renew the Interlocal Agreement with King County Metro as the existing agreement has expired. CITY COUNCIL COMMITTEE RECOMMENDATION: At its December 6, 1999 meeting, the Land Use and Transportation Committee forwarded to the full City Council the staff recommendation to approve the Interlocal Agreement with King County Metro pending the Law Department's review. CITY MANAGER RECOMMENDATION: Approve Council Committee recommendation. APPROVED FOR INCLUSION IN COUNCIL PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION K:\COUNCIL~AGDBILLS\I999X2000 CTR lnterlocal,wpd COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # DATE: TO: FROM: SUBJECT: December 2, 1999 Phil Watkins, Chair Land Use and Transportation Committee A. Perez, Traffic Engineer j~ Richard Sarady Long, Traffic Analyst 2000 Commute Tdp Reduction Act lnterlocal Agreement with King County Metro BACKGROUND Washington State's Commute Trip Reduction (CTR) Law was adopted by the 1991 Legislature and incorporated into the Washington Clean Air Act as RCW 70.94.527. [ts intent is to improve air quality, reduce gasoline consumption and traffic congestion through employer-based programs by encouraging the use of alternatives to single occupant vehicle (SOV) for the commute trip. The law requires that all major employers, both public and private, that employ one hundred (100) or more full-time employees scheduled to arrive at a single work site between 6:00 a.m. to 9:00 a.m. to develop and implement a Commute Trip Reduction Plan. There are currently 14 employers within the City of Federal Way that are affected by the CTR Law: 1. Berger/Abam Engineering* 2. Capital One ' 3. City of Federal Way 4. Orion Industries 5. Reliance Insurance Company 6. St Francis Hospital 7. United States Postal Service 8. USAA Insurance 9. World Vision 10. Weyerhaeuser Company (5 sites) These are new affected sites The CTR program requires an [ntedocal Agreement with King County Metro. The purpose of the Agreement is to allocate the City its proportionate share of the State technical assistance funding for reimbursing the City for its costs of implementing the commute trip reduction plans. In order to receive the :[999/2001 biennium state allocation, the City needs to renew the Interlocal Agreement with King County Hetro as the existing agreement has expired. The state CFR allocations from 1997 to 2000 are shown in the following table: Table ! - CTR Allocations Number of affected State CTR Grant Allocation Year Sites 1/1/97- 12/31/97 12 $25,574.00 1/1/98- 12/31/98 12 $26,193.00 1/1/99- 12/31/99 12 $24,339.00 1/1/00 -/.2/31/00 /.4 $23,328.00 As shown in the above table, the City would receive a total allocation of $23,328 annually for the State fiscal year 2000 and 2001. This allocation is approximately 24 percent less than the previous biennium on a per site basis due to increases in affected sites statewide with no additional state funding. RECOMMENDATION Staff recommends approval of the Interlocal Agreement with King County Metro pending the Law Department's review and forwarding the recommendation to the December 21, 1999 City Council consent agenda. RP:kc K:\LUTC~1999\2000 ctr inteflocal CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: King County Waterworks Grant - Formation of a Hylebos Stream Team CATEGORY: BUDGET IMPACT: X CONSENT RESOLUTION ORDINANCE STAFF REPORT BUSINESS PROCLAMATION HEARING STUDY SESSION FYI OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Memorandum to the Land Use and Transportation Committee dated November 30, 1999 SUMMARY/BACKGROUND: As recently as two decades ago, Hylebos Creek was "one of the most productive small stream systems in Central Puget Sound," according to the 1991 King County Executive Proposed Basin Plan for Hylebos Creek and Lower Puget Sound. "The basin supported annual returns of several thousand adult coho and chum salmon, plus hundreds of chinook salmon, steelhead and cutthroat trout." As urbanization intensified in the watershed salmon populations plummeted in the late 1970s and the 1980s. The City of Federal Way, which contains more than 60 percent of the watershed in its municipal boundaries, has invested over $17 million since 1991 in controlling peak flows and improving water quality through regional stormwater detention and treatment ponds and habitat restoration. Recently, conservationists have joined with the City of Federal Way, four other municipal and two county governments in the watershed, the Puyallup Indian Tribe, the Department of Fish and Wildlife, and the Department of Ecology to form a watershed recovery group known as the Hylebos Watershed Action Committee. The Hylebos Watershed Action Committee recognizes that greater public awareness and stewardship of the creek is needed in order to achieve the goal of restoring native salmon runs. Formation ofa Hylebos Stream Team will create a public awareness program to introduce the community to the salmon stream in their backyard. The Hylebos Stream Team will also focus on increasing public stewardship of Hylebos Creek through several different stream watch efforts. The monitoring program will be coordinated with monitoring programs in place by the City of Federal Way and the Puyallup Tribe. Data collected will be shared with those entities as well as the Hylebos Watershed Action Committee. While the focus of the Stream Team Program will be on overall watershed health, the program will implement a "showcase" re-vegetation project on the North Fork of Hylebos Creek. The native planting project will be carried out mostly through volunteers. The project will have high media visibility and is located on public land. Water quality is a particular concern above the project site as it is home to several light industrial facilities and a truck stop. The native planting project will help reduce sedimentation and water quality and enhance salmon habitat. The Stream Team Program will require a full-time watershed coordinator. In order to fund this position, Hylebos Watershed Action Committee and the City of Federal Way cooperatively applied for a King County Waterworks Grant and have been awarded $40,700.00 with a 10% cash matching requirement. Additional program funding through the .................................................................................................................... CITY COUNCIL COMMITTEE RECOMMENDATION: At its December 6, 1999 meeting, the Land Use and Transportation Committee forwarded to the full City Council the following staff recommendations: I. Authorize the Surface Water Management Division of Public Works to work cooperatively with Friends of the Hylebos and Hylebos Watershed Action Committee in the development of a Hylebos Stream Team and administer the King County Waterworks Grant in the amount of $40,700.00 towards the formation of the Stream Team program. 2. Authorize Surface Water Management to use $4,070.00 from the returned King Conservation District assessment as the ten percent match for King County Waterworks Grant. CITY MANAGER RECOMMENDATION: Approve Council Committee recommendation. APPROVED FOR INCLUSION IN COUNCIL PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION K:\COUNCIL\AGDBILLS\I999\Waterworks Grant - Hylebos.wpd COUNCIL BILL it 1st Reading Enactment Reading ORDINANCE it RESOLUTION it CITY OF FEDERAL WAY MEMORANDUM DATE: TO: FROM: Tuesday, November 30, 1999 Phil Watkins, Chair Land Use/Transportation Committee Darla Wise, Surface Water Quality Coordinator King County Waterworks Grant - Formation of a Hylebos Stream Team Background As recently as two decades ago, Hylebos Creek was "one of the most productive small stream systems in Central Puget Sound," according to the 1991 King County Executive Proposed Basin Plan for Hylebos Creek and Lower Puget Sound. "The basin supported annual returns of several thousand adult coho and chum salmon, plus hundreds of chinook salmon, steelhead and cutthroat trout." As urbanization intensified in the watershed salmon populations plummeted in the late 1970s and the 1980s. The City of Federal Way, which contains more than 60 percent of the watershed in its municipal boundaries, has invested several million dollars since 1991 to control peak flows and improve water quality through regional stormwater detention and treatment ponds and habitat restoration. Recently, conservationists have joined with the City of Federal Way and four other municipal and two county governments in the watershed, the Puyallup Indian Tribe, Department of Fish and Wildlife, and the Department of Ecology to form a watershed recovery group known as the Hylebos Watershed Action Committee. The need for a Hylebos Stream Team to address public outreach and establish a watershed monitoring program has been identified as an early action item by the Hylebos Watershed Action Committee. To fund the Stream Team start up the City of Federal Way and Friends of the Hylebos have worked cooperatively in applying for a King County Waterworks Grant. King County has awarded a Waterworks grant to the partners in the.amount of $40,700 (with a 10% cash match requirement). The cash match will come from money returned to the City by the king Conservation District for the year 1999 - this money was collected by the King Conservation District through their $5.00 per parcel assessment to owners of parcels within the City of Federal Way. The Waterworks Grant is sufficient to cover the program funding for the first year. Subsequent years funding for support and continuation of the Stream Team program will be pursued by the Stream Team Coordinator, Friends of the Hylebos, and Hylebos Watershed Action Committee through various grants available for such purposes. As a note, City staff and members of the Hylebos Watershed Action Committee are currently pursuing additional Stream Team funding through thc Department of Ecology Public Involvement and Education Fund (PIE). The Stream Team program will be implemented by a full-time coordinator and include a public awareness component that will introduce the community to the salmon stream in their backyard. The Hylebos Stream Team will also focus on increasing public stewardship of Hylebos Creek through several different stream watch efforts. The monitoring program will be coordinated with monitoring programs already in place at the City of Federal Way and the Puyallup Tribe. Data collected will be shared with those entities as well as the Hylebos Watershed Action Committee. The program will also include a "showcase" re-vegetation project on the North Fork of Hylebos Creek. The restoration project will have high media visibility and is located on public land. Recommendation Staff recommends that the committee places the following item on the December 21, 1999 Council Agenda for approval: Authorize the Surface Water Management Division of Public Works to work cooperatively with Friends of the Hylebos and Hylebos Watershed Action Committee in the development of a Hylebos Stream Team and administer the King County Waterworks Grant in the amount of $40,700 towards the formation of the Stream Team program. Authorize Surface Water Management to use $4,070.00 from the returned King Conservation District assessment as the 10% match for the King County Waterworks Grant. MEETING DATE: December21, 1999 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Capital Facilities Plan Update: Acceleration of"WH 11-CIP-03 SR99 Storm Drain Upgrade Proiect" CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: 1. Memorandum to the Land Use and Transportation Committee dated December 1, 1999. 2. Exhibits "A" and "B" of the December 1, 1999 memorandum to the Land Use and Transportation Committee. SUMMARY/BACKGROUND: The Surface Water Management (SWM) division is requesting permission to accelerate the WH1 I-C1P-03 SR 99 Storm Drain Upgrade project by three years. The accelerated project will better coordinate with planned construction in the area, provide the facilities necessary to relieve an existing flooding problem, and result in a project cost reduction due to combining the construction of this project with the construction of the SR99 corridor improvements. Because the proposed project acceleration involves a major capital project, SWM is requesting Council authorization to, in effect, reprioritize the project on its Capital Facilities Plan, As a reminder, the SWM Capital Facilities Plan (CFP), included in the City's Comprehensive Plan, provides a plan of attack on the numerous major surface water problems within the City of Federal Way. The CFP lists both sources of revenue and planned expenditures by ranked project - furnishing a long term financial plan for the City's SWM utility. The projects listed on the CFP were ranked using various criteria - including project coordination opportunities. Attached is an analysis of the proposed revision to the current SWM CFP. Exhibit "A" is the current CFP sheet from the City's Comprehensive Plan. Exhibit "B" is the CFP after incorporation of the proposed revision. The proposed change and its impacts are highlighted on Exhibit "B". The proposed project acceleration can be accomplished as suggested by using the unappropriated fund balance in the SWM capital fund. The unappropriated fund balance is currently $478,087.00. This amount will be reduced by $358,681.00 - which is the estimated cost of the project in year 2000 dollars. Should council authorize this acceleration, the money will be transferred from the SWM fund to the street fund for use on the SR99/S320th and the SR99 HOV Lane projects. CITY COUNCIL COMMITTEE RECOMMENDATION: At its December 6, 1999 meeting, the Land Use and Transportation Committee forwarded to the full City Council the staffrecommendation to approve the WH 11-CIP- 03 SR 99 Storm Drain Upgrade Project acceleration. APPROVED FOR INCLUSION IN COUNCIL PACKET: ~ f~ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION K:\COUNCIL~AGDBILLS\I999\WHI I-CIP-03 SR99.~pd COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # CITY OF ~~~~, Date: December 1, 1999 To: From: Subject: Phil Watkins, Chair Land Use and Transportation Committee Jeff Pratt, Surface Water Manager Capital Facilities Plan Update: Acceleration of "WHII-CIP-03 SR99 Storm Drain Upgrade Project" Background: This memo is a request by the Surface Water Management (SWM) division to accelerate the referenced major capital project by three years. The accelerated project will better coordinate with planned construction in the area, provide the facilities necessary to relieve an existing flooding problem, and result in a project cost reduction due to combining the construction of this project with the construction of the SR99 corridor improvements. Because the proposed project acceleration involves a major capital project, SWM is requesting Council authorization to, in effect, reprioritize the project on its Capital Facilities Plan. As a reminder, the SWM Capital Facilities Plan (CFP), included in the City's Comprehensive Plan, provides a plan of attack on the numerous major surface water problems within the City of Federal Way. The CFP lists both sources of revenue and planned expenditures by ranked project - furnishing a long term financial plan for the City's SWM utility. The projects listed on the CFP were ranked using various criteria - including project coordination opportunities. Attached is an analysis of the proposed revision to the current SWM CFP. Exhibit "A" is the current CFP sheet from the City's Comprehensive Plan. Exhibit "B" is the CFP after incorporation of the proposed revision. The proposed change and its impacts are highlighted on Exhibit "B". The proposed project acceleration can be accomplished as suggested by using the unappropriated fund balance in the SWM capital fund. The unappropriated fund balance is currently $478,087.00. This amount will be reduced by $371,235.00 - which is the estimated cost of the project in year 2000 dollars. Should council authorize this acceleration, the money will be transferred from the SWM fund to the street fund for use on the SR99/S320th and the SR99 HOV Lane projects. Recommendation: Staff recommends that the Committee forward a recommendation of approval of the project acceleration to the City Council for consideration at their December 21, 1999 meeting. Attachnlents K X LUTC'~ 1999~wh I tcipOg.acc MEETING DATE: December 21, 1999 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Contract Renewal/American Janitorial Services CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ SUMMARY/BACKGROUND: Dumas Bay Centre/Knutzen Family Theatre contracted with a janitorial company to provide cleaning, linen and room setup services. The current contract is valid through December 31, 1999. Staff issued a bid for services using businesses on the small works roster. Two companies submitted bids, Professional Commercial Cleaning and American Janitorial Services. The bid document requests companies provide hourly charges for general cleaning of the facility, conference room setup, linen service, and carpet, window and floor cleaning. Staff reviewed the bids and recommends the City contract with American Janitorial Services. Staff recommends entering into a three year contract to stabilize janitorial costs. Although cleaning charges will fluctuate based on facility usage, the following charges are estimated for the next three years: 2000 - $90,400; 2001 - $99,400; 2002 - $108,400. The total P P: .................................................................................................................................. CITY COUNCIL COMMITTEE RECOMMENDATION: On December 15, 1999, the Finance/Economic Development & Regional Affairs passed a motion to approve the bid submitted from American Janitorial Services at Dumas Bay Centre and authorized the City Manager to initiate a three year contract for custodial and linen service. APPROVED FOR INCLUSION IN COUNCIL PACKET: ~'~).,~/19 ~-'_~"L (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1 st Reading Enactment Reading ORDINANCE # RESOLUTION # I:\COVERCC-5/14/96 CITY OF FEDERAL WAY CITY COUNCIL FINANCE AND ECONOMIC DEVELOPMENT AND REGIONAL AFFAIRS COMMITTEE Date: From: Subject: December 9, 1999 Mary Faber, Recreation and Cultural Services Manager Contract Renewal for American Janitorial Services Background: Dumas Bay CentredI~utzen Family Theatre contract with a janitorial company to provide cleaning, linen and room set-up services at Dumas Bay Centre and Knutzen Family Theatre. The current contract is valid thru December 31, 1999. Staffissued a bid for services using businesses on the small works roster. Two companies submitted bids, Professional Commercial Cleaning and American Janitorial Services. The bid document requests companies provide hourly charges for general cleaning of the facility, conference room set-up, linen service, and carpet, window and floor cleaning. Staff reviewed the bids and recommends the City contract with American Janitorial Services. Staffrecommends entering into a three year contract to stabilize janitorial costs. Although cleaning charges will fluctuate based on facility usage, the following charges are estimated for the next three years: 2000 $90,400 2001 $99,400 2002 $108,400 The total amount of the three year contract would be $298,200. The bid evaluation materials are included for review. Committee Recommendation: Approve the bid submitted fi.om American Janitorial Services at Dumas Bay Centre and authorize the City Manager initiate a three year contract for custodial and linen service. [C°mmitt~eChair ' Cdmm,ttee b~mber G:\CLERIGCMTE. REC 3/11/96 CITY OF FEDERAL WAY SMALL WORKS ROSTER QUOTE SHEET FOR DBC/KFT - CUSTODIAL AND HOUSEKEEPING SERVICES Ad.ess: , 6Zq. `+k Telephon .~".~) /'o,~3C~_- 2.qOO FaxNumber: Please quote the following options based upon Washington State Public Works Act RCW (39.12), Prevailing Wage Rate and the attdched standards. Contractor to furnish all necessary labor, equipment, and materials. Dally/weekly custodial services l st and 2nd floor cleaning -: (includes all janitorial except for items described in Knutzen Family Theatre cleaning and Basement) Hours per week }q X Cost per hour ]~.(o0 = Total monthly custodial service ]Ol~,~0 Basement area cleaning Hours per week X Cost per hour l(.o./o 6 = Total monthly custodial service I q9.q o Knutzen Family Theatre cleaning- (Theatre, Lobby, rehersal hall, restrooms closest to the Theatre) Hours per week V X Cost per hour ] {¢./pC) = Total monthly custodial service __etreat Custodial, set up and cleanup cost ? - _'2.._~'~3 Cost per retreat room for set up and clean up q 9~0 Cost per day for retreat shower, bath and toilet facility cleanup and sanitazation ~Bed linen cost- 1 flat sheet, I fitted sheet, (or 2 flat sheets) 2 pillow covers & 1 mattress pad I ('5, OO DBC bed blanket cleaning per blanket o 20 Bath linen cost - pcr room - 1 face towel (12xl2), 1 hand towel (15x25), 1 bath towel (22x48). All sizes are a minimum standard. General Custodial Maintenance CARPET EXTRACTING AND CLEANING COST /V~, ~ Banquet 3 & 4, 7~ CO Banquet 1 or 2, .'7:~. OO Conference 1, ,.~?,..9''°O Meeting lor2,,.~5'CO Theatre, ,~7.~'°° all overnight rooms, 2c/°b Hallways entering each banquet room, ..~-oO fgont entrance m~d lobby area. Please describe thc cleaning methods used in extracting the carpet and your cost for window cleaning for entire building inside and out. ~, .cost for stripping and waxing all hard surface floors Please return this quote ~ofFederal Way, Attention: Rob Ettinger, 3200 SW Dash Point Road, Federal Way, WA 98023 by 7 Ve~k~- Name: CITY OF FEDERAL WAY SMALL WORKS ROSTER QUOTE SHEET FOR DBC/KFT - CUSTODIAL AND HOUSEKEEPING SERVICES O . 1 o× 57511 Ple~ ~ ~ fo~o~ ~fi~ b~ ~ W~ ~ ~c W~ Act D~e~ ~ s~ ~u~ F~y ~ ~l~g- ~, Lobby, reh~ hall, ~ el~ to R~ C~ s~ ~ ~d ~p ~ 3 ~Oe.~ C~ ~ ~y for ~t show~, ba~ ~ tofl~ f~ili~ el~up ~d ~on ~ [~ B~l~m~a-~m-1 la, towel (12x12), 1 h~dtowel(15~5), I ba~el (22x48). minim~ ~d~. Genii Cust~ial M~n~nanee ~ ~~ · C~~CT~G~C~GCOST ~l[ ~ ~q~3 I, .. ~g 1 or 2, ~ea~, ~ overt ~, Hfllways ~g ~eh b~qu~ r~ ~nt ~ ~d lobby ~a. PI~ ~ ~ el~g ~ ~ ~ e~g ~e ~t ~ yom ,.~ ~/~0, ~) cost for window cleaning for ent/r¢ bu/ld/ng/ns/de m~d out. (0 ( ~o~ ~)0 ~ ~-c~--- ~t ~ t~', '~'~. a~'. ~ ~t~st for stripping and waxing all hard surface floors ~ ~-A"t~/t~3~ ~a ~t4Q~ ~F& 0 IS'~]. Please return this quote to the City of Federal Way, Attention: Rob Ettinger, 3200 SW Dash Point Road, Federal Way, WA 98023 i: November 24, 1999, 2:00 pmc S . f'au Date November 23, 1999 Rob Ettinger, Conference Coordinator City of Federal Way 3200 SW Dash Point Road Federal Way, WA 98023 Dear Mr. Ettinger: Names of the individuals who will be supervising the project and their areas of responsibility are: 1. Bob Fritz, Owner & General Manager of all facilities 2. Yvonne Giron, Retreat Custodial Manager 3. Eric Shoopman, Assistant Manager of all facilities American Janitorial Services Personnel are aH highly skilled and trained professionals in the field of Building Maintenance and Sanitation of all facilities. Our blood borne pathogen training consists of literature provided to all personnel to educate them on these situations that may be encountered in the workplace. We also have a form that they sign stating they understand the information that has been provided to then~ We also follow-up with on-site supervision to make sure these precautions are strictly adhered to. Our training consists of on the job experience coupled with supervision at all facilities. Our training of management also entailed BSCA (Building Service Contractors of America) seminars and eighteen years of field experience. We also keep our personnel abreast of the most modem techniques and proven chemical usage for effectiveness especially in the area of disinfecting against a broad spectrum of gram negative and gram positive organisms. American Janitorial Service's building orientation consists of six years experience for both Bob Fritz and Yvonne Giron since the opening of Dumas Bay Centre. Bob Fritz in conjunction with Rob Ettinger were instrumental in devising and implementing the facilities' maintenance needs. American Janitorial Service personnel have consistently and successfully executed all contractual obligations at Dumas Bay Centre for all janitorial and housekeeping services for the past three years. AMERICAN JANITORIAl, SERVICES PO BOX 5311 KENT, WA 98064-5311 (253) 854-0433 BUSINESS REFERENCES: Dumas Bay Centre City of Federal Way 3200 SW Dash Point Rd Federal Way, WA 98023-2399 Rob Etfinger (253) 835-2000 Les Schwab Tires 758 N. Central Kent, WA 98032 Ken Dessert (253) 852-2950 Kinko's Tukwila 112 Andover Park East Tukwila, WA 98188 John G. Stebbins (206) 244-8884 LINEN FIRM REFERENCE: Western Linen 400 N. 36th, P.O. Box 31547 Seattle, WA 98103 Brian Smithson Loli McDowell 1-800-838-3878 MEETING DATE: 12/21/99 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ -0- Expenditure Amt: $ -0- Contingency Reqd: $ -0- ATTACHMENTS: Draft documents necessary to adopt a 401 (a) plan including: Money Purchase Plan Resolution, Declaration of Trust of ICMA Retirement Trust, and a Money Purchase Plan & Trust Basic Document. These are currently under review by the Law department. Final copies will be available for your review at the 12/21 Council meeting or sooner. We do not expect any material changes at that time. SUMMARY/BACKGROUND: Replacing the 457 deferred compensation plan currently included in the City Manager contract with a new 401(a) deferred compensation plan will allow additional voluntary deferrals by the City Manager. No additional cost to the City, nor compensation paid to the City Manager by the City, will result. CITY COUNCIL COMMITTEE RECOMMENDATION: Adopt a resolution to establish a 401(a) deferred compensation plan for the City Manager, and execute the necessary plan documents. CITY MANAGER RECOMMENDATION: N/A APPROVED FOIt, INCLUSION IN COUNCIL PACKET: Z./~) /./,. /3/}~Yq.-~ (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # I:\COVERCC-5/14/96 CITY OF FEDERAL WAY MEMORANDUM Date: To: From: Subject: December 9, 1999 Finance, Economic Development and Regional Affairs Committee Mary McDougal, Human Resources Manager 401 (a) Deferred Compensation Plan Background: During initial contract negotiations with the City Manager, David Moseley, he expressed interest in a 401(a) deferred compensation plan. The City did not have the necessary information to determine whether this would be possible, and due to time constraints, agreement was reached which included City contributions on the City Manager's behalf to the current 457 deferred compensation plan. Since then, the City has received and reviewed information and has determined that it would be possible to implement a 401 (a) deferred compensation plan for the City's contributions on behalf of the City Manager. All administrative costs would be borne by the City Manager- there would be no additional cost to the City, nor additional compensation provided to the City Manager over the current agreement. Instead, implementing a 401(a) plan would allow the City Manager to defer additional compensation on a voluntary basis to the City's 457 deferred compensation plan. This requires a change to the City Manager contract to delete the reference to the 457 deferred compensation plan, adoption of a resolution to establish a 401 (a) plan, and execution of the necessary plan documents. Attached for your review are the draft documents necessary to adopt a 401 (a) plan for the City Manager. These are currently under review by the Law department. Final copies will be available for your review at the 12/21 City Council meeting or sooner. We do not expect any material changes at that time. FEDRA C Committee Action: Recommend that the City Council amend the City Manager contract to delete the reference to the 457 deferred compensation plan, adopt a resolution to establish a 401(a) plan for the City Manager, and execute the necessary plan documents. APPROVAL OF COMMITTEE ACTION: RESOLUTION FOR A LEGISLATIVE BODY RELATING TO A MONEY PURCHASE PLAN RESOLUTION OF (EMPLOYER NAME). WHEREAS, the Employer has employees rendering valuable services; and WHEREAS, the establishment of a money p,urchase retirement plan benefits employees by providing funds for retirement and funds for their beneficiaries in the event of death.; aqd... ~ ~ ':[,. _ ~:-~ WHEREAS, the Employer desires that its money purchase~re er~klD~"~o~inistered by the ,CMA Retirement Corporation and that the funds held such plan b _g~ie~he ICMA Retirement Trust, a trust established by public employers for the collective investmerfl~l;~U~ds held under their retirement and deferred compensation plans: NOW THEREFORE BE IT RESOLVED that the Employer hereby establishes or has established a money purchase retirement plan (the 'Plan") in the form of: (Select one) The ICMA Retirement Corporation Governmental Money Purchase & Trust, pursuant to the specific provisions of the Adoption Agreement (executed copy attached hereto). [3 The Plan and Trust provided by the Employer (executed copy attached hereto). The Plan shall be maintained for the exclusive benefit of eligible employees and their beneficiaries; and BE IT FURTHER RESOLVED that the Employer hereby executes the Declaration of Trust of the ICMA Retirement Trust, and attached hereto, intending this execution to be operative with respect to any retirement or deferred compensation plan subsequently established by the Employer, if the assets of the plan are to be invested in the ICMA Retirement Trust. BE IT FURTHER RESOLVED that the Employer hereby agrees to serve as trustee under the Plan and to invest funds held under the Plan in the ICMA Retirement Trust; and BE IT FURTHER that the (use title of official, not name) shall be the coordinator for the Plan; shall receive reports, notices, etc., from the ICMA Retirement Corporation or the ICMA Retirement Trust; shall cast, on behalf of the Employer, any required votes under the IrMA Retirement Trust; may delegate any administrative duties relating to the Plan to appropriate departments; and BE IT FURTHER RESOLVED that the Employer hereby authorizes (use title not name) to execute all necessary agreements with the ICMA Retirement Corporation incidental to the administration of the Plan. Clerk of the (City, County, etc.) of certify that the foregoing resolution proposed by (Council Member, Trustee, etc.) of County, etc.) of AYES: NAYS: ABSENT: (SEAL) ., do hereby , was duly passed and adopted by the (Council, Board, etc.) of the (City, at a regular meeting thereof assembled this day of ,1999, by the following vote: ICMA Retirement Corporation ° P. O. Box 96220 ° Washington, DC 20090-6220 ° 1o800-326-7272 DECLARATION OF TRUST OF ICMA F~ETIREMENT TRUST ARTICLE i. NAME AND DEFINITIONS Section 1.1 Name: The name of the trust created hereby is the ICMA Retirement Trust. Sec-don 1.2 Definitions: Wherever they are used herein, the following terms shall have The following respective meanings: {a) By-laws. The by-laws referred to in Section 4.1 hereof, as amended from time to Time: Deferred Compensation Plan. A deferred co ~qpensation plan established and maintained by a Public Employer for the purpo:;e of providing retirement income and other deferred benefrts to its employees in accordance with the provision of section 457 of the Internal Revenue Code Employees. Those employees who participate in Qualified Plans and/or Deferred Compensation Plans. (d) (e) Employer Trust. A trust created pursuant .to ~.n agreement between RC and a Public Employer, or an agreement between RC and a Public Employer for administrative services that is not a trust, in either case tor the purpose of investing and admini~ering the funds set aside by such Employer in connection with i~s Deferred Compensation agreements with its .employees or in connection with i~s Qualified Plan. inv~ent Contract. A non-negotiable contract entered into by the Retirement Trust with a financial institution that provides for a fixed rate of return on investment. '(f) ICMA. The International City/County Management Association. (g) ICMA Trustees. Those Trustees elected by the Public Employers in accordance' wi~h the provisions of Section 3.1(a) hereof, who are also members or former members of the Exec~ive Board of ICMA. (ti) (il (I) RC Trustees. Those Trustees elected by the Public Emplovers who, in accordance with the provisions of Section 3.1 (a) hereof, are also member : former members of the Board of Directors of RC. Internal Revenue Code..The Internal Revenue Code of 1986, as amended. Investment Adviser. The Investment Adviser that enters into a contract with the Retirement Trust to provide advice with respect to investment of the Trust Property. Portfolios. The separate commingled pools of investment established by the Investment Adviser to the Retirement Trust, under the supervision of The Trustees, for the purpose of providing investments for the Trust ProperS/. Public Employee Trustees. Those Trustees elected by the Public Employers who, in accordance with the provision of Section 3.1 (a) hereof, are full-time employees of Public Employers. (m) Public Employer Trustees. Public Employers who serve as trustees of the '- Qualified.Plans or Deferred Compensation Plans. (n) (o) (p) Iq) Ir) (s) Public Employer. A unit of state or local government, or any agency or instrumentality thereof, that has adopted a Deferred Compensation Plan o Qualified Plan and has executed this Declaration of Trust. Qualified Plan. A plan that is sponsored by a Pt~blic Employer for the purpose of providing retirement income to its employees and that satisfies the qualification requirements of Section 401 of the Internal Revenue Code. Public Employer Trust. A trust that is established by a Public Employer in connection with its Qualified Plan and that satisfies the requirements of Section 501 of the Internal Revenue Code, or a trust established by- a_ Public Employer in connection wi~h its Deferred Compensation Plan and that satisfies the requirements of Section 457(b) of the Internal Revenue Code. - PC. The International City Management Association Retirement Corporation. Retirement Trust. The Trust created by this Declaration of Trust. Trust Property. The amounts held in the Retirement Trust as provided in Section 2.3. The Trust Property shall include any income resulting from the investment to the amounts so held. Trustees. The Public Employee Trustees, ICMA Trustees and RC Trustees elected by the Public Employers to s~r~ as members of the Board of Trustees of the Retirement Trust. ARTICLE II. CRF_~TION AND PURPOSE OF THE TRUST; OWNERSHIP OF TRUST PROPERTY Section 2.1 Creation: (a) The Retirement Trust was created by the execution of this Declaration of Trust by the initial Trustees and Public Employers and is established with respect to each participating Public Employer by adoption of this Declaration of Trust. (b) The Retirement Trust is,hereby expressly made a part of the appropriate Qualified Plan or Deferred Compensation Plan of each Public Employer that executes or has executed this Declaration of Trust. Section 2.2 Purpose and Participation: (a) The purpose of the Retirement Trust is to provide for the commingled investment of funds held by the Public Employers in connection with their Deferred Compensation and Qualified Plans. The Trust Property shall be ~¢3ves~ed in the Port-folios, in Investment Contracts, and in other investments recommended by the Investment Adviser under the supervision of the Board of Trustees. No part of the Trust Properp¢ will be invested in securities issued by Public Employers. ~ ~ lb) Participation in the Retirement Trust is limited to [i} pension and profit-sharing trusts which are maintained by Public Employers and that are exempt under sebtion 501(a) of the Internal Revenue Code because the Qualified Plans related thereto qualify under section 401(a) of the Internal Revenue Code and (ii) deferred compensation plans maintained by Public Employers under Section 457 of the Internal Revenue Code land trusts maintained by such Public Employers in connection with ~uch 457 plans). Section 2.3 Ownership of Trust ProperS: (a) The Trustees shall have legal dl:le 1:o the Trust Properb/. The Trust Property shall be held as follows: (i) for the Public Employer Trustees for the exclusive benefit of the Employees; or (ii) in the case of a Deferred Compensation Plan maintained by a Public Employer that has not es~blished a Public Employer Trust for the plan, for the Public Employer as beneficial owner of the plan's assets. (b) The portion of the corpus and income of the Retirement Trust that equ~ably belongs to any Public Employer Trust may not be used for or diverted to any purpose other than for the exclusive benefit of the Employees {or their beneficiaries) who entitled to benefits under such Public Employer Trust. lc) No employer's-Public Employer Trust may assign any part of its equity or inter~st in the Retirement Trust, and any.purported assignment of such equity or interest shall be void. ARTICLE !11. TRUSTEES Section 3.1 Number and Qualification of Trustees: la)The Board of Trustees shall consist of nine Trustees. Five of the Trustees shall be full-time employees of a Public Employer (the Public Employee Trustees) who are authorized by such Public Employer to serve as Trustee. The remaining four Trustees shall consist of two persons .who, at the time of election to the Board of Trustees, are members or former members of the Executive Board of ICMA, and two persons who, at the time of election, are members or former members of the Board of Directors of RC. One of the ICMA Trustees and one of the RC Trustees shall, at the time of election, be full-time employees of Public Employers. th) No person may serve as a Trustee for more than two terms in any ten-year period. Section 3.2 Election and Term: la) Except for the Trustees appointed to fill vacancie- pursuant to Section 3.5 hereof, the Trustees shall be elected by a vote of a majori of the voting Public Employers in accordance with the procedures set forth in the By-Laws. (b) At the first election of Trustees, three Trustees shall be elected for a term of three years, three Trustees shall be elected for a term of Two years and three Trustees shall be elected for a term of one year. At each subsequent election, three Trustees shall be elected, each to serve for a term of three years and until his or her successor is ~le~ted and qualified. Section 3.3 Nominations: The Trustees who are full-time employees of Public Employers shall serve as the Nominating Committee for the Public Employee Trustee~. 'fine Nominating Commit-tee shall choose candidates for Public Employee Trustee in accordance with the procedures set fo~h in the By-Laws. Section :3.4 Resignation and Removal: la) Any Trustee may resign as Trustee (without need for prior or subsequent accounting) by an instrument in writing signed by the Tru~ee and delivered to the other Trustees and such resignation shall be effective upon such delivery, 'or at a later date according to the terms of the instrument. Any of the Trustees may be removed for cause, by a vote of a majority of the Public Employers.' (b) Each Public Employee TrusTee shall resi~;T¢~ bis or her posftion as Trustee withir sixty days of the date on which he or she ceases to be a full-time employee of ~ Public Employer. Section 3.5 Vacancies: The term of office of a Trustee shall terminate and a vacancy shall occur in the event of his or her death, resignation, removal, adjudicated incompetence or other incapacity to perform the duties of the office of a Trustee. in the case of a vacancy, the remaining Trustees shall appoint such person as they in their discretion shall see fit (subject to the limitations set forth in this Section), to serve for the unexpired portion of the term of the Trustee who has resigned or otherwise ceased to be a Trustee. The appointment shall be made by a written instrument signed by a majority of the TrUstees. The person appointed l,~ust be the same type of Trustee (i.e., Public Employee Trustee, ICMA Trustee or F.C Trustee) as the person who has ce'ased to be a Trustee. An appointment of a Truslee may be made in anticipation of a vacancy to occur at a later date by reason of ~etirement or resignation, provided that such appointment shall not become effective prior to such retirement or resignation. Whenever a vacancy shall occur, until such vacancy is filled as provided in this Section' :3.5, the Trustees in office, regardless of their number, shall have all the powers gran.ted to the Trustees 'and shall disc large all the duties imposed upon the Trustees by this Declaration. A written instru nent certifying the existence of a vacancy signed by a majority of the Trustees sh311 be conclusive evidence of the existence of such .vacancy. ~ . Section 3.6 Trustees Serve in Representative Capacity: BV executing this Declaration, each Public Employer agrees that th~ Public Employe~: Trustees elected by the Public Employers are authorized to act as agents and repre ;entatives of the Public Employers colleotively. ARTICLE IV. POWERS OF TRUSTEES Section 4.1 General Powers: The Trustees shall have the power to conduct the business of the Trust and to carry on its operations. Such power shall include~ but shall not be limited to, the power to: (a) receive the Trust Property from the Public Employers, Public Employer Trustees or the trustee or administrator under any Employer Trust; (b) enter into a contract with an Investment Adviser providing, among other things, for the establishment and operation of the Portfolios, selection of the Investment Contracts in which the Trust Property may be invested, selection of the other investments for the Trust Property and the payment of reasonable fees to the investment Adviser and to any sub-investment adviser retained by the Investment Adviser; (d) (e) (f) (h) review annually the performance of the Investment Adviser and appro,,e annually the contract with such Investment Adviser; invest and reinvest the Trust Proper~ in the P~>r~olios, the Investment Contracts and in any other investment recommended by the InveStment Adviser, but not including securities issued by Public Employers, provided that if a Public Employer has directed that its monies be invested in one or more specified Portfolios or in .an Investment Contract, the Trustees of the Retirement Trust shall invest such monies in accordance w~th such directions; keep such portion of the Trust Property in cash or cash balances as the Trustees, from time to time, may deem to be in the best interest of the Retirement Trust created hereby without liability for interest thereon; accept and retain for such time as they may deem advisable any securities or other property received or acquired by them as Trustees hereunder, whether or not such securities or other property would normally be purchased as investment hereunder; cause any securities or other property held as part of the Trust Property to be registered in the name of the Retirement Trust or in the name of a nominee, and to hold any investments in bearer form, but the books and records of the Trustees shall at all times show that all such investments are a par[ of t! Trust Property; make, execute, acknowledge, and deliver any ~a'nd all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted; vote upon any stock, bonds, or other securities; give general or special proxies or powers of a~torney with or without power of substitution; exercise any conversion privileges, subscription rights, or other options, and make any payments incidental thereto; oppose, or consent to, or otherwise participate in, corporate reorganizations or to other changes affecting corporate securizies, and delegate discretionary powers and pay any assessments or charges in connexion therewith; and generally exercise any of the powers of an owner with respect to stocks, bonds, securities or other property held as part of the Trust Property; enter into contracts or arrangements for goods or services required in connection with the operation of the Retirement Trust, including, but not limited to, contracts with custodians and contracts for the provision of administrative services; (k) (mi (n) (o) (pi (q) (r) (si (u) borrow or raise money for the purposes of the Retirement Trust in such amount, and upon such terms and conditions, as the Trustees shall deem advisable, provided that The aggregate amount of such borrowings shall not exceed 30% of the value of the Trust Property. No person lending money to the Tru~ees shall be bound to see the application of the money lent or to inquire into its validity, expediency' or propriety or any such borrowing; incur reasonable expenses as required for the operation of the Retirement Trust and deduct such expenses from of the Trust Property; pay expenses properly allocable to the Trust Property incurred in connec"don wffh the Deferred Compensation Plans, Qualified Plans, or the Employer Trusts and deduct such expenses from that portion of the Trust Property to which such expenses are properly allocable; pay oLrt of the Trust Property all real and personal properly taxes, income ta×es and other taxes of any and all kinds which, in the opinion of the Trustees, are properly levied, or assessed under existing or fLr[ure laws upon, or in respect of, the Trust Property and allocate any such taxes to the appropriate accounts; adopt, 'amend and repeal the By-laws, provided that such By-laws are at all times consistent with the terms of this Declaration of Trust; en employ persons to make available interests in the Retirement Trust to employers eligible to maintain a Deferred Compensation Plan under Section 457 or a Qualified Plan under Section 401 of the Internal Revenue Code; issue the Annual Repor~ of the Retirement Trust. and the disclosure documents and other literature used by the Retirement Trust; in addition to conducting ~e investment program authorized in Section 4.1 (d), make loans, including the purchase of debt obligations, provided that all such loans shall bear interest at the current market rate; contract for, and delegate any powers granted hereunder to, such officers, agents, employees, auditors and attorneys as the Trustees may select. provided that the Trustees may not delegate the powers set forth in paragraphs (bi, lc) and (o) of this So.ion 4.1 and may not delegate any powers if such delegation would violate their fiduciary duties; provide for the indemnification of the Officers and Trustees of the Retirement Trust and purchase fiduciary insurance; maintain books and records, including separate' accounts Employer, Public Employer Trustee or Employer Trust and for each Public such additional separate accounts as are required under, and consistent 'with, the Deferred Compensation or Qualified Plan of each Public Employer; and (v) do ali such acts, take all such proceedings, and e~ercise all such rights and privileges, although not specifically mentioned herein, as the Trustees may deem necessary or appropriate to administer the Trust Property and to carry out the purposes of the Retirement Trust. Section 4.2 Distribution of Trust Property: Distributions of the Trust property shall be made to, or on behalf of, the Public Employer or Public Employer Trustee, in accordance with the terms of the Deferred .Compensation Plans, Qualified Plans or Employer Trusts. The Trustees of the Retirement Trust shall be fully protected in making payments in accordance wil:h the directions of the Public Employers, Public Employer Trustees or trustees or administrators of any Employer Trust without ascen:aining whether such payments are in compliance with the provisions of the applicable Deferred Compensation or Qualified Plan or Employer Trust. Section 4.3 Execution of Instruments: The Trustees may unanimously designate any one or more of the Trustees to execute any instrument or document on behalf of all, ihcluding but not limited to the signing or endorsement of any check and the signing of any applications, insurance and other contracts, and the action of such designated Trustee or Trustees shall have the same force and effect as if taken by all the Trustees. ARTICLE V. DUTY OF CARE AND LIABILITY OF TRUSTEES Section 5.1 Duty of Care: In exercising the powers hereinbefore granted to the Trustees, the Trustees shall perform all acts within their authority for the exclusive purpose of providing benefits for the Public Employers in connection with non-trusteed Deferred Compensation Plans and for the Public Employer Trustees, and shall per-form such acts with the care, skill, prudence and diligence in the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. Section 5.2 Liability: The Trustees shall not be liable for any mistake of judgment or other action taken in good faith, and for any action taken or omitted in reliance in good faith upon the books of account or other records of the Retirement 'l'rust, upon the opinion of counsel, or upon reports made to the Retirement Trust by any of its officers, employees or agents or by the Investment Adviser or any sub-investment adviser, accountant, appraiser or other expert or consuttant selected with reasonable care by the Trustees, officers or employees of the Retirement Trust. The Trustees shaft also not be liable for any loss sustained by the Trust Property by reason of any investment made in good faffh and in accordance with the standard of care set forth in Section 5.1. ., Section 5.3 Bond: No Trustee shall be obligated to .~ive any bond or other security for The performance of any of his or her duties hereunder. ARTICLE VI. ANNUAL REPORT TO SHAREHOLDERS The Trustees shall annually submit to the Public Employers and Public Employer Trustees a written report of the transactions of the Retirement Trust, including financial statements which shall be certified by independent public accountants chosen by the Trustees. : ARTICLE VII. DURATION OR AMENDMENT OF RET1REMt~NT TRUST Section 7.1 Withdrawah A Public Employer or Public Employer Trustee may, at any time, withdraw from this Retirement Trust by delivering tc the Board of Trustees a written statement of withdrawal, in such statement, the Pui~lic Employer or Public Employer Trustee shall acknowledge that the Trust Property allocable to the Public Employer is derived from compensation deferred by employees of such Public Employer pursuant to its Deferred Compensation Plan or from ;ontributions to the accounts of Employees pursuant to a Qualified Plan, and shall desigr~ate the financial institution Cb which such property shall be transferred by the ;'rustees of the Retirement Trust or by the trustee or administrator under an Employer Trust. Section 7.2 Duration: The Retirement Trust shall continue ~;ntil terminated by the vote Of a majority of the Public Employers, each casting one v~te. Upon termination, ail of the Trust Property shall be paid out to the Public Employ~ rs, Public Employer Trustees or the trustees or administrators of the Employer Trusts, ~s appropriate. ' Section 7.3 Amendment: The Retirement Trust may be am.-~nded by the vote of a majority of the Public Employers, each casting one vote. Section-7~4 Procedure: A resolution to terminate or amend the Retirement Trust or to remove a Trustee shall be subm~ed to a vote of the Public Employers if: (i) a majority of the Trustees so direct, or; (ii) a petition requesting a vote signed by not less than 25 percent.of the Public Employers, is submitted to the Trustees. ARTICLE VIii. MISCELLANEOUS Section 8.1 Governing Law: Except as otherwise required by state or local law, this Declaration of Trust and the Retirement Trust hereby crea[ed shall be construed and .regulated by the laws of the District of Columbia. Section 8.2 Counterparts: This Declaration may be executed by the Public Employers and Trustees in two or more counterparts, each of which shall be deemed an original bert all of which together shall constftuze one and the same instrument. ICMA RETIREMENT CORPORATION GOVERNMENTAL MONEY PURCHASE PLAN & TRUST ADOPTION AGREEMENT The Employer hereby establishes a Money Purchase Plan and Trust to be known as This Plan is an amendment and restatement of an existing defined contribution money purchase plan. Yes No If yes, please specify the name of the defined contributior. this Plan hereby amends and restates: se plan which III. Employer: The Effective Date of the Plan shall be the first day of the Plan Year during which the Employer adopts the Plan, unless an alternate Effective Date is hereby specified: Plan Year will mean: () () The twelve (12) consecutive month period which coincides with the limitation year. (See Section 5.040) of the Plan.) The twelve (12) consecutive month period commencing on and each anniversary thereof. Normal Retirement Age shall be age __ ELIGIBILITY REQUIREMENTS: 1. (not to exceed age 65). The following group or groups of Employees are eligible to participate in the Plan: MPP Adoption Agreement 03/25/98 All Employees All Full-Time Employees Salaried Employees Non-union Employees Management Employees Public Safety Employees General Employees Other (specify below) VI. The group specified must correspond to a group of the same designation that is defined in the statutes, ordinances, rules, regulations, personnel manuals or other material in effect in the state or locality of the Employer. The Employer hereby waives or reduces the requirement of a twelve (12) month Period of Service for participation. The required Period of Service shall be __ (write N/A if an Employee is eligible to participate upon employment). If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment Classification. A minimum age requirement is hereby specified for eligibility to participate. The minimum age requirement is __ (not to exceed age 21. Write N/A if no minimum age is declared.) CONTRIBUTION PROVISIONS 1. The Employer shall contribute as follows (choose one): () Fixed Employer Contributions With Or Without Mandatory Participant Contributions. The Employer shall contribute on behalf of each Par- ticipant ~ % of Earnings or $~ for the Plan Year (subject to the limitations of Article V of the Plan). Each Participant is required to contribute __ % of Earnings or $__ for the Plan Year as a condition of participation in the Plan. (Write "0" if no contribution is required.) If Participant Contributions are required under this option, a Participant shall not have the right to discontinue or vary the rate of'such contributions after becoming a Plan Participant. MPP Adoption Agreement 03/25/98 The Employer hereby elects to "pick up" the Mandatory/Required Participant Contribution. Yes No. [Note to Employer: A determination letter issued to an adopting Employer is not a ruling by the Internal Revenue Service that Participant contributions that are picked up by the Employer are not includable in the Participant's gross income for federal income tax purposes. The Employer may seek such a ruling. Picked up contributions are excludable from the Participant's gross income under section 414(h)(2) of the Internal Revenue. Code of 1986 only if they meet the requirements of Rev. Rul. 81-35, 1981-1 C.B. 255. Those requirements are (1) that the Employer must specify that the contributions, although designated as employee contributions, are being paid by the Employer in lieu of contributions by the employee; and (2) the employee must not have the option of receiving the contributed amounts directly instead of having them paid by the Employer to the plan.] ( ) Fixed Employer Match of Participant Contributions. The Employer shall contribute on behalf of each Participant % of Earnings for the Plan Year (subject to the limitations of Article V of the Plan) for each Plan Year that such Participant has contributed ~% of Earnings or $~ Under this option, there is a single, fixed rate of Employer contributions, but a Participant may decline to make the required Participant contributions in any Plan Year, in which case no Employer contribution will be made on the Participant's behalf in that Plan Year. () Variable Employer Match Of Participant Con- tributions. The Employer shall contribute on behalf of each Par- ticipant an amount determined as follows (subject to the limitations of Article V of the Plan): , % of the contributions made by the Participant for the Plan Year (not including Participant contributions exceeding % of Earnings or $ ); MPP Adoption Agreement 03~25~98 ~ j/,~ 3 PLUS % of the contribUtions made by the Participant for the Plan Year in excess of those included in the above paragraph (but not including Participant contributions exceeding in the aggregate ~% of Earnings or $ ). Employer Contributions on behalf of a Participant for a Plan Year shall not exceed $ or % of Earnings, whichever is __ more or ~ less. Each Participant may make a voluntary (unmatched), after-tax contri- bution, subject to the limitations of Section 4.05 and Article V of the Plan. Yes No Employer contributions and Participant contributions shall be contributed to the Trust in accordance with the following payment schedule: VII. EARNINGS Earnings, as defined under Section 2.09 of the Plan, shall include: (a) Overtime Yes No (b) Bonuses Yes No VIII. LIMITATION ON ALLOCATIONS If the Employer maintains or ever maintained another qualified plan in which any Participant in this Plan is (or was) a participant or could possibly become a participant, the Employer hereby agrees to limit contributions to all such plans as provided herein, if nec,essary in order to avoid excess contributions (as described in Sections 5.02 and 5.03 of the Plan). If the Participant is covered under another qualified defined contribution plan maintained by the Employer, the provisions of Section 5.02(a) MPP Adoption Agreement 03~25~98 through (f) of the Plan will apply unless another method has been indicated below. () Other Method. (Provide the method under which the plans will limit total Annual Additions to the Maximum Permissible Amount, and will properly reduce any excess amounts, in a manner that precludes Employer discretion.) If the Participant is or has ever been a participant in a defined benefit plan maintained by the Employer, and if the limitation in Section 5.03 of the Plan would be exceeded, then the Participant's Projected Annual Benefit under the defined benefit plan shall be reduced in accordance with the terms thereof to the extent necessary to satisfy such limitation. If such plan does not provide for such reduction, or if the limitation is still exceeded after the reduction, annual additions shall be reduced to the extent necessary in the manner described in Sections 5.02 and 5.02. The methods of avoiding the limitation described in this paragraph will not apply if the Employer indicates another method below. () Other Method. (Note to Employer: Provide below language which will satisfy the 1.0 limitation of section 415(e) of the Code. Such language must preclude Employer discretion. See section 1.415-1 of the Regulations for guidance.) 3. The limitation year is the following 12-consecutive month period: IX. VESTING PROVISIONS The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements as noted and (2) the concurrence of the Plan Administrator. Years of Service Completed MPP Adoption Agreement 03/25/98 Percent Vesting__ XI. XII. Zero % One % Two % Three % Four % Five % Six % Seven % Eight % Nine % Ten % Loans are permitted under the Plan, as provided in Article XIIh Yes No The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one or more units of state or local government. The Plan Administrator hereby agrees to inform the Employer of any amendments to the Plan made pursuant to Section 14.05 of the Plan or of the discontinuance or abandonment of the Plan. The Employer hereby appoints the ICMA Retirement Corporation as the Plan Administrator pursuant to the terms and conditions of the ICMA RETIREMENT CORPORATION GOVERNMENTAL MONEY PURCHASE PLAN & TRUST. The Employer hereby agrees to the provisions of the Plan and Trust. XIV. The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may result in disqualification of the Plan. XV. An adopting Employer may not rely on a determination letter issued by the National or District Office of the Internal Revenue Service as evidence that the Plan is qualified under section 401 of the Internal Revenue Code. In order to obtain reliance with respect to plan qualification, the Employer must apply to the appropriate key district office for a determination letter. In Witness Whereof, the Employer hereby causes this Agreement to be executed on this ~ day of ,19__. EMPLOYER Accepted: ICMA RETIREMENT CORPORATION MPP Adoption Agreement 03/25~98 By: Title: Attest: MPP Adoption Agreement 03/25/98 ICMA RETIREMENT CORPORATION GOVERNMENTAL MONEY PURCHASE PLAN & TRUST BASIC DOCUMENT ICMA RETIREMENT CORPORATION GOVERNMENTAL MONEY PURCHASE PLAN & TRUST TABLE OF CONTENTS PURPOSE ...................................................................................... 1 DEFINITIONS .... - ............................................................................... 1 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17 2.18 2.19 2.20 2.21 2.22 Account-. ................................................................................ 1 Accounting Date ....................................................................... 1 Adoption Agreement ................................................................ 1 Beneficiary .............................................................................. 1 Break in Service ........................................................................ 2 Code ...................................................................................... 2 Covered Employment Classification ............................................ 2 Disability ........................................................... : .................... 2 Earnings ................................................................................. 2 Effective Date .......................................................................... 4 Employee ................................................................................ 4 Employer ................................................................................ 4 Hour of Service ....................................................................... 4 Nonforfeitable Interest ................................................................ 4 Normal Retirement Age ............................................................. 4 Participant ...................................................... : ........................ 5 Period of Service ...................................................................... 5 Period of Severence .................................................................. 5 Plan ....................................................................................... 5 Plan Administriator ................................................................... 5 Plan Year ................................................................................. 5 Trust ....................................................................................... 5 III. ELIGIBILITY .................................................................................. 6 3.O1 Service ................................................................................... 6 3.02 Age ......................................................................................... 6 3.03 Return to Covered Employment Classification ............................ ~. 6 3.04 Service Before a Break in Service ................................................ 6 IV. CONTRIBUTIONS ............................................... , ............................ 6 4.01 Employer Contributions .............................................................6 4.02 Forfeitures .............................................................................. 7 MPP 05/26198 i 4.03 4.04 4.O5 4.06 4.07 4.08 4.O9 4.10 Mandatory Participant Contributions ....................................... 7 Matched Participant Contributions ............................................... 7 Voluntary Participant Contributions .............................................. 7 Deductible Employee Contributions ..............................................8 Military' Service Contribuitons ...................................................... 8 Changes in Participant Election .................................................. 8 Portability of Benefits ............................................................... 8 Return of Employer Contributions .............................................. 10 V. LIMITATION ON ALLOCATIONS ..................................................... 10 5.01 Participants Only in This Plan ................................................... 10 5.02 Participants in Another Defined Contribution Plan ........................ 11 5.03 Participant in Defined Benefit Plan .............................................13 5.04 Definitions ............................................................................ 13 VI. TRUST AND INVESTMENT OF ACCOUNTS ....................................... 17 6.01 6.02 6.03 6.04 6.05 6.06 6.07 Trust ...................................................................................... 17 Investment Powers ................................................................. 17 Taxes and Expenses ............................................................... 20 Payment of Benefits ................................................................ 20 Investment Funds .................................................................. 20 Valuation of Accounts ............................................................. 20 Participant Loan Accounts ......................................................20 VII. VESTING .............................................................. ~ ...................... 21 7.01 7.02 7.03 7.04 7.05 7.06 7.07 Vesting Schedule ................................................................... 21 Crediting Periods of Service ..................................................... 21 Service After Break in Service .................................................21 Vesting Upon Normal Retirement Age ....................................... 22 Vesting Upon Death or Disability ............................................. 22 Forfeitures ............................................................................ 22 Reinstatement of Forfeitures ...................................................23 VIII. BENEFITS CLAIM ........................................................................ 23 8.01 Claim of Benefits ................................................................... 23 8.02 Appeal Procedure ................................................................... 23 IX. COMMENCEMENT OF BENEFITS ................................................... 23 9.01 Normal and Elective Commencement of Benefits ....................... 23 9.02 Restrictions on Immediate Distributions ...................................... 24 MPP05/26/98 ~'~ '~'W 9.03 Transfer to Another Plan ......................................................... 25 9.04 De Minimis Accounts ............................................................. 26 9.05 Withdrawal of Voluntary Contributions ..................................... 27 9.06 Withdrawal of Deductible Employee Contributions ...................... 27 9.07 Latest Commencement of Benefits ............................................. 27 X. DISTRIBUTION REQUIREMENTS ...................................................... 27 10.01 General Rules ...................................................................... 27 10.02 Required Beginning Date ....................................................... 28 10.03 Limits on Distribution Periods ................................................ 28 10.04 Determination of Amount to Be Distributed Each Year ............... 28 10.05 Death Distribution Provisions ................................................. 29 10.06 Definitions .......................................................................... 31 XI. MODES OF DISTRIBUTION OF BENEFITS ......................................... 32 .01 Normal Mode of Distribution .................................................. 32 .02 Elective Mode of Distribution .................................................. 32 .03 Election of Mode ................................................................... 33 .04 Death Benefits ...................................................................... 33 XII. SPOUSAL DEATH BENEFIT REQUIREMENTS ................................... 33 12.01 Application .......................................................................... 33 12.02 Qualified Joint and Survivor Annuity ....................................... 33 12.03 Qualified Preretirement Survivor Annuity ............. ~ .................... 34 12.04 Notice Requirements ............................................................. 34 12.05 Definitions .......................................................................... 36 12.06 Annuity Contracts ................................................................. 38 XIII. LOANS TO PARTICIPANTS .......................................................... 38 13.01 Availability of Loans to Participants ......................................... 38 13.02 Terms and Conditions of Loans to Participants ......................... 39 13.03 Participant Loan Accounts .................................................... 42 XIV. PLAN AMENDMENT, TERMINATION AND OPTIONAL PROVISIONS .............................................................. '42 14.01 14.02 14.03 14.04 14.05 Amendment by Employer ............ : ......................................... 42 Amendment of Vesting Schedule ........................................... 43 Termination by Employer ...................................................... 44 Discontinuance of Contributions ............................................ 44 Amendment by Plan Administrator .......................................... 44 MPP 05/26/98 iii 14.06 Optional Provisions ............................................................... 45 XV. ADMINISTRATION ....................................................................... 45 15.01 15.02 15.03 15.O4 15.05 15.06 15.07 Powers of the Employer ........................................................ 45' Duties of the Plan Administrator ............................................ 45 Protection of the Employer .................................................... 46 Protection of the Plan Administrator ........................................ 46 Resignation or Removal of Plan Administrator .......................... 46 No Termination Penalty ......................................................... 47 Decisions of Plan Administrator ............................................... 47 XVl. MISCELLANEOUS ....................................................................... 47 16.01 16.02 16.03 16.04 16.05 16.06 16.07 16.08 16.09 16.10 16.11 Nonguarantee of Employment ................................................. 47 Rights to Trust Assets ........................................................... 47 Nonalienation of Benefits ...................................................... 47 Qualified Domestic Relations Order ......................................... 48 Nonforfeitability of Benefits .................................................... 48 Incompetency of Payee .........................................................48 Inability to Locate Payee ....................................................... 48 Mergers, Consolidations, and Transfer of Assets ..................... 49 Employer Records ................................................................. 49 Gender and Number .............................................................. 49 Applicable Law ..................................................................... 49 MPP 05/26/98 iv ICMA RETIREMENT CORPORATION GOVERNMENTAL MONEY PURCHASE PLAN & TRUST II. PURPOSE The Employer hereby adopts this Plan and Trust to provide funds for its Employees' re~rement, and to provide funds for their Beneficiaries in the event of death. The benefits provided in this Plan shall be paid from the Trust. The Plan and the Trust forming a part hereof are adopted and shall be maintained for the exclusive benefit of eligible Employees and their Beneficiaries. Except as provided in Sections 4.10 and 14.03, no part of the corpus or income of the Trust shall revert to the Employer or be used for or diverted to purposes other than the exclusive benefit of Participants and their Beneficiaries. DEFINITIONS 2.01 Account. A separate record which shall be established and maintained under the Trust for each Participant, and which shall include all Participant subaccounts created pursuant to Article IV, plus any Participant Loan Ac- count created pursuant to Section 13.03. Each subaccount created pursuant to Article IV shall include any earnings of the Trust and adjustments for withdrawals, and realized and u.nrealized gains and losses allocable thereto. The term "Account" may also refer to any of such separate subaccounts. 2.02 Accounting Date. Each day that the New York Stock Exchange is open for trading, and such other dates as may be determined by the Plan Administrator, as provided in Section 6.06 for valuing the Trust's assets. 2.03 Adoption Agreement. The separate agreement executed by the Employer through which the Employer adopts the Plan and elects among the various alternatives provided thereunder, and which upon execution, becomes an integral part of the Plan. 2.04 Beneficiary. The person or persons designated by the Participant who, subject to the requirements of Article XII, shall receive any benefits payable hereunder in the event of the Participant's death. The designation of such Beneficiary shall be in writing to the Plan Administrator. A Participant may designate primary and contingent Beneficiaries. Where no designated MPP 03/25/98 2.05 2.06 2.07 2.08 2.09 Beneficiary survives the Participant, the Participant's Beneficiary shall be his/her surviving spouse or, if none. his/her estate. Break in Service. A Period of Severance of at least twelve (12) consecutive months. In the case of an individual who is absent from work for maternity or paternity reasons, the twelve (12) consecutive month period beginning on the first anniversary of the first date of such absence shall not constitute a Break in Service. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence (1) by reason of the pregnancy of the individual, (2) by reason of the birth of a child of the individual. (3) by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or (4) for purposes of caring for such child for a period beginning immediately fol- lowing such birth or placement. Code. The Internal Revenue Code of 1986, as amended from time to time. Covered Employment Classification. The group or groups of Employees eligible to make and/or have contributions to this Plan made on their behalf, as specified by the Employer in the Adoption Agreement. Disability. A physical or mental impairment which is of such permanence and degree that, as determined by the Employer, a Participant is unable because of such impairment to perform any substantial gainful activity for which he/she is suited by virtue of his/her experience~ training, or education and that has lasted, or can be expected to last, for a continuous period of not less than twelve (12) months, or can be expected to result in death. The permanence and degree of such impairment shall be supported by medical evidence. If the Employer maintains a long-term disability plan, the definition of Disability shall be the same as the definition of disability in the long-term disability plan. Earnings. ia) General Rule. Earnings, which form the basis for computing Employer Contributions, are all of each Participant's W-2 earnings which are actually paid to the Participant during the Plan Year; plus any contributions made pursuant to a salary reduction agreement which are not includible in the gross income of the Employee under section, 125,402(e)(3), 402(h)(1)(B), 403(b), 414(h)(2), or 457(b) of the Code. Unless the Employer elects otherwise in the Adoption Agreement, Earnings shall exclude overtime compensation and bonuses. MPP 03125198 (b) (c) Limitation on Eamings. Notwithstanding the foregoing, effective as of the first Plan Year beginning on or after January 1, 1989, and before January 1, 1994, the annual Earnings of each Participant taken into account for determining all benefits provided under the Plan for any Plan Year shall not exceed $200,000. This limitation shall be adjusted by the Secretary of the Treasury at the same time and in the same manner as under section 415(d) of the Code, except that the dollar increase in effect on January I of any calendar year is effective for years beginning in such calendar year and the first adjustment to the $200,000 limitation is effective on January 1, 1990. For Plan Years beginning on or after January 1, 1994, the annual Earnings of each Participant taken into account for determining all benefits provided under the Plan for any Plan Year shall not exceed $150,000, as adjusted for increases in the cost-of-living in accordance with section 401(a)(17)(B) of the Code. The cost-of- living adjustment in effect for a calendar year applies to any determination period beginning in such calendar year. If a determination period consists of fewer than twelve (12) months, the annual Earnings limit is an amount equal to the otherwise applicable annual Earnings limit multiplied by a fraction, the numerator of which is the number of months in the short determination pedod, and the denominator of which is twelve (12). If Earnings for any prior determination period are taken into account in determining a Participant's allocations for the current Plan Year, the Earnings for such prior determination period are subject to the applicable annual Earnings limit in effect for that prior year. For this purpose, for years beginning on or after January 1, 1989, the applicable annual Earnings limit is $200,000. In addition, in determining allocations in Plan Years beginning on or after January 1, 1994, the annual Earnings limit in effect for determination periods beginning before that date is $150,000. Limitations for Governmental Plans. In the case of an eligible participant in a governmental plan (within the meaning of section 414(d) of the Code), the dollar limitation shall not apply to the extent the Earnings which are allowed to be taken into account under the Plan would be reduced below the amount which was allowed to be taken into account under the Plan as in effect on July 1, 1993. For, purposes of this Section, an eligible participant is an individual who first became a Participant in the Plan during a Plan Year beginning before the first Plan Year beginning after December 31, 1993. MPP 03/25/98 r 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17 Effective Date. The first day of the Plan Year during which the Employer adopts the Plan, unless the Employer elects in the Adoption Agreement an alternate date as the Effective Date of the Plan. Employee. Any individual who has applied for and been hired in an employment position and who is employed by the Employer as a common law employee; provided, however, that Employee shall not include any individual who is not so recorded on the payroll records of the Employer, including any such person who is subsequently reclassified by a court of law or regulatory body as a common law employee of the Employer. For purposes of clarification only and not to imply that the preceding sentence would otherwise cover such person, the term Employee does not include any individual who performs services for the Employer as an independent contractor, or under any other non-employee classification. Employer. The unit of state or local government or an agency or instrumentality of one (1) or more states or local governments that executes the Adoption Agreement. Hour of Service. Each hour for which an Employee is paid or entitled to payment for the performance of duties for the Employer. Nonforfeitable Interest. The interest of the Participant or his/her Beneficiary (whichever is applicable) in that percentage of his/her Employer Contribu- tion Account balance which has vested pursuant to Article VII. A Participant shall, at alt times, have a one hundred percent (100%) Nonforfeitable Interest in his/her Participant Contribution, Portable Benefits, and Voluntary Contribution Accounts. Normal Retirement Age. The age which the Employer specifies in the Adoption Agreement. If the Employer enforces a mandatory retirement age, the Normal Retirement Age is the lesser of that mandatory age or the age specified in the Adoption Agreement. Participant. An Employee or former Employee for whom contributions have been made under the Plan and who has not yet received all of the payments of benefits to which he/she is entitled under the Plan. A Participant is treated as benefiting under the Plan for any Play Year during which the Participant received or is deemed to receive an allocation in accordance with Treas. Reg. section 1.410(b)-(3)(a). Period of Service. For purposes of determining an Employee's initial or continued eligibility to participate in the Plan or the Nonforfeitable Interest in the Participant's Account balance derived from Employer Contributions, an MPP O3~25~98 4 Ill. 2.18 Employee will receive credit for the aggregate of all time period(s) com- mencing with the Employee's first day of employment or reemployment and ending on the date a Break in Service begins. The first day of employment or reemployment is the first day the Employee performs an Hour of Service. An Employee will also receive credit for any Period of Severance of less than twelve (12) consecutive months. Fractional periods of a year will be expressed in terms of days. Notwithstanding anything to the contrary herein, if the Plan is an amendment and restatement of a plan that previously calculated service under the hours of service method, service shall be credited in a manner that is at-least as generous as that provided under Treas. Regs. section 1.410(a)-7(g). Period of Severance. A continuous period of time during which the Employee is not employed by the Employer. Such period begins on the date the Employee retires, quits or is discharged, or if earlier, the twelve (12) month anniversary of the date on which the Employee was otherwise first absent from service. 2.19 Plan. This Plan, as established by the Employer, including any elected provisions pursuant to the Adoption Agreement. 2.20 Plan Administrator. The ICMA Retirement Corporation or any successor Plan Administrator. 2.21 Plan Year. The twelve (12) consecutive month period designated by the Employer in the Adoption Agreement. 2.22 Trust. The Trust created under Article VI of the Plan which shall consist of all of the assets of the Plan derived from Employer and Participant contribu- tions under the Plan, plus any income and gains thereon, less any losses, expenses and distributions to Participants and Beneficiaries. ELIGIBILITY 3.01 Service. Except as provided in Sections 3.02 and 3.03 of the Plan, an Employee within the Covered Employment Classification who has completed a twelve (12) month Period of Service shall be eligible to participate in the Plan at the beginning of the payroll period next commencing thereafter. The EmPloyer may elect in the Adoption A, greement to waive or reduce the twelve (12) month Period of Service. If the Employer maintains the plan of a predecessor employer, service with such employer shall be treated a Service for the Employer. MPP 03/25/98 IV. 3.02 Age. The Employer may designate a minimum age requirement, not to exceed age twenty-one (21), for participation. Such age, if any, shall be declared in the Adoption Agreement. 3.03 Return to Covered Employment Classification. In the event a Participant is no longer a member of Covered Employment Classification and becomes ineligible to make contributions and/or have contributions made on his/her behalf, such Employee will become eligible for contributions immediately upon returning to a Covered Employment Classification. If such Participant incurs a Break in Service, eligibility will be determined under the Break in Service rules of the Plan. In the event an Employee who is not a member of a Covered Employment Classification becomes a member, such Employee will be eligible to participate immediately if such Employee has satisfied the minimum age and service requirements and would have otherwise previously become a Participant. 3.04 Service Before a Break in Service. All Periods of Service with the Employer are counted toward eligibility, including Periods of Service before a Break in Service. CONTRIBUTIONS 4.01 Employer Contributions. For each Plan Year, the Employer will contribute to the Trust an amount as specified in the Adoption Agreement. The Employer's full contribution for any Plan Year shall be due and paid not later than thirty (30) working days after the close of the Plan Year. Each Participant will share in Employer Contributions for the period beginning on the date the Participant commences participation under the Plan and ending on the date on which such Employee severs employment with the Employer or is no longer a member of a Covered Employment Classification, and such contributions shall be accounted for separately in his/her Employer Contribution Account. Notwithstanding anything to the contrary herein, if so elected by the Employer in the Adoption Agreement, an Employee shall be required to make contributions as provided pursuant to Section 4.03 or 4.04 in order to be eligible for Employer Contributions to be made on his/her behalf to the Plan. 4.02 Forfeitures. All amounts forfeited by ter.rninated Participants, pursuant to Section 7.06, shall be allocated to a suspense account and used to redu,ce dollar, for dollar Employer Contributions otherwise required under the Plan for the current Plan Year and succeeding Plan Years, if necessary. Forfeitures may first be used to pay the reasonable administrative MPP 03/25/98 4.03 4.04 4.05 4.06 4.07 expenses of the Plan, with any remainder being applied to reduce Employer Contributions. Mandatory Participant Contributions. If the Employer so elects in the Adoption Agreement, each eligible Employee shall make contributions at a prescribed rate as a requirement for his/her participation in the Plan. Once such an eligible Employee becomes a Participant hereunder, he/she shall not thereafter have the right to discontinue or vary the rate of such Mandatory Participant Contributions. Such contributions shall be ac- counted for separately in the Participant Contribution Account. Such Account shall be at all times nonforfeitable by the Participant. Matched Participant Contributions. If the Employer so elects in the Adoption Agreement, Employer Contributions shall be made on behalf of an eligible Employee for a Plan Year only if the Employee agrees to make Matched Participant Contributions for that Plan Year. The rate of Employer Contributions shall, to the extent specified in the Adoption Agreement, be based upon the rate at which Matched Participant Contributions are made for that Plan Year. Matched Participant Contributions shall be accounted for separately in the Participant Contribution Account. Such Account shall be at all times nonforfeitable by the Participant. Voluntary Participant Contributions. If the Employer so elects in the Adoption Agreement, an eligible Employee may make voluntary (unmatched) contributions under the Plan for any Plan Year in any amount up to ten percent (10%) of his/her Earnings for such Plan Year. Such contributions shall be accounted for separately in the. Participant's Voluntary Contribution Account. Such Account shall be at all times nonforfeitable by the Participant. Deductible Employee Contributions. The Plan will not accept deductible employee contributions which are made for a taxable year beginning after December 1986. Contributions made prior to that date will be maintained in a Deductible Employee Contribution Account. The Account will share in the gains and losses under the Plan in the same manner as described in Section 6.06 of the Plan. Such Account shall be at all times nonforfeitable by the Participant. Military Service Contributions. Notwithstanding any provision of the'Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with section 414(u) of the Code. MPP 03/25~98 If the Employer has elected in the Adoption Agreement to make loans available to Participants, loan repayments will be suspended under the Plan as permitted under section 414(u)(4) of the Code. 4.08 Changes in Participant Election. A Participant may elect to change his/her rate of Matched Participant Contributions or Voluntary Participant Contributions at anytime or dudng an election period as designated by the Employer. A Participant may discontinue such contributions at any time or during an election period as designated by the Employer. 4.09 Portability of Benefits. (a) An Employee within the Covered Employment Classification, whether or not he/she has satisfied the minimum age and service requirements of Article Ill, may transfer or roll over his/her interest in a plan qualified under section 401(a) or 403(a) of the Code to this Plan, provided: ~ (1) (2) The distribution is on account of termination or discontinuance of the plan or the distribution becomes payable on account of the Employee's separation from service, death, disability or after the Employee attains age fifty-nine and one-half (59- 1/2); and the form and nature of the distribution from the other plan satisfies the applicable requirements under the Code to make the transfer or rollover a nontaxable transaction to the Employee; The amount distributed from the plan is transferred to this Plan no later than the sixtieth (50th) day after distribution was made from the plan; and (3) In the case of a rollover, the amount transferred to this Plan does not exceed the amount of the distribution reduced by the Employee contributions (if any) to the plan (other than accumulated deductible volunta~ contributions). Such transfer or rollover may also be through an Individual Retirement Plan qualified under section 408 of the Code where the Individual Retirement Plan was used as a conduit from the prior plan and the transfer is made in accordance with the rules provided at (1) through (3) of this paragraph and the transfer does not include any personal contributions or earnings thereon the Participant may have made to the Individual Retirement Plan. MPP 03~25~98 The amount transferred shall be deposited in the Trust and shall be credited to a Portable Benefits Account. Such Account shall be one hundred percent (100%) vested in the Employee. The Plan will accept accumulated Deductible Employee Contributions as defined in section 72(0)(5) of the Code that were distributed from a qualified retirement plan and transferred (rolled over) pursuant to section 402(a)(5), 402(a)(7), 403(a)(4), or 408(d)(3) of the Code. Notwithstanding the above, this transferred (rolled over) amount shall be deposited to the Trust and shall be credited to a Deductible Employee Contribution Account. Such Account shall be one hundred percent (100%) vested in the Employee. (b) An Employee within the Covered Employment Classification, whether or not he/she has satisfied the minimum age and service requirement of Article III, may, upon approval by the Employer and the Plan Administrator, transfer his/her interest in another plan maintained by the Employer that is qualified under section 401(a) of the Code to this Plan, provided the transfer is effected through a one-time irrevocable written election made by the Participant. The amount transferred shall be deposited in the Trust and shall be credited to sources that maintain the same attributes as the plan from which they are transferred. Such transfer shall not reduce the accrued years or service credited to the Participant for purposes of vesting or eligibility for any Plan benefits or features. 4.10 Return of Employer Contributions. Any contribution made by the Employer because of a mistake of fact must be returned to the Employer within one year of the date of contribution. LIMITATION ON ALLOCATIONS 5.01 Participants Only in This Plan. (a) If the Participant does not participate in, and has never participated in another qualified plan or a welfare benefit fond, as defined in section 419(e) of the Code, maintained by the Employer, or an individual medical account, as defined by section 415(I)(2) of the Code, maintained by the Employer, which provides an Annual Addition, the amount of Annual Additions which may be credited to the Participant's Account for any Limitation Year will not exceed the lesser of the Maximum Permissible Amoun! or any other limitation contained in this Plan. If th~ Employer Contribution that would otherwise be contributed or allocated to the Participant's Account would cause the Annual Additions for the Limitation Year to exceed MPP 03/25/98 (b) (c) (d) the Maximum Permissible Amount, the amount contributed or al- located will be reduced so that the Annual Additions for the Limitation Year will equal the Maximum Permissible Amount. Prior to determining the Participant's actual Compensation for the Limitation Year, the Employer may determine the Maximum Permissible Amount for a Participant on the basis of a reasonable estimation of the Participant's Compensation for the Limitation Year, uniformly determined for all Participants similarly situated. As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for the Limitation Year will be determined on the basis of the Participant's actual Compensation for the Limitation Year. If, pursuant to Subsection (c) or as a result of the allocation of forfeitures, there is an Excess Amount, the excess will be disposed of as follows: Any Voluntary Participant Contributions, to the extent they would reduce the Excess Amount, will be returned to the Participant; (2) If after the application of paragraph (1) an Excess Amount still exists, and the Participant is covered by the Plan at the end of the Limitation Year, the Excess Amount in the Participant's Account will be used to reduce Employer Contributions (including any allocation of forfeitures) for such Participant in the next Limitation Year, and each succeeding Limitation Year if necessary; (3) If after the application of paragraph (1) an Excess Amount still exists, and the Participant is not covered by the Plan at the end of the Limitation Year, the Excess Amount will be held unallocated in a suspense account. The suspense account will be applied to reduce future Employer Contributions (including allocation of any forfeitures) for all remaining Par- ticipants in the next Limitation Year, and each succeeding Limitation Year if necessary; (4) If a suspense account is in existence at any time during a particular Limitation Year, all amounts in the suspense account must be allocated and rea!located to Participants' ac- counts before any Employer or any Employee contributions may be made to the Plan for that Limitation Year. Excess MPP 03/25/98 10 Amounts in a suspense account may not be distributed to Participants or former Participants. 5.02 Participants in Another Defined Contribution Plan. (a) Unless the Employer provides other limitations in the Adoption Agreement, this Section applies if, in addition to this Plan, the Participant is covered under another qualified defined contribution plan maintained by the Employer, or a welfare benefit fund, as defined in section 419(e) of the Code, maintained by the Employer, or an individual medical account, as defined by section 415(I)(2) of the Code, maintained by the Employer, which provides an Annual Addition, during any Limitation Year. The Annual Additions which may be credited to a Participant's Account under this Plan for any such Limitation Year will not exceed the Maximum Permissible Amount reduced by the Annual Additions credited to a Participant's Account under the other plans and welfare benefit funds for the same Limitation Year. If the Annual Additions with respect to the Participant under other defined contribution plans and welfare bene- fit funds maintained by the Employer are less than the Maximum Permissible Amount and the Employer contribution that would other- wise be contributed or allocated to the Participant's Account under this Plan would cause the Annual Additions for the Limitation Year to exceed this limitation, the amount contributed or allocated will be reduced so that the Annual Additions under all such plans and funds for the Limitation Year will equal the Maximum Permissible Amount. If the Annual Additions with respect to the Participant under such other defined contribution plans and welfare benefit funds in the aggregate are equal to or greater than the Maximum Permissible Amount, no amount will be contributed or allocated to the Participant's Account under this Plan for the Limitation Year. (b) Prior to determining the Participant's actual Compensation for the Limitation Year, the Employer may determine the Maximum Permissible Amount for a Participant in the manner described in Section 5.01 (b). (c) As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for the Limitation Year will be determined on the basis of the Participant's actual Compensation for the Limitation Year. (d) If, pursuant to Subsection (c) or as a result of the allocation of forfeitures, a Participant's Annual Additions under this Plan and such other plans would result in an Excess Amount for a Limitation Year, MPP 03125198 11 5.03 5.04 the Excess Amount will be deemed to consist of the Annual Additions last allocated, except that Annual Additions attributable to a welfare benefit fund or individual medical account will be deemed to have been allocated first regardless of the actual allocation date. (e) If an Excess Amount was allocated to a Participant on an allocation date of this Plan which coincides with an allocation date of another plan, the Excess Amount attributed to this Plan will be the product of, (1)- (2) The total Excess Amount allocated as of such date, multiplied by The ratio of (i) the Annual Additions allocated to the Participant for the Limitation Year as of such date under this Plan to (ii) the total Annual Additions allocated to the Par- ticipant for the Limitation Year as of such date under this and all the other qualified defined contribution plans. (f) Any Excess Amount attributed to this Plan will be disposed in the manner described in Section 5.01(d). Participant in Defined Benefit Plan. If the Employer maintains, or at any time maintained, a qualified defined benefit plan covering any Participant in this Plan, the sum of the Participant's Defined Benefit Fraction and Defined Contribution Fraction will not exceed 1.0 in any Limitation Year. The Annual Additions which may be credited to the Participant's Account under this Plan for any Limitation Year will be limited in accordance with the AdOption Agreement. This Section will not apply in Limitation Years beginning after December 31, 1999. Definitions. For the purposes of this Article, the following definitions shall apply: (a) Annual Additions: The sum of the following amounts credited to a Participant's account for the Limitation Year: (1) Employer Contributions; (2) Forfeitures; (3) Employee contributions; and (4) Allocations under a simplified employee pension. MPP 03/25/98 12 (b) Amounts allocated, after March 31, 1984, to an individual medical account, as defined in section 415(I)(2) of the Code, which is part of a pension or annuity plan maintained by the Employer, are treated as Annual Additions to a defined contribution plan. For this purpose, any Excess Amount applied under Sections 5.01(d) or 5.02(0 in the Limitation Year to reduce Employer Contributions will be considered Annual Additions for such Limitation Year. Compensation: A Participant's wages, salaries, and fees for professional services and other amounts received (without regard to whether an amount is paid in cash) for personal services actually rendered in the course of employment with the Employer maintaining the Plan to the extent that theamounts are includible in gross income (including, but not limited to, bonuses, fringe benefits, and reimbursements or other expense allowances under a nonaccountable plan (as described in Treas. Reg. section 1.62- 2(c))), excluding the following: (1) Employer Contributions to a plan of deferred compensation which are not includible in the Employee's gross income for the taxable year in which contributed, or Employer Contribu- tions under a simplified employee pension plan to the extent such contributions are deductible by the Employee, or any distributions from a plan of deferred compensation; and (2) Other amounts which received special tax benefits, or contributions made by the Employer (whether or not under a salary reduction agreement) towards the purchase of an annuity contract described in section 403(b) of the Code (whether or not the amounts are actually excludable from the gross income of the Employee). (3) Notwithstanding the above, for Limitation Years beginning after December 31, 1997, Compensation shall include: (a) any elective deferrals (as defined in section 402(g)(3) of the Code), and (b) any amount which is contributed or deferred by the Employer at the election of the Employee and which is not includible in the gross income of the Employee by reason of sections 125 or 457 of the Code. MPP 03/25/98 13 (c) (d) (e) For purposes of applying the limitations of this Article, Compensation for a Limitation Year is the Compensation actually paid or made available during such year. Defined Benefit Fraction: A fraction, the numerator of which is the sum of the Participant's Projected Annual Benefits under all the defined benefit plans (whether or not terminated) maintained by the Employer, and the denominator of which is the lesser of 125 percent of the dollar limitation determined for the Limitation Year under sections 415(b) and (d) of the Code or 140 percent of the Highest Average Compensation, including any adjustments under section 4:15(b) of the Code. Notwithstanding the above, if the Participant was a participant as of the first day of the first Limitation Year beginning after December 31, 1986, in one (1) or more defined benefit plans maintained by the Employer which were in existence on May 6, 1986, the denominator of this fraction will not be less than 125 percent of the sum of the annual benefits under such plans which the Participant had accrued as of the close of the last Limitation Year beginning before January 1, 1987, disregarding any changes in the terms and conditions of the plan after May 5, 1986. The preceding sentence applies only if the defined benefit plans individually and in the aggregate satisfied the requirements of section 415 of the Code for all Limitation Years beginning before January 1, 1987. Defined Contribution Dollar Limitation: $30,000 or, if greater, one-fourth (1/4) of the defined benefit dollar limitation set forth in section 415(b)(1) of the Code, as in effect for the Limitation Year. Defined Contribution Fraction: A fraction, the numerator of which is the sum of the Annual Additions to the Participant's account under all the defined contribution plans (whether or not terminated) maintained by the Employer for the current and all prior Limitation Years (including the Annual Additions attributable to the Participant's nondeductible Employee contributions to all defined benefit plans, whether or not terminated, maintained by the Employer, and the Annual Additions attributable to all welfare benefit funds, as defined in section 419(e) of the Code, and individual medical accounts as defined in section 415(I)(2) of the Code, maintained by the Employer), and the denominator of which is the sum of the maximum ag,gregate amounts for the current and all prior Limitation Years of service with the Employer (regardless of whether a defined contribution plan was maintained by the Employer). The maximum aggregate amount in any Limitation Year is the lesser of 125 percent MPP 03/25/98 14 (0 (g) (h) of the dollar limitation in effect under sections 415 (b) and (d) of the Code in effect under section 415(c)(1)(A) of the Code, or thirty-five percent (35%) of the Participant's Compensation for such year. If the Employee was a Participant as of the first day of the first Limitation Year beginning after December 31, 1986, in one (1) or more defined contribution plans maintained by the Employer which were in existence on May 6, 1986, the numerator of this fraction will be adjusted if the sum of this fraction and the Defined Benefit Fraction would otherwise exceed 1.0 under the terms of this Plan. Under the adjustment, an amount equal to the product of (1) the '-excess of the sum of the fractions over 1.0 multiplied by (2) the denominator of this fraction, will be permanently subtracted from the numerator of this fraction. The adjustment is calculated using the fractions as they would be computed as of the end of the last Limitation Year beginning before January 1, 1987, and disregarding any changes in the terms and conditions of the plan made after May 5, 1986, but using the section 415 of the Code limitation applicable to the first Limitation Year beginning on or after January 1, 1987. The Annual Addition for any Limitation Year beginning before January 1, 1987, shall not be recomputed to treat all Employee contributions as Annual Additions. Employer: The Employer that adopts this Plan. Excess Amount: The excess of the Participant's Annual Additions for the Limitation Year over the Maximum Permissible Amount. An Excess Amount shall include allocable income. The income allocable to an Excess Amount is equal to the sum of the allocable gain or loss for the Plan Year and the allocable gain or loss for the period between the end of the Plan Year and the date of distributions (the gap period). The Plan may use any reasonable method for computing the income allocable to an Excess Amount, provided that the method is used consistently for all Participants and for all corrective distributions under the Plan for the Plan Year, and is used by the Plan for allocating income to Participants' Accounts. Highest Average Compensation: The average Compensation for the three (3) consecutive years of service with the Employer that produce the highest average. A year of service with the Employer is the twelve'(12) consecutive month period defined as the Limitation Year in the Adoption Agreement. MPP 03/25/98 15 VI. (i) Limitation Year. A calendar year, or the twelve (12) consecutive month period elected by the Employer in the Adoption Agreement. All qualified plans maintained by the Employer must use the same Limitation Year. If the Limitation Year is amended to a different twelve (12) consecutive month pedod, the new Limitation Year must begin on a date within the Limitation Year in which the amendment is made. (J) Maximum Permissible Amount: The maximum Annual Addition that may be contributed or allocated to a Participant's Account under the Plan for any Limitation Year shall not exceed the lesser of: (1) The Defined Contribution Dollar Limitation, or (2) Twenty-five percent (25%) of the Participant's Compensation for the Limitation Year. If a short Limitation Year is created because of an amendment changing the Limitation Year to a different twelve (12) consecutive month period, the Maximum Permissible Amount will not exceed the Defined Contribution Dollar Limitation multiplied by the following frac- tion: Number of months in the short Limitation Year 12 (k) Projected Annual Benefit: The annual retirement benefit (adjusted to an actuarially equivalent straight life annuity if such benefit is expressed in a form other than a straight life annuity or qualified joint and survivor annuity) to which the Participant would be entitled under the terms of the plan assuming: (1) The Participant will continue employment until Normal Retirement Age under the plan (or current age, if later), and (2) The Participant's Compensation for the current Limitation Year and all other relevant factors used to determine benefits under the plan will remain constant for all future Limitation Years. TRUST AND INVESTMENT OF ACCOUNTS 6.01 Trust. A Trust is hereby created to hold all of the assets of the Plan for the exclusive benefit of Participants and Beneficiaries, except that expenses and taxes may be paid from the Trust as provided in Section 6.03. The MPP 03~25~98 16 trustee shall be the Employer or such other person which agrees to act in that capacity hereunder. 6.02 Investment Powers. The trustee or the Plan Administrator, acting as agent for the trustee, shall have the powers listed in this Section with respect to investment of Trust assets, except to the extent that the investment of Trust assets is controlled by Participants, pursuant to Section 13.03. (a) To invest and reinvest the Trust without distinction between principal and income in common or preferred stocks, shares of regulated investment companies and other mutual funds, bonds, loans, notes, debentures, certificates of deposit, contracts with insurance companies including but not limited to insurance, individual or group annuity, deposit administration, guaranteed interest contracts, and deposits at reasonable rates of interest at banking institutions including but not limited to savings accounts and certificates of deposit. Assets of the Trust may be invested in securities that involve a higher degree of risk than investments that have demonstrated their investment performance over an extended period of time. (b) To invest and reinvest all or any part of the assets of the Trust in any common, collective or commingled trust fund that is maintained by a bank or other institution and that is available to Employee plans qualified under section 401 of the Code, or any successor provisions thereto, and during the period of time that an investment through any such medium shall exist, to the extent of participation of the Plan, the declaration of trust of such common, collective, or commingled trust fund shall constitute a part of this Plan. (c) To invest and reinvest all or any part of the assets of the Trust in any group annuity, deposit administration or guaranteed interest contract issued by an insurance company or other financial institution on a commingled or collective basis with the assets of any other plan or trust qualified under section 401(a) of the Code or any other plan described in section 401(a)(24) of the Code, and such contract may be held or issued in the name of the Plan Administrator, or such custodian as the Plan Administrator may appoint, as agent and nominee for the Employer. During the period that an investment through any such contract shall exist, to the extent of participation of the Plan, the terms and conditions of such contract shall constitute a part of the Plan. (d) To hold cash awaiting investment and to keep such portion of the Trust in cash or cash balances, without liability for interest, in such MPP 03/25/98 17 (e) (0 (g) (h) (i) amounts as may from time to time be deemed to be reasonable and necessary to meet obligations under the Plan or otherwise to be in the best interests of the Plan. To hold, to authorize the holding of, and to register any investment to the Trust in the name of the Plan, the Employer, or any nominee or agent of any of the foregoing, including the Plan Administrator, or in bearer form, to deposit or arrange for the deposit of securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by any other person, and to organize corporations or trusts under the laws of any jurisdiction for the purpose of acquiring or holding title to any property for the Trust, all with or without the addition of words or other action to indicate that property is held in a fiduciary or representative capacity but the books and records of the Plan shall at all times show that all such investments are part of the Trust. Upon such terms as may be deemed advisable by the Employer or the Plan Administrator, as the case may be, for the protection of the interests of the Plan or for the preservation of the value of an invest- ment, to exercise and enforce by suit for legal or equitable remedies or by other action, or to waive any right or claim on behalf of the Plan or any default in any obligation owing to the Plan, to renew, extend the time for payment of, agree to a reduction in the rate of interest on, or agree to any other modification or change in the terms of any obligation owing to the Plan, to settle, compromise, adjust, or submit to arbitration any claim or right in favor of or against the Plan, to exercise and enforce any and all rights of foreclosure, bid for property in foreclosure, and take a deed in lieu of foreclosure with or without paying consideration therefor, to commence or defend suits or other legal proceedings whenever any interest of the Plan requires it, and to represent the Plan in all suits or legal proceedings in any court of law or equity or before any body or tribunal. To employ suitable consultants, depositories, agents, and legal counsel on behalf of the Plan. To open and maintain any bank account or accounts in the name of the Plan, the Employer, or any nominee or agent of the foregoing, including the Plan Administrator, in any bank or banks. To do any and all other acts that may be deemed necessary to carry out any of the powers set forth herein. MPP 03/25/98 18 6.03 Taxes and Expenses. All taxes of any and all kinds whatsoever that may be levied or assessed under existing or future laws upon, or in respect to the Trust, or the income thereof, and all commissions or acquisitions or dispositions of securities and similar expenses of investment and reinvestment of the Trust, shall be paid from the Trust. Such reaSonable compensation of the Plan Administrator, as may be agreed upon from time to time by the Employer and the Plan Administrator, and reimbursement for reasonable expenses incurred by the Plan Administrator in performance of its duties hereunder (including but not limited to fees for legal, accounting, investment and custodial services) shall also be paid from the Trust. However, no person who is a fiduciary within the meaning of section 3(21)(A) of ERISA and regulations promulgated thereunder, and who receives full-time pay from the Employer may receive compensation from the Trust, except for expenses properly and actually incurred. 6.04 Payment of Benefits. The payment of benefits from the Trust in accordance with the terms of the Plan may be made by the Plan Administrator, or by any custodian or other person so authorized by the Employer to make such disbursement. The Plan Administrator, custodian or other person shall not be liable with respect to any distribution of Trust assets made at the direction of the Employer. 6.05 Investment Funds. In accordance with uniform and nondiscriminatory rules established by the Employer and the Plan Administrator, the Participant may direct his/her Accounts to be invested in one (1) or more investment funds available under the Plan; provided, however, that the Participant's investment directions shall not violate any investment 'restrictions established by the Employer and shall not include any investment in collectibles, as defined in section 408(m) of the Code. 6.06 Valuation of Accounts. As of each Accounting Date, the Plan assets held in each investment fund offered shall be valued at fair market value and the investment income and gains or losses for each fund shall be determined. Such investment income and gains or losses shall be allocated proportionately among all Account balances on a fund-by-fund basis. The allocation shall be in the proportion that each such Account balance as of the immediately preceding Accounting Date bears to the total of all such Account balances as of that Accounting Date. For purposes of this Article, all Account balances include the Account balances of all Participants and Beneficiaries. 6.07 Participant Loan Accounts., Participant Loan Accounts shall be invested in accordance with Section 13.03 of the Plan. Such Accounts shall not share in any investment income and gains or losses of the investment funds described in Section 6.05. MPP 03~25/98 19 VII. VESTING 7.01 Vesting Schedule. The portion of a Participant's Account attributable to Mandatory Participant Contributions, Matched Participant ContribUtions, or Voluntary Participant Contributions, and the earnings thereon, shall be at all times nonforfeitable by the. Participant. A Participant shall have a Nonforfeitable Interest in the percentage of his/her Employer Contribution Account established under Section 4.01 determined pursuant to the schedule elected by the Employer in the Adoption Agreement. 7.02 Crediting Periods of Sen/ice. Except as provided in Section 7.03, all of an Employee's Periods of Sen/ice with the Employer are counted to determine the nonforfeitable percentage in the Employee's Account balance derived from Employer Contributions. If the Employer maintains the plan of a predecessor employer, service with such employer will be treated as service for the Employer. For purposes of determining years of sen/ice and Breaks in Service for purposes of computing a Participant's nonforfeitable right to the Account balance derived from Employer Contributions, the twelve (12) consecutive month period will commence on the date the Employee first performs an hour of sen/ice and each subsequent twelve (12) consecutive month period will commence on the anniversary of such date. 7.03 Service After Break in Service. in the case of a Participant who has a Break in Sen/ice of at least five (5) years, all Periods of Sen/ice after such Breaks in Sen/ice will be disregarded for the purpose of determining the nonforfeitable percentage of the Employer-derived Account balance that accrued before such Break, but both pre-Break and post-Break sen/ice will count for the purposes of vesting the Employer-derived Account balance that accrues after such Break. Both Accounts will share in the earnings and losses of the fund. In the case of a Participant who does not have a Break in Sen/ice of at least five (5) years, both the pre-Break and post-Break service will count in vesting both the pre-Break and post-Break Employer-derived Account balance. In the case of a Participant who does not have any nonforfeitable right to the Account balance derived from Employer Contributions, years of service before a period of consecutive one (1) year Breaks in Service will not be taken into account in computing eligibility sen/ice .if the number of consecutive one (1) year Breaks in Service in such period equals or exceeds the greater of five (5) or the aggregate number of years of sen/ice. MPP 03~25~98 2O 7.04 7.05 7.06 7.07 Such aggregate number of years of service will not include any years of service disregarded under the preceding sentence by reason of prior Breaks in Service. If a Participant's years of service are disregarded pursuant to the preceding paragraph, such Participant will be treated as a new Employee for eligibility purposes. If a Participant's years of service may not be disregarded pursuant to the preceding paragraph, such Participant shall continue to participate in the Plan, or, if terminated, shall participate immediately upon reemployment. Vesting'Upon Normal Retirement Age. Notwithstanding Section 7.01 of the Plan, a Participant shall have a Nonforfeitable Interest in his/her entire Employer Contribution Account, to the extent that the balance of such Account has not previously been forfeited pursuant to Section 7.06 of the Plan, if he/she is employed on or after his/her Normal Retirement Age. Vesting Upon Death or Disability. Notwithstanding Section 7.01 of the Plan, in the event of Disability or death, a Participant or his/her Beneficiary shall have a Nonforfeitable Interest in his/her entire Employer Contribution Account, to the extent that the balance of such Account has not previously been forfeited pursuant to Section 7.06 of the 'Plan. Forfeitures. Except as provided in Sections 7.04 and 7.05 of the Plan or as otherwise provided in this Section 7.06, a Participant who separates from service prior to obtaining full vesting shall forfeit that percentage of his/her Employer Contribution Account balance which has not vested as of the date such Participant incurs a Break in Service of five (5) consecutive years or, if earlier, the date such Participant receives, or is deemed under the provisions of Section 9.04 to have received, distribution of the entire Nonforfeitable Interest in his/her Employer Contribution Account. If a Participant receives a voluntary distribution of less than the entire vested portion of his/her Employer Contribution Account, the part of the nonvested portion that will be treated as a forfeiture is the total nonvested portion multiplied by a fraction, the numerator of which is the amount of the distribution attributable to Employer Contributions and the denominator of which is the total value of the vested Employer Contribution Account. No forfeiture will occur solely as a result of a Participant's withdrawal of Employee Contributions. Forfeitures shall be allocated in the manner described in Section 4.02. Reinstatement of Forfeitures. If the Participant returns to the employment of the Employer before incurring a Break in Service of five (5) consecutive MPP 03/25/98 21 years, any amounts forfeited pursuant to Section 7.06 shall be reinstated to the Participant's Employer Contribution Account on the date of repayment by the Participant of the amount distributed to such Participant from his/her Employer Contribution Account; provided, however, that if such Participant forfeited his/her Account balance by reason of a deemed distributiOn, pursuant to Section 9.04, such amounts shall be automatically restored upon the reemployment of such Participant. Such repayment must be made before the earlier of five (5) years after the first date on which the Participant is subsequently reemployed by the Employer, or the date the Participant. incurs a Break in Service of five (5) consecutive years. VIII. BENEFITS CLAIM. 8.01 Claim of Benefits. A Participant, Employee or Beneficiary shall notify the Plan Administrator in writing of a claim of benefits under the Plan. The Plan Administrator shall take such steps as may be necessary to facilitate the payment of such benefits to the Participant, Employee or Beneficiary. 8.02 Appeal Procedure. If any claim for benefits is denied by the Plan Administrator, the Plan Administrator shall notify the claimant in writing of such denial, setting forth the specific reasons and citing reference to specific provisions of the Plan upon which the denial is based. An appeal period of sixty (60) days after receipt of the notification of denial shall be granted, and said notification shall advise the claimant of the appeal procedure. The claimant shall file the appeal with the Plan Administrator, whose decision shall be final, to the extent provided by Section 15.07. IX. COMMENCEMENT OF BENEFITS 9.01 Normal and Elective Commencement of Benefits. A Participant who retires, becomes Disabled or separates from service for any other reason may elect by written notice to the Plan Administrator to have the distribution of benefits commence on any date, provided that such distribution complies with Sections 9.02 and 9.07. Such election must be made in wdting during the ninety (90) day period ending on the date as of which benefit payments are to commence. A Participant's election shall be revocable and may be amended by the Participant. The failure of a Participant and the Participant's Spouse to consent to a distribution while a benefit is immediately distributable, within the meaning of section 9.02 of the Plan, shall be deemed to be an election to defer commencement of payment of any benefit. 9.02 Restrictions on Immediate Distributions. Notwithstanding anything to the contrary in Section 9.01 of the Plan, if the value of a Participant's vested MPP 03/25/98 ~'~ ~-'¢~¢ 22 Account balance exceeds (or at any time of any pdor distribution exceeded) the dollar limit under section 411(a)(11)(A) of the Code, and the Account balance is immediately distributable, the Participant and the Participant's Spouse (or where either has died, the survivor) must consent to any distribution of such Account balance. The consent of the Participant and the Participant's Spouse shall be obtained in writing during the ninety (90) day period ending on the date as of which benefit payments are to commence. The Plan Administrator shall notify the Participant and the Participant's Spouse of the right to defer any distribution until the Participant's Account balance'is no .longer immediately distributable. Such notification shall include a general description of the material features, and an explanation of the relative values of, the optional forms of benefit available under the Plan in a manner that would satisfy section 417(a)(3) of the Code, and shall be provided no less than thirty (30) and no more than ninety (90) days before the date as of which benefit payments are to commence. However, distribution may commence less than thirty (30) days after the notice described in the preceding sentence is given, provided (i) the distribution is one to which sections 401(a)(11) and 417 of the Code do not apply or, if sections 401(a(11) and 417 of the Code do apply, the waiver requirements of Section 12.04(a) are met; (ii) the Plan Administrator cleady informs the Participant that the Participant has a right to a period of at least thirty (30) days after receiving the notice to consider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option); and (iii) the Participant, after receiving the notice, affirmatively elects a distribution. Notwithstanding the foregoing, only the Participant need consent to the commencement of a distribution in the form of the Qualified Joint and Survivor Annuity while the Account balance is immediately distributable. (Furthermore, if payment in the form of a Qualified Joint and Survivor Annuity is not required with respect to the Participant pursuant to section 12.02 of the Plan, only the Participant need consent to the distribution of an Account balance that is immediately distributable.) Neither the consent of the Participant nor the Participant's Spouse shall be required for any form of distribution to the extent that a distribution is required to satisfy section 401 (a)(9) or 415 of the Code. In addition, upon termination of this Plan if the Plan does not offer an · annuity option (purchased from a commercial provider) and if the Employer does not maintain another defined contribution plan, the Participant's Account balance will, without the Participant's consent, be distributed to the Participant. MPP 03125198 23 An Account balance is immediately distributable if any part of the Account balance could be distributed to the Participant (or Surviving Spouse) before the Participant attains or would have attained (if not deceased) the later of Normal Retirement Age or age sixty-two (62). For purposes of determining the applicability of the foregoing consent requirements to distributions made before the first day of the first plan year beginning after December 31, 1988, the Participant's vested Account balance shall not include amounts attributable to accumulated deductible employee contributions within the meaning of section 72(o)(5)(B) of the Code. 9.03 Transfer to Another Plan. (a) If a Participant becomes eligible to participate in another plan maintained by the Employer that is qualified under section 401(a) of the Code, the Plan Administrator shall, at the written election of such Participant, transfer all or part of such Participant's Account to such plan, provided the plan administrator for such plan certifies to the Plan Administrator that its plan provides for the acceptance of such a transfer. For purposes of this Plan, any such transfer shall not be considered a distribution to the Participant subject to spousal consent as described in Section 9.02 and Article Xll. (b) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributee's election under this Section, a Distributee may elect, at the time and in the manner prescribed by the Plan Administrator, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover. For purposes of this Plan, any such Eligible Rollover Distribution shall be considered a distribution to the Participant subject to spousal consent as described in Section 9.02 and Article Xll. (c) Definitions. For the purposes of Subsection (b), the following definitions shall apply: 1) Eligible Rollover Distribution. Any distribution of all or any portion of the balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life or life expectancy of the Distributee or the joint lives or joint life expectancies of the Distributee and the Distributee's designated beneficiary, or for a specified period MPP O3/25/98 24 9.04 9.05 MPP 03/25/98 of ten years or more; any distribution to the extent such distribution is required under section 401(a)(9) of the Code; the portion of any distribution that is not includible in gross income; and any other distribution(s) that is reasonably expected to total less than $200 dudng a year. (2) Eligible Retirement Plan. An individual retirement account described in section 408(a) of the Code, an individual retirement annuity described in section 408(b) of the Code, an annuity plan described in section 403(a) of the Code, or a qualified trust described in section 401(a) of the Code, that · accepts the Distdbutee's Eligible Rollover Distribution. However, in the case of an Eligible Rollover Distribution to the Surviving Spouse, an Eligible Retirement Plan is an individual retirement account or individual retirement annuity. (3) Distributee. Participant; in addition, the Participant's surviving spouse and the Participant's spouse who is the alternate payee under a qualified domestic relations order, as defined in section 414(p) of the Code, are Distributees with regard to the interest of the spouse or former spouse. (4) Direct Rollover. A payment by the Plan to the Eligible Retirement Plan specified by the Distributee. De Minimis Accounts. Notwithstanding the foregoing provisions of this Article, if a Participant terminates service, and the value of his/her Nonforfeitable Interest in his/her Account is not greater than the dollar limit under section 411(a)(11)(A) of the Code, the Participant shall be paid his/her benefits as soon as practicable after such termination, but, in no event, later than the second Plan Year following the Plan Year in which the Participant terminated employment. For purposes of this Section, if a Participant's Nonforfeitable Interest in his/her Account is zero, the Participant shall be deemed to have received a distribution of such Nonforfeitable Interest in his/her Account. A Participant's Nonforfeitable Interest in his/her Account shall not include accumulated Deductible Employee Contributions within the meaning of Section 72(o)(5)(B) of the Code for Plan Years beginning prior to January 1, 1989. Withdrawal of Voluntary Contributions. A Participant may make a written election,'or if married, a Qualified Election, to withdraw a part of or the full amount of his/her Voluntary Contribution Account. Such withdrawals may be made at any time, provided that no more than two (2) such withdrawals 25 9.06 may be made during any calendar year. No forfeiture will occur solely as the result of any such withdrawal:' Withdrawal of Deductible Employee Contributions. A Participant may make a written election, or if married, a Qualified Election, to withdraw a Part of or the full amount of his/her Deductible Employee Contribution Account. Such withdrawals may be made at any time, provided that no more than two (2) such withdrawals may be made during any calendar year. No forfeiture will occur solely as the result of any such withdrawal. 9.07 Latest Commencement of Benefits. Notwithstanding anything to the contrary-in this Article, benefits shall begin no later than the Participant's Required Beginning Date, as defined under Section 10.06, or as otherwise provided in Section 10.05. DISTRIBUTION REQUIREMENTS 10.01 General Rules. (a) Subject to the provisions of Article Xll, the requirements of this Article shall apply to any distribution of a Participant's interest and will take precedence over any inconsistent provisions of this Plan. (b) All distributions required under this Article shall be determined and made in accordance with the proposed regulations under section 401(a)(9) of the Code, including the minimum distribution incidental benefit requirement of section 1.401 (a)(9)-2 of the proposed regulations. 10.02 Required Beginning Date. The entire Nonforfeitable Interest of a Participant must be distributed or begin to be distributed no later than the Participant's Required Beginning Date. 10.03 Limits on Distribution Periods. As of the first Distribution Calendar Year, distributions, if not made in a single-sum, may only be made over one of the following periods (or a combination thereof): (a) The life of the Participant, (b) The life of the Participant and a Designated Beneficiary, (c) A period certain not extending beyond the Life Expectancy of the Participant, or MPP 03/25/98 26 (d) A period certain not extending beyond the Joint and Last Survivor Expectancy of the Participant and a Designated Beneficiary. 10.04 Determination of Amount to Be Distributed Each Year. If the Participant's Nonforfeitable Interest is to be distributed in other than a after the Required Beginning Date: (a) Individual Account. (1) If a Participant's Benefit is to be distributed over (i) a period not extending beyond the Life Expectancy of the Participant · or the Joint Life and Last Survivor Expectancy of the Participant and the Participant's Designated Beneficiary, or (ii) a period not extending beyond the Life Expectancy of the Designated Beneficiary, the amount required to be distributed for each calendar year, beginning with distributions for the first Distribution Calendar Year, must at least equal the quotient obtained by dividing the Participant's Benefit by the Applicable Life Expectancy. (2) For calendar years beginning before January 1, 1989, if the Participant's spouse is not the Designated Beneficiary, the method of distribution selected must assure that at least fifty percent (50%) of the present value of the amount available for distribution is paid within the Life Expectancy of the Participant. (3) For calendar years beginning after December 31, 1988, the amount to be distributed each year, beginning with distributions for the first Distribution Calendar Year shall not be less than the quotient obtained by dividing the Participant's Benefit by the lesser of (i) the Applicable Life Expectancy, or (ii) if the Participant's spouse is not the Designated Beneficiary, the applicable divisor determined from the table set forth in Q&A-4 of section 1.401(a)(9)-2 of the proposed regulations. Distributions after the death of the Participant shall be distributed using the Applicable Life Expectancy in Subsection (1) as the relevant divisor without regard to Proposed Regulations section 1.401(a)(9)-2. (4) The minimum distribution required for the Participant's first Distribution Calendar Year must be made on or before the Participant's Required Beginning Date. The minimum distribution for other calendar years, including the minimum distribution for the Distribution Calendar Year in which the single sum, MPP 03/25/98 27 Employee's required beginning date occurs, must be made on or before December 31 of that Distribution Calendar Year. (b) Other forms. If the Participant's Benefit is distributed in the form of an annuity purchased from an insurance company, distributions thereunder shall be made in accordance with the requirements of section 401(a)(9) of the Code and the proposed regulations thereunder. 10.05 Death Distribution Provisions. Upon the death of the Participant, the following distribution provisions shall take effect: (a) If the Participant dies after distribution of his/her interest has commenced, the remaining portion of such interest will continue to be distributed at least as rapidly as under the method of distribution being used prior to the Participant's death. (b) If the Participant dies before distribution of his/her interest commences, the Participant's entire interest will be distributed no later than December 31 of the calendar year containing the fifth (5th) anniversary of the Participant's death except to the extent that an election is made to receive distributions in accordance with (1) or (2) below: (1) If any portion of the Participant's interest is payable to a Designated Beneficiary, distributions may be made over the life or over a period certain not greater than the Life Expectancy of the Designated Beneficiary commencing on or before December 31 of the calendar year immediately following the calendar year in which the Participant died; (2) If the Designated Beneficiary is the Participant's surviving spouse, the date distributions are required to begin in ac- cordance with Subsection (1) shall not be earlier than-the later of (i) December 31 of the calendar year immediately following the calendar year in which the Participant died, and (ii) December 31 of the calendar year in which the Participant would have attained age seventy and one-half (70-1/2). If the Participant has not made an election pursuant to this Subsection by the time of his/her death, the Participant's Designated Beneficiary must elect the method of distribution no later than the e~rlier of (i) December 31 of the calendar year in which distributions would be required to begin under this Section, or (ii) December 31 of the calendar year which contains the fifth (5th) anniversary of the MPP 03/25/98 28 10.06 (c) (d) date of death of the ParticipanL If the Participant has no Designated Beneficiary, or if the Designated Beneficiary does not elect a method of distribution, distribution of the Participant's entire interest must be completed by December 31 of the calendar year containing the fifth (5th) anniversary of the Participant's death. For purposes of Subsection (b), if the surviving spouse dies after the Participant, but before payments to such spouse begin, the provisions of Subsection (b), with the exception of paragraph (2) therein, shall be applied as if the surviving spouse were the Participant. For purposes of this Section, any amount paid to a child of the Participant will be treated as if it had been paid to the surviving spouse if the amount becomes payable to the surviving spouse when the child reaches the age of majority. (e) For the purposes of this Section, distribution of a Participant's interest is considered to begin on the Participant's Required Beginning Date (or, if Subsection (c) is applicable, the date distribu- tion is required to begin to the surviving spouse pursuant to Subsection (b)). If distribution in the form of an annuity irrevocably commences to the participant before the Required Beginning Date, the date distribution is considered to begin is the date distribution actually commences. Definitions. For the purposes of this Section, the following definitions (a) Applicable Life Expectancy. The Life Expectancy (or Joint and Last Survivor Expectancy) calculated using the attained age of the Participant (or Designated Beneficiary) as of the Participant's (or Designated Beneficiary's) birthday in the applicable calendar year reduced by one (1) for each calendar year which has elapsed since the date Life Expectancy was first calculated. If Life Expectancy is being recalculated, the Applicable Life Expectancy shall be the Life Expectancy as so recalculated. The applicable calendar year shall be the first Distribution Calendar Year, and if Life Expectancy is being recalculated such succeeding calendar year. (b) Designated Beneficiary. The individual who is designated as the Beneficiary under the Plan in accordance with section 401(a)(9) of the Code and the proposed regulations thereunder. (c) Distribution Calendar Year. A calendar year for which a minimum distribution is required. For distributions beginning before the shall apply: MPP 03/25/98 29 XI. Participant's death, the first Distribution Calendar Year is the calendar year immediately preceding the calendar year which contains the Participant's Required Beginning Date. For distributions beginning after the Participant's death, the first Distribution Calendar Year is the calendar year in which distributions are required to begin pursuant to Section 10.05 above. (d) Life Expectancy. The Life Expectancy and joint and last survivor expectancy, respectively, as computed by use of the expected return multiples in Tables V'and VI of section 1.72-9 of the income tax regulations. Unless otherwise elected by the Participant (or spouse, in the case of distributions described in Section 10.05(b)(2) above) by the time distributions are required to begin, Life Expectancies shall be recalculated annually. Such election shall be irrevocable as to the Participant (or spouse) and shall apply to all subsequent years. The Life Expectancy of a nonspouse Beneficiary may not be recalculated. (e) Participant's Benefit. (1) The Account balance as of the last Accounting Date in the calendar year immediately preceding the Distribution Calendar Year (valuation calendar year) increased by the amount of any contributions or forfeitures allocated to the Account balance as of dates in the valuation calendar year after such Accounting Date and decreased by distributions made in the valuation calendar year after such Accounting Date. (2) For purposes of paragraph (1) above, if any portion of the minimum distribution for the first Distribution Calendar Year is made in the second Distribution Calendar Year on or before the Required Beginning Date, the amount of the minimum distribution made in the second Distribution Calendar Year shall be treated as if it had been made in the immediately preceding Distribution Calendar Year. (f) Required Beginning Date. The Required Beginning Date of a Participant is the first day of April of the calendar year following the calendar year in which the Participant attains age seventy and one-half (70-1/2), or such later date as permitted under this Section or section 401(a)(9) of the Code. MODES OF DISTRIBUTION OF BENEFITS MPP 03~25~98 30 11.01 Normal Mode of Distribution. Unless an elective mode of distribution is elected in accordance with Article XII, benefits shall be paid to the Participant in the form provided for in Article XII. 11.02 Elective Mode of Distribution. Subject to the requirements of Articles X and XII, a Participant may revocably elect to have his/her Account distributed in any one (1) of the following modes in lieu of the mode described in Section 11.01: (a) Equal Payments. Equal monthly, quarterly, semi-annual, or annual payments in an amount chosen by the Participant continuing until · the Account is exhausted. (b) Lump Sum. A lump sum payment. (c) Period Certain. Approximately equal monthly, quarterly, semi-annual, or annual payments, calculated to continue for a period certain chosen by the Participant. (d) Other. Any other sequence of payments requested by the Participant. 11.03 Election of Mode. A Participant's election of a payment option must be made in writing between thirty (30) and ninety (90) days before the payment of benefits is to commence. 11.04 Death Benefits. Subject to Articles X and XII, (a) In the case of a Participant who dies before he/she has begun receiving benefit payments, the Participant's entire Nonforfeitable Interest shall then be payable to his/her Beneficiary within ninety (90) days of the Participant's death. A Beneficiary who is entitled to receive benefits under this Section may elect to have benefits com- mence at a later date, subject to the provisions of Section 10.05. The Beneficiary may elect to receive the death benefit in any of the forms available to the Participant under Section 11.02. If the Beneficiary is the Participant's Surviving Spouse, and such Surviving Spouse dies before payment commences, then this Section shall apply to the beneficiary of the Surviving Spouse as though such Surviving Spouse were the Participant. (b) Should the Participant die after he/she has begun receiving benefit payments, the Beneficiary shall receive the remaining benefits, if any, that are payable, under the payment schedule elected by the Participant. Notwithstanding the foregoing, the Beneficiary may MPP 03/25/98 31 .: elect to accelerate payments of the remaining balances, including but not limited to, a lump sum distribution. XlI. SPOUSAL BENEFIT REQUIREMENTS 12.01 Application. The provisions of this Article shall take precedence over any conflicting provision in this Plan. The provisions of this Article shall apply to any Participant who is credited with any Period of Service with the Employer on or after August 23, 1984, and such other Participants as provided in Section 12.05. 12.02 Qualified Joint and Survivor Annuity. Unless an optional form of benefit is selected pursuant to a Qualified Election within the ninety (90) day period ending on the Annuity Starting Date, a married Participant's Vested Account Balance will be paid in the form of a Qualified Joint and Survivor Annuity and an unmarried Participant's Vested Account Balance will be paid in the form of a Straight Life Annuity. The Participant may elect to have such annuity distributed upon the attainment of the Earliest Retirement Age under the Plan. 12.03 Qualified Preretirement Survivor Annuity. If a Participant dies before the Annuity Starting Date, then fifty percent (50%) of the Participant's Vested Account Balance shall be applied toward the purchase of an annuity for the life of the Surviving Spouse; the remaining portion shall be paid to such Beneficiaries (which may include such Spouse) designated by the Participant. Notwithstanding the foregoing, the Participant may waive the spousal annuity by designating a different Beneficiary within the Election Period pursuant to a Qualified Election. To the extent that less than one hundred percent (100%) of the vested Account balance is paid to the Surviving Spouse, the amount of the Participant's Account derived from Employee contributions will be allocated to the Surviving Spouse in the same proportion as the amount of the Participant's Account derived from Employee contributions fs to the Participant's total Vested Account Bal- ance. The Surviving Spouse may elect to have such annuity distributed within a reasonable period after the Participant's death. Further, such Spouse may elect to receive any death benefit payable to him/her hereunder in any of the forms available to the Participant under Section 11.02. 12.04 Notice Requirements. (a) In the case of a Qualified Joint and Survivor Annuity as described in Section 12.02, the Plan Administrator shall, no less than thirty (30) days and no more than ninety (90) days prior to the Annuity Starting Date, provide each Participant a written explanation of: (i) the terms MPP 03125198 32 (b) and conditions of a Qualified Joint and Survivor Annuity; (ii) the Participant's right to make and the effect of an election to waive the Qualified Joint and Survivor Annuity form of benefit; (iii) the rights of a Participant's Spouse; and (iv) the right to make, and the effect of, a revocation of a previous election to waive the Qualified Joint and Survivor Annuity. However, if the Participant, after having received the written explanation, affirmatively elects a form of distribution and the Spouse consents to that form of distribution (if necessary), benefit payments may commence less than 30 days after the written explanation was provided to the Participant, provided that the following requirements are met: (1) The Plan Administrator provides information to the Participant clearly indicating that the Participant has a right to at least 30 days to consider whether to waive the Qualified Joint and Survivor Annuity and consent to a form of distribution other than a Qualified Joint and Survivor Annuity; (2) The Participant is permitted to revoke an affirmative distribution election at least until the Annuity Starting Date, or if later, at any time prior to the expiration of the 7-day period that begins the day after the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant; (3) The Annuity Starting Date is after the date that the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant; and (4) Distribution in accordance with the affirmative election does not commence before the expiration of the 7-day period that begins after the day after the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant. In the case of a qualified preretirement survivor annuity as described in Section 12.03, the Plan Administrator shall provide each Participant within the applicable period for such Participant a written explanation of the qualified preretirement survivor annuity in such terms and in such manner as would be comparable to the explanation provided for meeting the requirements of Subsection (a) applicable to a Qualified Joint and Survivor Annuity. The applicable period for a Participant is whichever of the following periods ends last: (i) the period beginning with the first day of the MPP 03/25/98 33 Plan Year in which the Participant attains age thirty-two (32) and ending with the close of the Plan Year preceding the Plan Year in which the Participant attains age thirty-five (35); (ii) a reasonable period ending after the individual becomes a Participant; (iii) a reasonable pedod ending after Subsection (c) ceases to apply to the Participant; (iv) a reasonable period ending after this Article first applies to the Participant. Notwithstanding the foregoing, notice must be provided within a reasonable period ending after separation from service in the case of a Participant who separates from service before attaining age thirty-five (35). For purposes of applying the preceding paragraph, a reasonable period ending after the enumerated events described in (ii), (iii) and (iv) is the end of the two (2) year period beginning one (1) year prior to the date the applicable event occurs, and ending one (1) year after that date. In the case of a Participant who separates from service before the Plan Year in which age thirty-five (35) is attained, notice shall be provided within the two (2) year period beginning one (1) year prior to separation and ending one (1) year after separation. If such a Participant thereafter returns to employment with the Employer, the applicable period for such Participant shall be redetermined. (c) Notwithstanding the other requirements of this Section, the respective notices prescribed by this Section need not be given to a Participant if (1) the Plan "fully subsidizes" the costs of a Qualified Joint and Survivor Annuity or qualified preretirement survivor annuity, and (2) the Plan does not allow the Participant to waive the Qualified Joint and Survivor Annuity or qualified preretirement survivor annuity and does not allow a married Participant to designate a non-Spouse Beneficiary. For purposes of this Subsection (c), a plan fully subsidizes the costs of a benefit if no increase in cost or decrease in benefits to the Participant may result from the Participant's failure to elect another benefit. 12.05 Definitions. For the purposes of this Section, the following definitions shall apply (a) Annuity Starting Date: The first day of the first period for which an amount is paid as an annuity or any other form. (b) Election Period: The period which begins on the first day of the Plan Year in which the Participant attains age thirty-five (35) and ends on the date of'the Participant's death. If a Participant separates from service prior to the first day of the Plan Year in which age thirty-five MPP 03/25~98 34 (c) (d) (35) is attained, with respect to the Account balance as of the date of separation, the Election Period shall begin on the date of separation. Pre-age thirty-five (35) waiver:. A Participant who will not yet attain age thirty-five (35) as of the end of any current Plan Year may make a special Qualified Election to waive the qualified preretirement survivor annuity for the period beginning on the date of such election and ending on the first day of the Plan Year in which the Participant will attain age thirty-five (35). Such election shall not be valid unless the Participant receives a written explanation of the qualified preretirement survivor annuity in such terms as are comparable to :the explanation required under Section 13.04(a). Qualified preretirement survivor annuity coverage will be automatically reinstated as of the first day of the Plan Year in which the Participant attains age thirty-five (35). Any new waiver on or after such date shall be subject to the full requirements of this Article. Earliest Retirement Age: The earliest date on which, under the Plan, the Participant could elect to receive retirement benefits. Qualified Election: A waiver of a Qualified Joint and Survivor Annuity or a qualified preretirement survivor annuity. Any waiver of a Qualified Joint and Survivor Annuity or a qualified preretirement survivor annuity shall not be effective unless: (a) the Participant's Spouse consents in writing to the election; (b) the election designates a specific Beneficiary, including any class of Beneficiaries or any contingent Beneficiaries, which may not be changed without spousal consent (or the Spouse expressly permits designations by the Participant without any further spousal consent); (c) the Spouse's consent acknowledges the effect of the election; and (d) the Spouse's consent is witnessed by a Plan representative or notary public. Additionally, a Participant's waiver of the Qualified Joint and Survivor Annuity shall not be effective unless the election designates a form of benefit payment which may not be changed without spousal consent (or the Spouse expressly permits designations by the Participant without any further Spousal consent). If it is established to the satisfaction of a Plan representative that there is no Spouse or that the Spouse cannot be located, a waiver will be deemed a Qualified Election. Any consent by a Spouse obtained under this provision (or establishment that the consent of a Spous,e may not be obtained) shall be effective only with respect to such Spouse. A consent that permits designations by the Participant without any requirement of further consent by such Spouse must acknowledge that the Spouse MPP 03125198 35 has the right to limit consent to a specific Beneficiary, and a specific form of benefit where applicable, and that the Spouse voluntarily elects to relinquish either or both of such dghts. A revocation of a prior waiver may be made by a Participant without the consent of the Spouse at any time before the commencement of benefits. The number of revocations shall not be limited. No consent obtained under this provision shall be valid unless the Participant has received notice as provided in Section 12.04. (e) Qualified Joint and Survivor Annuity: An immediate annuity for the life of the Participant with a survivor annuity for the life of the Spouse 'which is not less than fifty percent (50%) and not more than one hundred percent (100%) of the amount of the annuity which is pay- able during the joint lives of the Participant and the Spouse and which is the amount of benefit which can be purchased with. the Participant's Vested Account Balance. The percentage of the survivor annuity shall be fifty percent (50%). (f) Spouse (Surviving Spouse): The Spouse or Surviving Spouse of the Participant, provided that a former Spouse will be treated as the Spouse or Surviving Spouse and a current Spouse will not be treated as the Spouse or Surviving Spouse to the extent provided under a qualified domestic relations order as described in section 414(p) of the Code. (g) Straight Life Annuity: An annuity payable in equal installments for the life of the Participant that terminates upon the Participant's death. (h) Vested Account Balance: The aggregate value of the Participant's vested Account balances derived from Employer and Employee contributions (including rollovers), whether vested before or upon death, including the proceeds of insurance contracts, if any, on the Participant's life. The provisions of this Article shall apply to a Participant who is vested in amounts attributable to Employer Contributions, Employee contributions (or both) at the time of death or distribution. 12.06 Annuity Contracts. Where benefits are to be paid in the form of a life annuity pursuant to the terms of this Article, a nontransferable annuity contract shall be purchased from a life insurance company and distributed to the Participant or Surviving Spouse, as applicable. The terms of any ~annuity contract purchased and distributed by the Plan shall comply with the requirements of this Plan and section 417 of the Code. MPP 03125198 36 Xlil. LOANS TO PARTICIPANTS 13.01 Availability of Loans to Participants. (a) If the Employer has elected in the Adoption Agreement to make loans available to Participants, a Participant may apply for a loan from the Plan subject to the limitations and other provisions of this Article. (b) The Employer shall establish wdtten guidelines governing the granting of loans, provided that such guidelines are approved by the Plan Administrator and are not inconsistent with the provisions of this Article, and that loans are made available to all Participants on a reasonably equivalent basis. 13.02 Terms and Conditions of Loans to Participants. Any loan by the Plan to a Participant under Section 13.01 of the Plan shall satisfy the following requirements: (a) Availability. Loans shall be made available to all Participants on a reasonably equivalent basis. (b) Nondiscrimination. Loans shall not be made to highly compensated Employees in an amount greater than the amount made available to other Employees. (c) Interest Rate. Loans must be adequately secured and bear a reasonable interest rate. (d) Loan Limit. No Participant loan shall exceed the present value of the Participant's Nonforfeitable Interest in his/her Account. (e) Spousal Consent. A Participant must obtain the consent of his/her Spouse, as defined under Section 12.05 if any, within the ninety (90) day period before the time the Account balance is used as security for the loan. Spousal consent shall be obtained no earlier than the beginning of the ninety (90) day period that ends on the date on which the loan is to be so secured. The consent must be in writing, must acknowledge the effect of the loan, and must be witnessed by a Plan representative or notary public. Such consent shall thereafter be binding with respect to the consenting Spouse or any subsequent Spouse with respect to that loan. A new consent shall be required if the Account balance is used for renegotiation, extension, renewal, or other revision of the loan. MPP O3/25/98 37 MPP 03125193 (f) (g) (h) Foreclosure. In the event of default, foreclosure on the note and attachment of security will not occur until a distributable event occurs in the Plan. Reduction of Account. If a valid spousal consent, has been obtained in accordance with Subsection (e), then, notwithstanding any other provision of this Plan, the portion of the Participant's vested Account balance used as a security interest held by the Plan by reason of a loan outstanding to the Participant shall be taken into account for purposes of determining the amount of the Account balance payable at the time of death or distribution, but only if the reduction is used · as repayment of the loan. If less than one hundred percent (100%) of the Participant's nonforfeitable Account balance (determined without regard to the preceding sentence) is payable to the surviving spouse, then the Account balance shall be adjusted by first reducing the nonforfeitable Account balance by the amount of the security used as repayment of the loan, and then determining the benefit payable to the surviving spouse. Amount of Loan. At the time the loan is made, the principal amount of the loan plus the outstanding balance (principal plus accrued interest) due on any other outstanding loans to the Participant or Beneficiary from the Plan and from all other plans of the Employer that are qualified employer plans under section 72(p)(4) of the Code shall not exceed the least of: (1) $50,000, reduced bythe excess (if any) of (a) The highest outstanding balance of loans from the Plan during the one (1) year period ending on the day before the date on which the loan is made, over (b) The outstanding balance of loans from the Plan on the date on which such loan is made; or (2) The greater of (a) $10,000, or (b) One-half (1/2) of the value of the Participant's Nonforfeitable Interest in all of his/her Accounts under this Plan. For the purpose of the above limitation, all loans from all qualified employer plans under section 72(p)(4) of the Code are aggregated. 38 (i) (J) (k) (m) Application for Loan. The Participant must give the Employer adequate written notice, as determined by the Employer, of the amount and desired time for receiving a loan. No more than one (1) loan may be made by the Plan to a Participant in any calendar year. No loan shall be approved if an existing loan from the Plan to the Participant is in default to any extent. Length of Loan. The terms of any loan issued or renegotiated after December 31, 1993, shall require the Participant to repay the loan in substantially equal installments of principal and interest, at least monthly, over a period that does not exceed five (5) years from the date of the loan; provided, however, that if the proceeds of the loan are applied by the Participant to acquire any dwelling unit that is to be used within a reasonable time (determined at the time the loan is made) after the loan is made as the principal residence of the Participant, the five (5) year limit shall not apply. In this event, the period of repayment shall not exceed a reasonable period determined by the Employer. Principal installments and interest payments otherwise due may be suspended during an authorized leave of absence, if the promissory note so provides, but not beyond the original term permitted under this Subsection (j), with a revised payment schedule (within such term) instituted at the end of such period of suspension. Prepayment. The Participant shall be permitted to repay the loan in whole or in part at any time prior to maturity, without penalty. Note. The loan shall be evidenced by a promissory note executed by the Participant and delivered to the Employer, and shall bear interest at a reasonable rate determined by the Employer. Security. The loan shall be secured by an assignment of that portion the Participant's right, title and interest in and to his/her Employer Contribution Account (to the extent vested), Participant Contribution Account, and Portable Benefits Account that is equal to fifty percent (50%) of the Participant's Account (to the extent vested). (n) Assignment or Pledge. For the purposes of paragraphs (h) and (i), assignment or pledge of any portion of the Participant's interest in the Plan and a loan, pledge, or assignment with respect to any insurance contract purchased under the Plan, will be treated as a loan. (o) Other Terms and Conditions. The Employer shall fix such other terms and conditions of the loan as it deems necessary to comply M PP 03/25/98 39 with legal requirements, to maintain the qualification of the Plan and Trust under section 401(a) of the Code. or to prevent the treatment of the loan for tax purposes as a distribution to the Participant. The Employer, in its discretion for any reason, may fix other terms and conditions of the loan, not inconsistent with the provisions of this Article. 13.03 Participant Loan Accounts. (a) Upon approval of a loan to a Participant by the Employer, an amount not in excess of the loan shall be transferred from the Participant's other investment fund(s), described in Section 6.05 of the Plan, to the Participant's Loan Account as of the Accounting Date immediately preceding the agreed upon date on which the loan is to be made. (b) The assets of a Participant's Loan Account may be invested and reinvested only in promissory notes received by the Plan from the Participant as consideration for a loan permitted by Section 13.01 of the Plan or in cash. Uninvested cash balances in a Participant's Loan Account shall not bear interest. No person who is otherwise a fiduciary of the Plan shall be liable for any loss, or by reason of any breach, that results from the Participant's exercise of such control. (c) Repayment of principal and payment of interest shall be made by payroll deduction or, where repayment cannot be made by payroll deduction, by check, and shall be invested in one (1) or more other investment funds, in accordance with Section 6.05 of the Plan, as of the next Accounting Date after payment thereof to the Trust. The amount so invested shall be deducted from the Participant's Loan Account. (d) The Employer shall have the authority to establish other reasonable rules, not inconsistent with the provisions of the Plan, governing the establishment and maintenance of Participant Loan Accounts. XIV. PLAN AMENDMENT, TERMINATION AND OPTIONAL PROVISIONS 14.01 Amendment by Employer. The Employer reserves the right, subject to · Section 14.02 of the Plan, to amend the Plan from time to time by either: (a) Filing an amended Adoption Agreement to change, delete, or add any optional provision, or MPP 03/25/98 (b) Continuing the Plan in the form of an amended and restated Plan and Trust. 14.02 No amendment to the Plan shall be effective to the extent that it has the effect of decreasing a Participant's accrued benefit. Notwithstanding the preceding sentence, a Participant's Account balance may be reduced to the extent permitted under section 412(c)(8) of the Code. For pUrposes of this paragraph, a Plan amendment which has the effect of decreasing a Participant's Account balance or eliminating an optional form of benefit, with respect to benefits attributable to service before the amendment shall be treated as reducing an accrued benefit. Furthermore, if the vesting schedule of the Plan is amended, in the case of an Employee who is a Participant as of the later of the date such amendment is adopted or the date it becomes effective, the nonforfeitable percentage (determined as of such date) of such Employee's right to his/her Employer-derived accrued benefit will not be less than his percentage computed under the plan without regard to such amendment. The Employer may (1) change the choice of options in the Adoption Agreement, (2) add overriding language in the Adoption Agreement when such language is necessary to satisfy sections 415 or 416 of the Code because of the required aggregation of multiple plans, and (3) add certain model amendments published by the Internal Revenue Service. Amendment of Vesting Schedule. If the Plan's vesting schedule is amended, or the Plan is amended in any way that directly or indirectly affects the computation of the Participant's nonforfeitable percentage, each Participant may elect, within a reasonable period after the adoption of the amendment or change, to have the nonforfeitable percentage computed under the Plan without regard to such amendment or change. The period during which the election may be made shall commence with the date the amendment is adopted or deemed to be made and shall end on the latest of: (a) Sixty (60) days after the amendment is adopted; (b) Sixty (60) days after the amendment becomes effective: or (c) Sixty (60) days after the Participant is issued written notice of the amendment by the Employer or Plan Administrator. 14.03 Termination by Employer. The Employer reserves the right to terminate this Plan. However, in the event of such termination no part of the Trust shall be u'sed or diverted to any purpose other than for the exclusive benefit of the Participants or their Beneficiaries, except as provided in this Section. MPP 03/25/98 41 Upon Plan termination or partial termination, all Account balances shall be valued at their fair market value and the Participant's right to his/her Employer Contribution Account shall be one hundred percent (100%) vested and nonforfeitable. Such amount and any other amounts held in the Participant's other Accounts shall be maintained for the Participant until paid pursuant to the terms of the Plan. Any amounts held in a suspense account, after all liabilities of the Plan to Participants and Beneficiaries have been satisfied or provided for, shall be paid to the Employer in accordance with the Code and regulations thereunder. In the event that the Commissioner of Internal Revenue determines that the Plan is not initially qualified under the Internal Revenue Code, any contribution made by the Employer incident to that initial qualification must be returned to the Employer within one year after the date the initial qualification is denied, but only if the application for the qualification is made by the time prescribed by law for filing the Employer's return for the year in which the Plan is adopted, or such later date as the Secretary of the Treasury may prescribe. 14.04 Discontinuance of Contributions. A permanent discontinuance of contributions to the Plan by the Employer, unless an amended and restated Plan is established, shall constitute a Plan termination. 14.05 Amendment by Plan Administrator. The Plan Administrator may amend this Plan upon thirty (30) days written notification to the Employer; provided, however, that any such amendment must be for the express purpose of maintaining compliance with applicable federal laws and regulations of the Internal Revenue Service. Such amendment shall become effective unless, within such 30-day period, the Employer notifies the Administrator, in writing, that it disapproves such amendment, in which case such amendment shall not become effective. In the event of such disapproval, the Administrator shall be under no obligation to continue acting as Administrator hereunder. 14.06 Optional Provisions. Any provision which is optional under this Plan shall become effective if and only if elected by the Employer and agreed to by the Plan Administrator. XV. ADMINISTI::b&TION 15.01 Powers of the Employer. The Employer shall have the following powers and duties: MPP 03~25~98 42 (a) To appoint and remove, with or without cause, the Plan Administrator; (b) To amend or terminate the Plan pursuant to the provisions of Article XIV; (c) To appoint a committee to facilitate administration of the Plan and communications to Participants; To decide all questions of eligibility (1) for Plan participation, and (2) upon appeal by any Participant, Employee or Beneficiary, for the payment of benefits; (e) To engage an independent qualifted public accountant, when required to do so by law, to prepare annually the audited financial statements of the Plan's operation; (0 To take all actions and to communicate to the Plan Administrator in writing all necessary information to carry out the terms of the Plan and Trust; and (g) To notify the Plan Administrator in wdting of the termination of the. Plan. 15.02 Duties of the Plan Administrator. The Plan Administrator shall have the following powers and duties: (a) To construe and interpret the provisions of the Plan; (b) To maintain and provide such returns, reports, schedules, descriptions, and individual Account statements, as are required by law within the times prescribed by law; and to furnish to the Employer, upon request, copies of any or all such materials, and further, to make copies of such instruments, reports, descriptions, and statements as are required by law available for examination by Participants and such of their Beneficiaries who are or may be entitled to benefits under the Plan in such places and in such manner as required by law; (c) To obtain from the Employer such information as shall be necessary for the proper administration of the Plan; (d) To determine the amount, manner, and time of payment of benefits hereunder; MPP 03/25/98 43 15.03 15.04 15.05 15.06 15.07 (e) To appoint and retain such agents, counsel, and accountants for the purpose of properly administering the Plan; (f) To distribute assets of the Trust to each Participant and Beneficiary in accordance with Article X of the Plan; (g) To pay expenses from the Trust pursuant to Section 6.03 of the Plan; and (h) To do such other acts reasonably required to administer the Plan in accordance with its provisions or as may be provided for or required by law. Protection of the Employer. The Employer shall not be liable for the acts or omissions of the Plan Administrator, but only to the extent that such acts or omissions do not result from the Employer's failure to provide ac- curate or timely information as required or necessary for proper administration of the Plan. Protection of the Plan Administrator. The Plan Administrator may rely upon any certificate, notice or direction purporting to have been signed on behalf of the Employer which the Plan Administrator believes to have been signed by a duly designated official of the Employer. Resignation or Removal of Plan Administrator. The Plan Administrator may resign at any time effective upon sixty (60) days prior written notice to the Employer. The Plan Administrator may be removed by the Employer at any time upon sixty (60) days prior written notice to the Plan Administrator. Upon the resignation or removal of the Plan Administrator, the Employer may appoint a successor Plan Administrator; failing such appointment, the Employer shall assume the powers and duties of Plan Administrator. Upon the resignation or removal of the Plan Administrator, any Trust assets invested by or held in the name of the Plan Administrator shall be transferred to the trustee in cash or property, at fair market value, except that the return of Trust assets invested in a contract issued by an insurance company shall be governed by the terms of that contract. No Termination Penalty. The Plan Administrator shall have no authority or discretion to impose any termination penalty upon its removal. Decisions of the Plan Administrator. All constructions, determinations, and interpretations made by the Plan Administrator pursuant to Section 15.02(a) or (d) shall be final and binding on all persons participating in the Plan, given deference in all courts of law to the greatest extent allowed by MPP 03~25~98 44 XVI. applicable law, and shall not be overturned or set aside by any court of law unless found to be arbitrary or capricious, or made in bad faith. MISCELLANEOUS 16.01 Nonguarantee of Employment. Nothing contained in this Plan shall be construed as a contract of employment between the Employer and any Employee. or as a right of an Employee to be continued in the employment of the Employer. as a limitation of the right of the Employer to discharge any of its Employees, with or without cause. 16.02 Rights to Trust Assets. No Employee or Beneficiary shall have any right to, or interest in, any assets of the Trust upon termination of his/her employment or otherwise, except as provided from time to time under this Plan, and then only to the extent of the benefits payable under the Plan to such Employee or Beneficiary out of the assets of the Trust. All payments of benefits as provided for in this Plan shall be made solely out of the assets of the Trust and none of the fiduciaries shall be liable therefor in any manner. 16.03 Nonalienation of Benefits. Except as provided in Section 16.04 of the Plan, benefits payable under this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any kind, either voluntary or involuntary, prior to actually being received by the person entitled to the benefit under the terms of the Plan; and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable hereunder, shall be void. The Trust shall not in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits hereunder. 16.04 Qualified Domestic Relations Order. Notwithstanding Section 16.03 of the Plan, amounts may be paid with respect to a Participant pursuant to a domestic relations order, but if and only if the order is determined to be a qualified domestic relations order within the meaning of section 414(p) of the Code or any domestic relations order entered before January 1, 1985. 16.05 Nonforfeitability of Benefits. Subject only to the specific provisions of this Plan. nothing shall be deemed to deprive a Participant of his/her right to the Nonforfeitable Interest to which he/she becomes entitled in accord- ance with the provisions of the Plan. 16.06 Incompetency of Payee.' In the event any benefit is payable to a m~nor or ncompetent, to a person otherwise under legal disability, or to a person MPP 03/25/98 45 16.07 16.08 who, in the sole judgment of the Employer, is by reason of advanced age, illness, or other physical or mental incapacity incapable of handling the disposition of his/her property, the Employer may apply the whole or any part of such benefit directly to the care, comfort, maintenance, support, education, or use of such person or pay or distribute the whole or any part of such benefit to: (a) The parent of such person; (b) The guardian, committee, or other legal representative, wherever appointed, of such person; (c) The person with whom such person resides; (d) Any person having the care and control of such person; or (e) Such person personally. The receipt of the person to whom any such payment or distribution is so made shall be full and complete discharge therefor. Inability to Locate Payee. Anything to the contrary herein notwithstanding, if the Employer is unable, after reasonable effort, to locate any Participant or Beneficiary to whom an amount is payable hereunder, such amount shall be forfeited and held in the Trust for application against the next succeeding Employer Contribution or con- tributions required to be made hereunder. Notwithstanding the foregoing, however, such amount shall be reinstated, by means of an additional Employer contribution, if and when a claim for the forfeited amount is sub- sequently made by the Participant or Beneficiary or if the Employer receives proof of death of such person, satisfactory to the Employer. To the extent not inconsistent with applicable law, any benefits lost by reason of escheat under applicable state law shall be considered forfeited and shall not be reinstated. Mergers, Consolidations, and Transfer of Assets. The Plan shall not be merged into or consolidated with any other-plan, nor shall any of its assets or liabilities be transferred into any such other plan, unless each Par- ticipant in the Plan would (if the Plan then terminated) receive a benefit immediately after the merger, consolidation, or transfer that is equal to or greater than the benefit he/she would have been entitled to receive im- mediately before the merger, consolidation, or:transfer (if the Plan had then terminated). MPP 03/25/98 45 16.09 Employer Records. Records of the Employer as to an Employee's or Participant's Period of Service. termination of service and the reason therefor, leaves of absence, reemployment. Earnings, and Compensation will be conclusive on all persons, unless determined to be incorrect. 16.10 Gender and Number. The masculine pronoun, whenever used herein, shall include the feminine pronoun, and the singular shall include the plural, except where the context requires otherwise. 16.11 Applicable Law. The Plan shall be construed under the laws of the State where the Employer is located, except to the extent superseded by federal law. The Plan is established with the intent that it meets the requirements under the Code. The provisions of this Plan shall be interpreted in conformity with these requirements. In the event of any conflict between the Plan and a policy or contract issued hereunder, the Plan provisions shall control; provided, however, no Plan amendment shall supersede an existing policy or contract unless such amendment is required to maintain qualification under section 401 of the Code. MPP 03/25/98 47 MEETING DATE: December 21, 1999 ITEM# ~-~//~ N CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Municipal Court Signature Authority CATEGORY: X CONSENT ORDINANCE BUSINESS HEARING FYI XRESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER BUDGET IMPACT: Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Municipal Court Signature Authority Resolution and cover memorandum to the Finance Committee SUMMARY/BACKGROUND: This resolution is to establish the Court Administrator, Court Services Supervisor and the Accounting Court Clerk as authorized signers on the Municipal Court Trust Account (for bail, etc.). As with all bank accounts, the City Manager and Management Services Director are also authorized signers. CITY COUNCIL COMMITTEE RECOMMENDATION: Was reviewed and approved by the Finance Committee during their meeting on December 15, 1999. CITY MANAGER RECOMMENDATION: Approve Council Committee Recommendation APPROVED FOR INCLUSION IN COUNCIL PACKET: /.' ,Z',?; ,.',, :~ /):, ,~... (BELOW' TO BE COMPLETED BY CITY CLERK'S OFFICE COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st READING ENACTMENT READ ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: TO: FROM: SUBJECT: December 15, 1999 Finance, Economic Development and Regional Affairs Committee Marie Mosley, Deputy Management Services Director'~ ~ Municipal Court Signature Authorization Attached is th, Accounting Cz authorized si resolution to designate the Court Administrator, the Court Services Supervisor and the ~rt Clerk, in addition to the City Manager and Management Services Director positions as on the Municipal Court Checking Account. Previously, you also designating the bank accounts. This court checking a resolution authorizing US Bank as the City's qualified depository bank and Manager and the Management Services Director as authorized signers on the [ution adds the above three positions as authorized signers on the municipal In addition, the dollar Municipal Court deals require dual signature on anyth operate more effectively as the uiring two signatures has been increased from $500 to $1,000. Since the with $500, $750 and $1,000 bail, by increasing the limit to $1,000 will in excess of the $1,000. This will allow the Municipal Court to issue checks that need to have proper signatures. Committee Action: Recc be forwarded to the City Council for approval APPROVAL OF COMMITTEE ACTION: Committee~hair Committee Member ./ _q3Ommittee Member RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DESIGNATING THE QUALIFIED PUBLIC DEPOSITORY WHERE CHECKS ARE TO BE DRAWN, DESIGNATING THOSE PERSONS AUTHORIZED TO SIGN CHECKS, DRAFTS OR WARRANTS ON BEHALF OF THE CITY. (REPEALS RESOLUTIONS NO. 89-09, NO. 90-22, NO. 90-30, 94-174 AND NO. 99- 304). DRAFT THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS: Section 1. Repealer. Resolution No. 99-304, adopted October 5, 1999 is hereby repealed. Section 2. City's Depository Bank Designated. US Bank, a national banking association, is hereby designated to be a the qualified public depository bank whereon City checks are to be drawn and certain accounts are to be established from time to time on behalf of the City. Section 3. City's Authorized Signatures. The following designated positions, the City Manager and the Management Services Director, are hereby authorized to open such checking, draft, warrant or other depository accounts for and on behalf of the City, as they shall deem necessary from time to time. A. City Funds. The following designated positions, The City Manager and the Management Services Director, are hereby authorized to sign any checks, drafts or warrants drawn on any accounts, so established. Any checks, drafts or warrants drawn on any accounts so established, in excess of One Thousand Dollars and no/100 ($1,000.00) must be signed by both the City Manager and the Management Services Director. B. Municipal Court Funds. The following designated positions, the Court Administrator, the Court Services Supervisor and the Accounting Court Clerk, are hereby authorized to sign any checks, drafts or warrants on behalf of the Municipal Court. Any checks, drafts or warrants drawn on the Municipal Court checking account, in excess of One Thousand Dollars and no/100 ($1,000.00) must be signed by any two of the designated authorized signatories. Section 4. Reliance on Authorization. US Bank is entitled to rely and act in accordance with the authorizations contained in this resolution until such time as it is notified by a new resolution of the Federal Way City Council amending or repealing this resolution. Section 5. Severability. If any section, sentence, clause or phrase of this resolution should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this resolution. Section 6. Ratification. Any act consistent with the authority and prior to the effective date of the resolution is hereby ratified and affirmed. Section 7. Effective Date. This resolution shall be effective immediately upon passage by the Federal Way City Council. RESOLVED BY THE CITY COUNCIL OF THE CITY OF FEDERAL WAY. WASHINGTON, THIS DAY OF , 1999. CITY OF FEDEAL WAY ATTEST: MAYOR, RON GINTZ CITY CLERK, N. CHRISTINE GREEN APPROVED AS TO FORM: CITY ATTORNEY, LONDI K. LINDELL FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO. K:\fin\cash\signature resolution CITY OF FEDERAL WAY City Council AGENDA ITEM CATEGORY: BUDGET IMPACT: ~X CONSENT ORDINANCE BUSINESS HEARING FYI _~_X RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ 0 Expenditure Amt: $ 0 Contingency Reqd: $ 0 ATTACHMENTS: 1) Memo to PRHSPS dated December 7, 1999, and 2) Resolution SUMMARY/BACKGROUND: See next page. CITY COUNCIL COMMITTEE RECOMMENDATION: Motion to approve the proposed Resolution Authorizing the Municipal Court to Conduct Proceedings in King County and forward to the full Council meeting December 21, 1999, for consideration. CITY MANAGER RECOMMENDATION: Approve committee recommendation. APPROVED FOR INCLUSION IN COUNCIL PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # 12/uT/gg 12:01 FAX 2R3 661 4189 Item ~]001 ~_d- u U.L CITY OF FEDERAL WAY CITY COUNCIL PARKS/RECREATION~ SERVICES/ PUBLIC SAFETY COMMITTEE December 13, 1~99 Meeting Date: From: Subject: December 7, 1999 Resolution Establishing Venue for the Federal Way Municipal Court. ]lif, kgr!.ql~: Pursuit to Oralnancc No. 99-3 S 9, the Federal Way Municipal Court was crealed and will be operational on January 1, 2000. One aspect of the operations for thc Municipal Court includes arraignment proceedings. There are arraignment proceedings for suspects held in custody at thc Kent Regional Justice Ccnt~r, and arraignment proceedings for suspects not held in custody, The Municipal Coup. intends to conduct arraignments for suspcc~ held in custody by video. The process will be that the suspect will bc escorted to a specific room at the Kent Regional Justice Center, which is equipped with a video tran,~mltter; the prosecutor and defense attorney will also be present; the judge, however, will b~ in the court room at the Municipal Court. Building and will conduct the proceedings via monitor. Consequently, the suspect will not have to be ~mu.~ported tn and'from the Kent P~eg[o_n. al Justice Center for an-aiEnmcnt, thus saving the tr~--~'portafion cost and preventing the possibility of an escape. The video ~ral~ment equipment and. arrangements will not be op~a~o-~l ~ appro~matcly M~ch, 2000. ~e M~cip~ Co~ m~ cond~t a~ ~~n~ ~ ~son ~ such ~me. The ~g Co~W Dis~ct Co~ ~ ~acio~ly offered ~t, fi ~ ~m; te M~cipal Co~ maY ~e a room a ~e Kent Regiousl J~ Ccn~r for ~ cusWdy ~i~ents a no ~fionE cost owr W~t ~e C~ c~ently pays for d~ily j~ ~ance fccs. ~ou~ ~ecffic ckc~ces for ~e proposed resolution ~css ~ curdy ~men~, ~e~ may bca si~fion m ~ ~t~im ~cn Ke~t ~egi0nsl J~ce Center is not av~le ~d ~o~er ~g Co~W DiVot Co~ mu~ be ~ed. ~crcfom, the propos~ re~lu~on wo~d a~o~e co~ proceedings ~ ~g Co~W as ~c~s~. Staff recommends the adoption of the proposed resolution to allow Municipal Court proceedings within ICing County. Committee Recommendation: Motion to approve the proposed Resolution Authorizing the Municipal Court to Conduct Proceedings in King County and forward to the full Council meeting on December 21, 1999, for consideration. APPROVAL OF COMMITTEE REPORT: f f.' Committee Member// G6mmittee Member K:\FORMS\coverm unicourt.ven RESOLUTION NO. DRAFT ! A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AUTHORIZING THE MUNICIPAL COURT TO CONDUCT PROCEEDINGS WITHIN KING COUNTY. WHEREAS, pursuant to Federal Way City Ordinance No. 99-339 the City of Federal Way established the Federal Way Municipal Court; and WHEREAS, the Federal Way Municipal Court will be operational on January 1, 2000; and WHEREAS, some suspects of crimes are held in custody at the Kent Regional Justice Center, in King County; and WHEREAS, the Municipal Court intends to arraign the suspects at the Kent Regional Justice Center by video arraignment thereby eliminating the need to transport the suspects to the Federal Way Municipal Court; and WHEREAS, the video arraignment process will not be operational until approximately March, 2000; and WHEREAS, the suspects may be transported to from the Kent Regional Justice Center to the Municipal Court in Federal Way for arraignment or the Municipal Court may conduct proceedings at the Kent Regional Justice Center; and WHEREAS, the Council finds that conducting proceedings at the Kent Regional Justice Center may be more cost effective and efficient. Res. # , Page 1 NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY HEREBY RESOLVES AS FOLLOWS: Section 1. Venue. The Federal Way Municipal Court may conduct proceedings outside the City limits within King County as necessary. Section 2. Sevembili _ty. If any section, sentence, clause or phrase of this resolution should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this resolution. Section 3. Ratification. Any act consistent with the authority and prior to the effective date of the resolution is hereby ratified and affirmed. Section 4. Effective Date. This resolution shall be effective immediately upon passage by the Federal Way City Council. RESOLVED BY THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, this __ day of ., 19 CITY OF FEDERAL WAY ATTEST: MAYOR, RON GINTZ CITY CLERK, N. CHRISTINE GREEN, CMC Res. # , Page 2 APPROVED AS TO FORM: CITY ATTORNEY, LONDI K. LINDELL FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO. k:h'eso~nunicourt.ven Res. # , Page 3 CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Renegotiated Interlocal Agreement with Federal Way School District No. 210 for School Security CATEGORY: BUDGET IMPACT: XXCONSENT ORDINANCE ...... BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Copy of proposed Renegotiated Interlocal Agreement; letter, dated October 27, 1999, SUMMARY/BACKGROUND: On October 19, 1999, the Council approved in concept the provision of two school resource officers to the Federal Way School District, with a third officer being subject to Council authorization of an additional FTE during the mid-biennial budget adjustment process, and directed the City Manager to reopen negotiations with the District for the purpose of addressing Council concerns with the compensation and termination provisions of the Interlocal Agreement. The District agreed to reopen negotiations. The attached Interlocal Agreement contains underlines and strike lines to indicate the proposed amendments as follows: (1) automatic renewal of the agreement year to year at the conclusion of the 3 year term unless terminated, which is similar to King County's agreement; (2) the District may terminate the agreement during the school year only for "just cause" provided that it provides 90 written notice to the City; and (3) the compensation is $45,000 per officer for the first year. The proposed amendments to the Interlocal Agreement were presented the Federal Way School Board at its meeting on December 13, 1999. On December 14, 1999, Tom Murphy, Acting Superintendent, notified the City that the District agreed with the renegotiated terms of the Interlocal Agreement. Council authorized 2 school resource officers in the 1999-2000 biennium budget. On December 7, 1999, Council authorized the third FTE school resource officer during the mid-biennium budget adjustment. CITY COUNCIL COMMITTEE RECOMMENDATION: On September 13, 1999 the Committee .... ............................................................................................ CITY MANAGER RECOMMENDATION: Approve the renegotiated Interlocal Agreement with Federal Way School District. If pulled from the consent agenda, the motion should be as follows: I hereby move to approve the amended lnteriocal Agreement between the City of Federal Way and the Federal Way School District. APPROVED FOR INk_lOlL PACKET: __.~-__~_~_~__~_~__.~__~ ' ' jf -' (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # K:\agenditem\renegotfwsdsec.agt DRAFT / ? INTERLOCAL AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND FEDERAL WAY SCHOOL DISTRICT NO. 210 FOR SCHOOL RESOURCE OFFICERS This Agreement is dated effective August 31, 1999 and is made and entered into by and between the City of Federal Way (hereinafter "City") and Federal Way School District No. 210 (hereinafter "District"), collectively "Parties". 1. The City and the District recognize commissioned police officers on the school campuses provide the unique opportunity to heighten safety, to increase public awareness, and to increase outreach in the community. 2. Chapter 39.34 (Interlocal CooperationAct) permits local governmental units to make the most efficient use of their powers by enabling them to cooperate with other entities to provide services in a manner best serving the needs and development of local communities. 3. The Parties hereto desire and by this agreement enter into an Interlocal Cooperative Agreement ("Agreement") wherein the City will provide school campus security with fully commissioned police officers. 4. The Parties hereto desire to set forth their rights, duties and responsibilities with respect to applicable laws, ordinances, procedures as established by the Parties hereto and the State of Washington. NOW, THEREFORE, it is hereby covenanted and agreed to by and between the Parties hereto as follows: I. DEFINITIONS The following definitions shall apply to this Agreement: 1.1 City - The City of Federal Way. 1.2 District - Federal Way School District No. 210. 1.3 School Resource Officer ("SRO") - A fully commissioned police officer who is assigned by the Department to provide law enforcement and security services to the District. The 1.4 1.5 1.6 1.7 1.8 1.9 1.10 SRO assignment at the school campuses is the equivalent of a .70 full time police officer with the remainder .30 to be assigned at the discretion of the Department. School Campus - The school building, all parking lots or outside common areas adjacent to the school building, and all property within one thousand feet (1000'). Department - The Department of Public Safety of the City of Federal Way. School Year - One hundred eighty (180) days of official school days, one day before and one day after for preparation, closing and staff meeting totaling one hundred eighty-two (182) days between the months of August and June. Annual Cost Letter - Anticipated annual costs for services for the next school year. The anticipated costs are calculated as follows: hours of work per calendar year total 2080 hours, or 260 eight-hour days. The work performed by a SRO represents a staff equivalent of .70 of a full-time position. The anticipated costs for services will be calculated on the .70 equivalent. Extra-duty Assignments - Extra-duty assignments include, but are not limited to, athletic games, dances, graduations and other events that occur outside the normal school day as defined in Article V. Hours of Work. Daily Routine - The daily routine includes assignment to various locations on/around the school campus, or various events. The daily routine does not include policies, procedures, guidelines or work rules. Overtime - Overtime costs are calculated and paid in accordance with the Fair Labor Standards Act and the Guild Contract. II. PURPOSE School Campus Security. It is the intent of the Parties that City police officers provide school campus security for the schools. An SRO will be assigned to the following high schools: Decatur, Federal Way and Truman; for a total of three positions. 3.1 III. CITY'S RESPONSIBILITIES SRO Assignment to the School Campus. Upon receipt of Notice from the District, the City agrees to assign an SRO, as defined in Section 1.3, for a rotation of one school year. - 2 - In the event of operational needs or other unforseen circumstances, the City will assign the replacement SRO. 3.2 Performance Evaluations, Discipline, Assignment, and Other Personnel Actions. The City will continue to evaluate the performance of a SRO, to administer discipline, to investigate allegations of misconduct, assign duties, and take any other personnel action in accordance with applicable City policies, guidelines, and/or collective bargaining agreement. The City, in its discretion, may utilize the District's performance comments/observations referenced in Section 4.2. 3.3 Staffing. A. Scheduled Absence. In the event a SRO scheduled an absence of more than one day, the City agrees to provide a full day replacement for each day of absence. The City shall not be obligated to provide a replacement SRO for approved training for less than four (4) hours. B. Unscheduled Absence. In the event of an unscheduled absence due to illness or emergency, the City agrees to provide a replacement for five (5) hours during the hours from 1000 (10:00 a.m) to 1500 (3:00 p.m.). C. Absence for Other Duties and/or Training. The City agrees to provide a replacement for the hours of absence in the event a SRO is absent more than four (4) hours for Department duties and/or training. 3.4 Transport of Criminal Suspects. After an SRO arrests individuals or detains individuals suspected of criminal activity, the SRO will normally remain on the school campus, and additional police officers will be dispatched to transport said individuals. The City, in its discretion, may require the SRO to leave the school campus and transport the individuals. 3.5 Invoices. A. Regular SRO work. The City will submit two invoices during the school year, one in January and one in June, for work performed. Each invoice represents work for 91 days, which equates to one-half of the school year. B. Extra-duty assignments. The City will submit an invoice monthly for all work as a result of extra-duty assignments. C. Overtime. The City will submit an invoice monthly for all overtime worked. The City maintains responsibility to document overtime. 3.6 Annual Cost Letter. On or before April 1 of each year the City will provide the District Security Manager an Annual Cost Letter estimating the anticipated annual costs for services for the next school year. 3.7 Uniform and Equipment. A. Uniforms. Normally a SRO will be attired in police uniform. However, either upon the request of the principal, and approval by the City, other attire may be approved for specific occasions. B. Transportation. The City, in its discretion, may provide vehicles or other means of transportation for the SRO. C. Radio Communications. The City will provide the SRO a radio capable of routine and/or emergency interaction with dispatch operations, and integrated with the regional public safety radio network. 3.8 Extra-duty assignments. The City agrees to attempt to assign the extra-duty work to the SRO assigned to the particular school campus but will also attempt to reduce any overtime. 3.9 Minimum Benefits. Pursuant to RCW 28A.400.285, persons performing services under this Agreement shall be provided health benefits similar to those provided School District employees who would otherwise perform the work, but in no case are such health benefits required to be greater than the benefits provided for basic health care services under chapter 70.47 RCW. 3.10 Record Check. Pursuant to RCW28A.400.303,the City shall require arecord check through the Washington State Patrol criminal identification system under RCW 43.43.830 through 43.43.834, 10.97.030 and 10.97.050 and through the federal bureau of investigation before hiring any employee who will have regularly scheduled unsupervised access to children in the School District's schools. The record check shall include a fingerprint check using a complete Washington state criminal identification fingerprint card. The City shall provide a copy of the record report to the applicant. When necessary, applicants may be employed on a conditional basis pending completion of the investigation. If the applicant has had a record check within the previous two years, the City may waive the requirement. - 4 - 3.11 Crimes Against Children. Pursuant to RCW 28A.400.330, as now or hereafter amended, the City shall prohibit any employee of the City from working at a public school who has contact with children at a public school during the course of his/her employment and who has pled guilty to or been convicted of any felony crime involving the physical neglect of a child under chapter 9A.42 RCW, the physical injury or death of a child under chapter 9A.32 or 9A.36 RCW (except motor vehicle violations under chapter 46.61 RCW), sexual exploitation of a child under chapter 9.68A RCW, sexual offenses under 9A.44 RCW where a minor is a victim, promoting prostitution of a minor under chapter 9A.88 RCW, the sale or purchase of a minor child under RCW 9A.64.030, or violation of similar laws or another jurisdiction. Any failure to comply with this section shall be grounds for the School District to immediately terminate this Agreement. IV. DISTRICT'S RESPONSIBILITIES 4.1 District Request Removal of SRO. The District may request removal of a SRO for unsatisfactory performance or for incompatibility. All requests for removal must be in writing from the principal of the school being served and submitted to the Chief of Police. 4.2 Performance Comments. The District will provide the City with performance comments and observations concerning the SRO on or before July 15 of each year. 4.3 Compensation. In the first year of this Agreement the District will pay a flat rate of fortyz five thousand dollars ($45~000.00 $40;000) for each SRO position per school year. Upon receipt of an invoice, the District will reimburse the City within thirty (30) days, exclusive of overtime and extra duty assignments costs. A. Annual Negotiation of Costs. After April 1 of each year, the District agrees to negotiate the compensation based upon the anticipated costs of services as set forth in the Annual Cost Letter in Section 3.6. B. Extra-duty assignments. The District agrees to pay the prevailing hourly rate for each extra duty hour worked by a police officer. In the event that overtime is incurred, the District agrees to pay the overtime rate as defined in Section 1.10. C. New Position(s). In the event the City and the District agree to establish additional SRO position(s) during the school year, the District will pay the proportionate amount based upon the actual days worked. 4.4 4.5 ¸4.6 D. Overtime. The District agrees to pay any and all overtime costs in accordance with the Fair Labor Standards Act and the Guild Contract. Office Space/Equipment. A. The District will provide an office space, desk, dedicated phone line, voice mail, district and internet based electronic mail, a digital pager and a computer. B. The District will provide access to private interview rooms. C. Generally the school campus of the District will provide a site-based portable radio to permit communicationsbetween staff and the SRO, and to enable monitoring of staff/campus activities. In the event a site-based radio is not provided, it is the responsibility of the site principal to ensure that acceptable alternative communication protocols and methods are in place. Extra Duty Assignments. The District reserves the right to negotiate with the City for "extra- duty" police services as defined in Section 1.8. The District's first preference is that the SRO assigned to the school would also be assigned to the extra duty assignments. However, the District recognizes that another officer may be assigned. Assignment of Daily Routine. The principal may assign the daily routine of the SRO provided the assignment does not conflict with City policies, guidelines, protocols, work rules and/or applicable collective bargaining agreement. 4.7 Transport Students. The District will maintain responsibility to transport students not involved in criminal activity. V. HOURS OF WORK An SRO will work an eight-hour shift, inclusive of the lunch period. The SRO may be subject to call during the lunch period. The actual hours worked will be determined by the needs of the school principal. Generally hours for high schools approximate 0645 (6:45 a.m.) to 1445 (2:45 p.m). The parties recognize that the SRO is subject to the Fair Labor Standards Act (FLSA), and that overtime may occur. - 6 - VI. TERM The term of this Agreement shall be for an initial period of three years, from commcnc'~ng c,n August 31, 1999 until ~-" .... "'~:--' ~- ,~,~ ,..,.,,..~,~..~ ,,.. August 30, 2002. Thereafter, this Agreement shall automatically renew year to year unless terminated pursuant to Section VII hereof, VII. TERMINATION 7.1 The pa-tics ma) ........" .... L ..... ......... .~ agree to District may terminate this Agreement ,L any ':-~ for "just cause" provided that it has provided ninety (90) days prior written notice to the City. "Just Cause" shall mean the City's failure to perform its obligations under this Agreement following notice from the District of such failure and after an opportunity for the City to cure or satisfy_ such obligations. 7.2 Either party may terminate this~reement with or without cause to _~,:~_ ~ ,~.~ : ........., : .... , : ..... ,~n, .~ .... ,.~ .... ~.~ _,-,-~_.:..~ ,~,_ the end of the school year by ninety (90) days prior written notice to the other party. The 1999-2000 school year is August 31, 1999 to June 21, 2000, both dates inclusive. VIII. INSURANCE 8.1 Amount. It is hereby understood and agreed that each Party to this Agreement shall obtain and maintain public liability insurance in an amount not less than TWO MILLION AND NO/100 DOLLARS ($2,000,000) single limit liability. 8.2 Certificate. Each Party shall provide the other Party with a certificate of public liability insurance naming the other Party as an additional insured and showing proof of the required insurance coverage. Insurance coverage shall be maintained at all times. IX. INDEMNIFICATION 9.1 The District. The District agrees to defend, indemnify, and hold the City, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Agreement to the - 7 - 9.2 9.3 extent caused by the negligent acts, errors or omissions of the District, its parmers, shareholders, agents, employees, or by the District's breach of this Agreement. The City. The City agrees to defend, indemnify, and hold the District, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Agreement to the extent caused by the negligent acts, errors or omissions of the City, its partners, shareholders, agents, employees, or by the City's breach of this Agreement. The provisions of this article shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 10.1 10.2 10.3 X. GENERAL PROVISIONS Administration and Notice. The responsibility for overseeing the compliance with the provisions of this Agreement shall be handled jointly between the Parties, and no separate legal or administrative entity shall be formed by the Parties for such purpose. The contract representative for the City shall be the City Manager or his or her designee, 33530 1 st Way South, Federal Way, Washington 98003. The contract administrator on behalf of the District shall be the Superintendent or his or her designee, Federal Way Public Schools, Administrative Office, 31405 18th South, Federal Way, Washington 98003. Independent Contractor. It is the intention of the City and of the District that each SRO is a City employee. Confidentiality. Both the School District and the City are governed by laws requiring confidentiality for certain records and information contained therein. Pursuant to RCW 13.50.010(1)(a) the City and the School District are "juvenile justice and care" agencies which maintain records (hereinafter "juvenile records") as defined in RCW 13.50.010(1)(c). Both parties agree that the juvenile records will only be released in accordance with RCW 13.50.050(4). The City will not release copies of reports, investigations, or other documents which are not juvenile records if such records are exempt from disclosure under either the Public Disclosure Act, RCW 42.17.250-42.17.348, or the Criminal Privacy Act, RCW 10.97 et seq. Pursuant to the terms of the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g and regulations promulgated thereunder, City personnel providing security services to the - 8 - School District may be provided access to student records in the course of their duties and will be expected to maintain the confidentiality of such information except as disclosure is permitted by law. For the purposes of the foregoing statute, the City shall be recognized as an official law enforcement unit of the School District. 10.4 Entire Agreement. This Agreement contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. 10.5 Modification. No provision of this Agreement may be amended or added to except by agreement in writing signed by the Parties or their respective successors in interest. 10.6 Full Force and Effect. Any provision of this Agreement which is declared invalid, void or illegal shall in no way affect, impair, or invalidate any other provision hereof and such other provisions shall remain in full force and effect. 10.7 Assignment. Neither the City nor the District shall have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the other Party. 10.8 Attorney Fees. In the event the City or the District defaults on the performance of any terms in this Agreement, and the District or City places the enforcement of the Agreement or any part thereof, or the collection of any monies due, or to become due hereunder, or recovery of possession of any belongings, in the hands of an attorney, or file suit upon the same, each Party shall pay all its own attorney's fees, costs and expenses. The venue for any dispute related to this Agreement shall be King County, Washington. 10.9 No Waiver. Failure of either Party to declare any breach or default immediately upon occurrence thereof, or delay in taking any action in connection with, shall not waive such breach or default, but either Party shall have the right to declare any such breach or default at any time and take such actions that might be lawful or authorized hereunder either at law or in equity. Failure of the either Party to declare one breach or default does not act as a waiver of either Party's right to declare another breach or default. 10.10 Arbitration. Disagreement concerning the interpretation or application of the provisions of this Agreement are subject to arbitration provided that the City Manager, or his or her designee, and the District Superintendent, or his or her designee, have discussed and attempted to settle the dispute. The Party desiring arbitration shall submit written notice of the intent to arbitrate along with the basis for the dispute. Following receipt of the notice to arbitrate, the other Party may request a meeting within fourteen (14) working days in attempt 10.11 10.12 10.13 below. to resolve the matter. If the matter cannot be resolved, the Parties shall first attempt to select an arbitrator. If no agreement can be reached on the selection of the arbitrator, the City and the District agree to use the services of the American Arbitration Association for the selection of the arbitrator. Each party shall be responsible for its own costs and fees incurred in preparing for and participating in the arbitration. The arbitrator fees along with any administration fee shall be borne equally by the City and by the District. The arbitrator shall determine the controversy in accordance with the laws of the State of Washington. The arbitrator's decision shall be binding upon both parties. Captions. The respective captions of the Sections of this Agreement are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect any of the provisions of this Agreement. Remedies Cumulative. Any remedies provided for under the terms of this Agreement are not intended to be exclusive, but shall be cumulative with all other remedies available at law, in equity or by statute. Equal Opportunity to Draft. The parties have participated and had an equal opportunity to participate in the drafting of this Agreement, and the Exhibits, if any, attached. No ambiguity shall be construed against any party upon a claim that party drafted the ambiguous language. IN WITNESS whereof the Parties have executed this Agreement the day and year set forth CITY OF FEDERAL WAY FEDERAL WAY SCHOOL DISTRICT NO. 210 By: David H. Moseley Its City Manager 33530 1st Way South Federal Way, WA 98003 By: Thomas Murphy Its Acting Superintendent 31405 18th South Federal Way, WA 98003 Date: Date: - lO APPROVED AS TO FORM: Londi K. Lindell City Attorney K:\document\7SCHOOL.rev APPROVED AS TO FORM: School District Attorney CITY OFfs, (253) 661-40OO FEDERAL WAY, WA 98003-6210 (253) 661-4013 October 27, 1999 'Mr. Tom Murphy Acting Superintendent Federal Way School District 31405 - 18' Avenue S. Federal Way, WA 98003-5433 RE: S~ource Officers Dear Mr. Mu~~ · Thank you for meeting with me on Friday, October 22, 1999 to discuss the continued collaboration between the City of Federal Way and the Federal Way School District. As you are aware, on October 19, 1999 the City Council approved the proposed Interlocal, in concept, for three school resource officers to be placed in Decatur, Federal Way and and Truman High Schools ("Interlocal"), but directed me to meet with you to discuss revisions to Section 4.3, Section VI, and Section VII as follows: TelTn: The Interlocal provides for a 3-year term. The City is seeking to add language contained in the Interlocal entered into between the School District and King County, which would provide that after the end of the 3-year term, the Interlocal will automatically renew year to year, until terminated. Termination Notice: The City is proposing a 90-day notice of termination for "just cause." Just cause would mean the City's failure to perform its obligations under the terms of the Interlocat. Mr. Tom Murphy Acting Superintendent Federal Way School District October 27, 1999 Page 2 Compensation: The City is proposing an annual cost per officer equal to $50,471 per year during the 3-year tenn. At the end of the 3-year term, the parties may renegotiate the price. Again, thank you for your assistance in presenting these requested amendments to your Board Members, and the City looks forward to the finalization of this Intefloeal. Sincerely, David H. Moseley City Manager DHM:emr K:~Letter~vsd.sro CITY OF FEDERAL WAY CITY ATTORNEY'S OFFICE Memorandum DATE: TO: FROM: SUBJECT: December 15, 1999 Federal Way City Council Members Bob C. Sterbank, Deputy City Attorney Lakehaven Comprehensive Wastewater Plan Under RCW 57.16, the City of Federal Way has authority to approve or reject Lakehaven's Comprehensive Water and Wastewater Plans. The Council may recall that earlier this year, City staff retained a consultant to review the District's Comprehensive Water Plan. Staff brought the results of the consultant's review forward to Council, and the Council approved the Plan. Staffare currently undergoing a similar process with respect to the District's Wastewater (or Sewer) Plan. The City and its consultant held an informational meeting with District representatives during the week of December 6. At the meeting, the District acknowledged that revisions to the Plan's Financing Element were necessary to meet the standards the City set during review of the Water Plan (i. e., that the Plan disclose both a means by which the District could finance the capital improvements outlined in the Plan, and any rate increases that necessary for such financing). The District also stated that before it could make the necessary revisions, it first needed to complete an ongoing rate study. The District does not expect to complete the rate study until mid- to late January, 2000. This time frame necessitates an agreed-upon extension of the time in which the City may review and approve the District's Plan. In order to allow adequate time for the District to complete its rate study, make revisions to its Plan, and provide necessary information to the City's consultants, staff recommend that the review period be extended by six (6) months, until July 1, 2000. While staff intend to complete the review and return to Council before then if at all possible, taking such an extension could help avoid the need for the type of piecemeal extensions that occurred during the City's review of the Water Plan, when information provided in a hurry to meet short deadlines was often incomplete or inaccurate, necessitating additional extensions and additional review. cc: David Moseley, City Manager Londi K. Lindell, Assistant City Manager Cary Roe, Public Works Director K:' COUNMEMO' sewerext MEETING DATE: December 21, 1999 ITEM# CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: Extension of Time for Consideration of Lakehaven Comprehensive Wastewater Plan CATEGORY: BUDGET IMPACT: CONSENT ORDINANCE X~BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: Memorandum dated December 15, 1999. SUMMARY/BACKGROUND: See attached memorandum dated December 15, 1999 for Bob C. Sterbank, Deputy City Attorney. CITY COUNCIL COMMITTEE RECOMMENDATION: None CITY MANAGER RECOMMENDATION: Approve extension until July 1, 2000 for review of Comprehensive Wastewater Plan. APPROVED FOR INCLUSION IN COUNC-;gL-i~,cx ^^ PACKET: (BELOW TO BE COMPLET[~; ~Y CI~Y CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # 1st Reading Enactment Reading ORDINANCE # RESOLUTION # k:\agenditem\lakehavenextend.pln CITY OF FEDERAL WAY MEMORANDUM December 17, 1999 TO: FROM: Mayor and City Council Members j~,//~/ j Stephen Clifton, AICP, Director of Community Development Serv Margaret H. Clark, AICP, Senior Planner ~. SUBJECT: Code Amendments Pertaining to Siting, Development Standards, and Review Processes for Personal Wireless Communication Facilities Please find attached a revised Cover Agenda for Agenda Bill # 242 under Item No. VII- Introduction Ordinance. The subject title included in the existing packet is incorrect as it references the 1998 Comprehensive Plan Amendments. The correct replacement language is Code Amendments pertaining to Siting, Development Standards, and Review processes for Personal Wireless Communication Facilities. We apologize for any inconvenience. l:WELECOM~122199CCmemo.wpd/December 17, 1999 CITY OF FEDERAL WAY City Council AGENDA ITEM SUIkIECT: CODE AMENDMENTS PERTAINING TO SITING, DEVELOPMENT STANDARDS, AND REVIEW PROCESSES FOR PERSONAL WIRELESS COMMUNICATION FACILITIES CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: November 30, 1999 Staff Report to the Land Use Transportation Committee (LUTC) with Exhibits A through D. . .................................. SUMMARY/BACKGROUND: Attached as ExhibitA are the proposed code amendments to Federal Way City Code (FWCC) Chapter 22 (Zoning) pertaining to siting and development standards and review processes for Personal Wireless Service Facilities (PWSFs). These amendments have been heard by the Planning Commission and reviewed by the LUTC. The Planning Commission conducted its first public hearing on the proposed amendments on July 2.1, 1999. The hearing was then continued to August 18, 1999 at which time, the Planning Commission, by a majority vote CITY COUNCIL COMMITTEE RECOMMENDATION: The LUTC discussed the Planning Commission's recommendation during public meetings on September 14, 1999 and three subsequent meetings ending on December 6, 1999. At the December 6, 1999 meeting, the LUTC made a motion to forward the amendments on to the full council for first reading on December 21, 1999 with the addition of the word ~atl shown as double underline and redline on page 23 of Exhibit A. ,,, .c..I...T..Y...~..A...G...E...R....~.C....o.~.,, .~.....A....T.`.~.~..N.....~..A..Pp~.r~.°...v.~..c..?..n..~..i.!~.c.~9~?..%R..?.~.c.9.~?...n.~a.t.!s9~: ................................. APPROVED FOR INCLUSION IN COUNCIL PACKET: (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLEDfDEFERRED/NO ACTION COUNCILBILL # ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY City Council AGENDA ITEM SUBJECT: 1998 COMPREHENSIVE PLAN AMENDMENTS CATEGORY: BUDGET IMPACT: X CONSENT ORDINANCE BUSINESS HEARING FYI RESOLUTION STAFF REPORT PROCLAMATION STUDY SESSION OTHER Amount Budgeted: $ Expenditure Amt: $ Contingency Reqd: $ ATTACHMENTS: November 30, 1999 Staff Report to the Land Use Transportation Committee (LUTC) with Exhibits A through D. SUMMARY/BACKGROUND: Attached as ExhibitA are the proposed code amendments to Federal Way City Code (FWCC) Chapter 22 (Zoning) pertaining to siting and development standards and review processes for Personal Wireless Service Facilities (PWSFs). These amendments have been heard by the Planning Commission and reviewed by the LUTC. The Planning Commission conducted its first public hearing on the proposed amendments on July 21, 1999. The hearing was then continued to August 18, 1999 at which time, the Planning Commission, by a majority vote of the entire membership, recommended that the City Council adopt the amendments (Exhibit B) as recommended. CITY COUNCIL COMMITTEE RECOMMENDATION: The LUTC discussed the Planning Commission's recommendation during public meetings on September 14, 1999 and three subsequent meetings ending on December 6, 1999. At the December 6, 1999 meeting, the LUTC made a motion to forward the amendments on to the full council for first reading on December 21, 1999 with the addition of the word small, shown as double underline and redline on page 23 of Exhibit A. CITY MANAGER RECOMMENDATION: Approve Council Committee Recommendation. ............................ .............................................................. (BELOW TO BE COMPLETED BY CITY CLERK'S OFFICE) COUNCIL ACTION: APPROVED DENIED TABLED/DEFERRED/NO ACTION COUNCIL BILL # ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: TO: FROM: SUBJECT: November 30, 1999 Land Use/Transportation Committee (LUTC) Stephen Clifton, AICP, Director of Community Development Services Margaret H. Clark, AICP, Senior Planner ~~/ Tim McHarg, Contract Senior Planner Proposed Personal Wireless Service Facility (PWSF) Zoning Code Text Amendments BACKGROUND The current City of Federal Way Personal Wireless Services Facilities (PWSF) review process, siting priorities, and development standards were established on September 19, 1997, through the adoption of Ordinance No. 97-300. The PWSF Ordinance was codified as Section 22-967 of the "Federal Way City Code" (FWCC). As part of its regular review of development regulations, staff has identified several aspects of the regulatory framework for PWSFs, which are in need of amendment. This is due largely to rapidly changing telecommunications technology and the resulting siting preferences of the telecommunications industry. Attached, as Exhibit A is a Draft Ordinance, which reflects revisions consistent with the policy direction provided to the staff by the LUTC at the November 15, 1999, meeting. The draft ordinance has been prepared in "line-in/line-out" format, with the Planning Commission's recommendations shown as si~ (proposed deletions) and single underline (proposed additions) and the LUTC's recommendations as dm:'b!e ~ (proposed deletions) and double underlines (proposed additions). The LUTC's revisions are located on pages 16, 19, 21, 22, 25, and 26; and these sections are noted as a double vertical line in the right margin. The amendments recommended to be added by the Planning Commission that were subsequently recommended for deletion by the LUTC are shown as a ~;~ .... ~-~: ..... ;.k a .~^..k~ ~t~;~ ..... , City of Federal Way LUTC Report PWSF Zoning Code Text Amendments November 30, 1999 Page I The LUTC's recommendations can be summarized as follows: Within residential zoning districts, Neighborhood Business (BN) zone, and Professional Office (PO) zone), a maximum of one (1) PWSF may be installed on an existing structure within appropriate public rights-of-way. Therefore, PWSFs located in public rights-of-way within these zones shall not be eligible for or required to provide collocation of additional PWSF equipment. Within residential zoning districts, Neighborhood Business (BN) zone, and Professional Office (PO) zone), equipment enclosures for PWSFs within appropriate public rights-of-way shall be located on adjacent properties outside the right-of-way. If located above ground, the equipment enclosures shall comply with all code requirements, including landscaping, building setbacks, and building codes. II. REASON FOR COUNCIL ACTION FWCC Chapter 22, Zoning, Article I~, Process VI Review, establishes a process and criteria for zoning code text amendments. Consistent with Process VI review, the City Council, based on a recommendation from the Planning Commission, must approve amendments to the zoning code text. III. PLANNING COMMISSION RECOMMENDATION As indicated below in Section IV-- Procedural Summary of this staff report, the Planning Commission conducted a public heating on the proposed text amendments to the zoning code regarding PWSFs on July 21, 1999. The public heating was continued to August 18, 1999. After conclusion of the continued public hearing, pursuant to FWCC Section 22- 535, the Planning Commission considered the proposed zoning code text amendments in light of the decisional criteria outlined below in Section V of this report. By a unanimous vote of the membership present (5-0), the Planning CommissiOn recommended that the City Council adopt the zoning code text amendments regarding PWSFs as outlined in Exhibit B. Attached as Exhibit C are the Planning Commission's minutes of July 21, 1999, and August 18, 1999. City of Federal Way LUTC Report PWSF Zoning Code Text Amendments November 30, 1999 Page 2 IV. PROCEDURAL SUMMARY July 21, 1999: Planning Commission Public Hearing August 18, 1999: Continuation of Planning Commission Public Hearing September 14, 1999: LUTC Meeting November 4, 1999: LUTC Meeting November 15, 1999: LUTC Field Trip to View Existing PWSFs LUTC Meeting December 6, 1999: LUTC Meeting For background purposes, materials previously provided for the September 14, 1999, LUTC meeting and the November 4 and 15, LUTC meetings have been placed in binders and are available for review in the City Council Conference Room. DECISIONAL CRITERIA FWCC Section 22-523 provides criteria for zoning code text amendments. The following section analyzes the compliance of the proposed PWSF zoning code text amendment with the criteria provided by FWCC Section 22-523. The city may amend the text of Chapter 22, Zoning, only if it finds that: (1) The proposed amendment is consistent with the applicable provisions of the comprehensive plan; The proposed zoning code text amendments regarding PWSFs are consistent with, and substantially implement, the following Comprehensive Plan goals and policies: LUG2 Develop an efficient and timely development review process based on a public/private partnership. L UP 4 Maximize efficiency of the development review process. City of Federal Way LUTC Report PWSF Zoning Code Text Amendments November 30, 1999 Page 3 LUP 6 Conduct regular reviews of development regulations to determine how to improve upon the development review process. PUG2 Work with private utility companies to allow them to provide service in a way that balances cost-effectiveness with environmentalprotection, aesthetic impact, public safety, and public health. PUG 4 Ensure that development regulations are consistent with public service obligations imposed upon private utilities by Federal and State Law. PUP3 The City should work to encourage, to the extent possible, the supply of all utilities to existing and new homes, offices, industrial, and commercial buildings. PUP4 The City encourages the joint use of trenches, conduits, or poles, so that utilities may coordinate expansion, maintenance, and upgrading facilities with the least amount o fright-of-way disruption. PUP 17 The City should require that site-specific utility facilities such as antennas and sub-stations are reasonably and appropriately sited and screened to mitigate adverse aesthetic impacts. PUP 19 The City should modify the zoning regulations to address the siting, screening, and design standards for wireless~cellular facilities, sub- stations, and antenna facilities in such a manner as to allow for reasonable and predictable review while minimizing potential land use and visual impacts on adjacent properties. (2) The proposed amendment bears a substantial relationship to public health, safety, or welfare; The proposed zoning code text amendments will result in improved environmental and land use review processes, siting prioritization, and development standards for PWSFs, which have a direct relationship to the public health, safety, and welfare. And City of Federal Way LUTC Report PWSF Zoning Code Text Amendments November 30, 1999 Page 4 (3) The proposed amendment is in the best interest of the residents of the city. The proposed FWCC text amendment will improve the compatibility of PWSFs with surrounding land uses and minimize land use conflicts between PWSFs and surrounding land uses through appropriate environmental and land use review processes, siting prioritization, and development standards. VI. COUNCIL ACTION Pursuant to FWCC Section 22-537(c), after consideration of the Planning Commission report, and at its discretion holding its own public hearing, the City Council shall by majority vote of its total membership take the following action: 1. Approve the proposed zoning code text amendment by ordinance; 2. Modify and approve the proposed zoning code text amendment by ordinance; 3, Disapprove the proposed zoning code text amendment by resolution; or Remand the proposed zoning code text amendment back to the Planning Commission for further proceedings. If this occurs, the City Council shall specify the time within which the Planning Commission shall report back to the City Council on the proposed zoning code text amendment. List of Exhibits Exhibit A Exhibit B Exhibit C Exhibit D Draft Ordinance Amending the Zoning Code Text Planning Commission Recommendation July 21 and August 18, 1999, Planning Commission Minutes Distribution List I:\TELECOM~ I I 15StaffReport.doc City of Federal Way LUTC Report PWSF Zoning Code Text Amendments November 30, 1999 Page 5 DRAFT CITY OF FEDERAL WAY ORDINANCE NO. 99 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AMENDING CHAPTER 22 (ZONING) OF THE FEDERAL WAY MUNICIPAL CODE PERTAINING TO SITING AND DEVELOPMENT STANDARDS AND REVIEW PROCESSES FOR PERSONAL WIRELESS COMMUNICATION FACILITIES WHEREAS, Section 704 of the Federal Telecommunications Act of 1996 preserves local zoning authority over decisions regarding the placement, construction, and modification of personal wireless service facilities, provided that regulation not discriminate among providers of functionally equivalent services nor prohibit, or have the effect of prohibiting, the provision of personal wireless services; and, WHEREAs, the Federal Telecommunications Act of 1996 and RCW 80.36.375 restricts and partially preempts a city's authority to regulate personal wireless service facilities; and, WHEREAS, personal wireless services facilities comprise a rapidly growing segment of the utilities and communications sector and have merit and value for the community and region as a whole; and, WHEREAS, personal wireless services facilities are supportive of the public health, safety, and welfare in that they provide useful portable communication services for personal convenience, business, and emergency purposes; and, WHEREAS, the City of Federal Way is concerned that future decisions regulating the siting and development of personal wireless services facilities, without appropriate standards and review processes, may adversely effect the public health, safety, and welfare of residents of the City of Federal Way; and, WHEREAS, the City of Federal Way reviewed potential impacts from the Personal Wireless Services Facilities Code Amendment Ordinance in compliance with the State Environmental Policy Act; and, WHEREAS, the Personal Wireless Services Facilities Code Amendment Ordinance will implement and is consistent with the Federal Way Comprehensive Plan; and, EXHIBIT__ PAG E__L OF DRAFT ORDINANCE NO. 99- , PAGE I November 30, 1999 DRAFT WHEREAS, the Planning Commission conducted a duly noticed public heating on the dra~ Personal Wireless Services Facilities Code Amendment Ordinance and forwarded a recommendation of approval to the City Council; and, WHEREAS, the City Council finds that the Personal Wireless Services Facilities Code Amendment Ordinance is consistent with the intent and purpose of the Federal Telecommunications Act of 1996 and RCW 80.36.375. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, IN REGULAR SESSION, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. The purpose of this Ordinance is to amend the Federal Way City Code to satisfy the following basic needs: mo To provide appropriate standards and review processes for decisions regulating the siting and development of personal wireless services facilities; and, To be consistent with and implement the Federal Communications Act of 1996 and RCW 80.36.375. Section 2. Section 22-1 of the Federal Way City Code is hereby amended to incorporate the following definitions in alphabetical order: Abandoned personal wireless service.facility shall mean a PWSF that meets the following: (1) Operation has voluntarily ceased for a period of 60 or more consecutive days; or, (2) The effective radiated power of an antenna has been reduced by 75 percent for a period of 60 or more consecutive days; or, (3) The antenna has been relocated at a point less than 80 percent of the height of the support structure; or, (4) The number of transmissions from an antenna has been reduced by 75 percent for a period of 60 or more consecutive days. Cell-on-Wheels (C-O-W) shall mean a mobile temporary personal wireless service facility. Temporal. Personal Wireless Service Facility shall mean a personal wireless service facility which is to be placed in use for a limited period of time, is not deployed in a permanent manner, and does not have a permanent foundation. EXHiBiT A PAGE OF' DRAFT ORDINANCE NO. 99- November 30, 1999 , PAGE 2 PAGE_ 3, OF3~ 0 Z PAG E_~__O F3~ PAGE 5' OF..¢'o T,A PAGE._~._~ OF-~o .< n~ 0 pAG E__7__ O F 3o d PAG E.j_OF$,~ PAG E__,~__O F~o n 0 E×H~BIT /~~ PAG lo OF-~ , n ,,,, 0 PAGE t/ OF$o Z Z EXH~B~[ A PAGE /~ OF_3o Z DRAFT Section 14. Section 22-966 of the Federal Way City Code is hereby amended to read as follows: Sec. 22-966. Personal wireless service facilities (PWSF). (a) Purpose. This section addresses the issues of location and appearance associated with personal wireless service facilities. It provides adequate siting opportunities through a wide range of locations and options which minimize safety hazards and visual impacts sometimes associated with wireless communications technology. The siting of facilities on existing buildings or structures, collocation of several providers' facilities on a single support structure, and visual mitigation measures are required, unless otherwise allowed by the city, to maintain neighborhood appearance and reduce visual clutter in the city. (b) Definitions. Any words, terms or phrases used in this section which are not otherwise defined shall have the meanings set forth in section 22-1 of this Code. (c) Exemptions. The following antennas and facilities are exempt from the provisions of this section and shall be permitted in all zones consistent with applicable development standards as outlined in the Use Zone Charts, Article XI, District Regulations: (1) Wireless communication facilities used by federal, state, or local public agencies for temporary emergency communications in the event of a disaster, emergency preparedness, and public health or safety purposes. (2) Industrial processing equipment and scientific or medical equipment using frequencies regulated by the FCC; provided such equipment complies with all applicable provisions of Section 22-960, Rooftop Appurtenances, and Chapter 22, Article XIII, Division 5, Height. (3) Citizen band radio antennas or antennas operated by federally licensed amateur ("ham") radio operators; provided such antennas comply with all applicable provisions of Section 22-960, Rooftop Appurtenances, and Chapter 22, Article XIII, Division 5, Height. (4) Satellite dish antennas less than two meters in diameter, including direct-to-home satellite services, when used as a secondary use of the property; provided such antennas comply with all applicable provisions of Section 22~960, Rooftop Appurtenances, and Chapter 22, Article XIII, Division 5, Height. (5) DRAFT ORDINANCE NO. 99- Automated meter reading (AMR) facilities for the purpose of collecting utility meter data for use in the sale of utility services, except for whip or other antennas greater than two (2) feet in' length; provided the AMR facilities are within the scope of activities permitted under a valid franchise agreement between the utility service provider and the city. A .,PAGE 14 PAG Z?~_~.:"[~ddN°~er30' 1999 DRAFT (6) Routine maintenance or repair of a wireless communication facility and related equipment excluding structural work or changes in height, dimensions, or visual impacts of the antenna, tower, or buildings; provided that compliance with the standards of this chapter are maintained. (cO(d) Prioritized locations. The following sites shall be the required order of locations for proposed PWSFs, including antenna and equipment shelters, ,,.,~,.oo_...~ ~k,._.~ ,4.,,~..; ,~,~,.,~.~.~ .^.v ...w..:"'~'am' *"'~---~ r-'"';"'"~""°*~""-v- ---~-~--- In · ....... ~-t~w-..~,*~"" proposing a PWSF in a particular location, the applicant shall analyze the feasibility of locating the proposed PWSF in each of the higher priority locations and document, to the city's satisfaction, why a locationing the PWSF in each higher priority location and/or zone is not being proposed. In order of preference, ~.o~,~,4.._ov~ ~.. ............. ~. ~oo~...~...' ~.^r-~-~----:c"~°;k;~;*" the sites prioritized locations for PWSFs are as follows: (1) Structures located in the BPA trail: A PWSF may be located Oon any existing support structure currently located in the easement upon which are located U.S. Department of Energy/Bonneville Power Administration ("BPA") Power Lines regardless of underlying zoning. (2) Existing broadcast, relay and transmission towers: A PWSF may be located 6)on any existing site or tower where a legal wireless telecommunication facility is currently located regardless of underlying zoning. If an existing site or tower is located within a one mile radius of a proposed PWSF location, the applicant shall document why collocation on the existing site or tower is not being proposed, regardless of whether the existing site or tower is located within the .jurisdiction of the city. (3) Publicly-used structures: If the city consents to such location, aRac~ed tea PWSF may be located on existing public facilities within all zoning districts, such as water towers, utility structures, fire stations, bridges, and other public buildings vdtb.,~n al! zen'~ng districts, provided the public facilities are not located within public rights-of-way. (4) Appropriate. Bbusiness, commercial,_ and city center zoned sites: structv, rez or ~i~ ...... a c,, ........ k o..a a .... ~ ..... , ....... ;.,~ o,~a ,,cc, ....... A PWSF may be located on private buildings or structures within appropriate business, commercial, and city center zoning districts. The preferred order of zoning districts for this category of sites is as follows: BP--Business Park CP- 1--Corporate Park OP through OP-4--Office Park PAG F_. t -_'5 0 DRAFT ORDINANCE NO. 99- , PAGE 15 November 30, 1999 DRAFT CC-C--City Center Core CC-F--City Center Frame BC--Community Business (5) Appropriate public rights-of-way: For the purposes of this section, appropriate public rights-of-way shall be defined as including those public rights-of-way with functional street classifications of principal arterial, minor arterial, and principal collector. A PWSF may be located on existing structures in appropriate public rights-of-way. Structures proposed for location of PWSFs shall be separated by at least 330 linear feet. Within any residential zone, Neighborhood Business (BN) zone, or Professional Office (PO) zone, :gthere shall be no more than one PWSF located on an existing structure. Existing structures in appropriate public rights- of-way shall not be eligible for submittal of a use process application for placement of a PWSF for one year from the date of the completion of construction or alteration. Location of a PWSF on an existing structure in an appropriate public right-of-way shall require a right-of-way permit in addition to the required use process approval. The preferred order of functional street classifications for this category of sites is as follows: Principal Arterial Minor Arterial Principal Collector If the PWSF is proposed to be located in an appropriate public right-of-way and the surrounding uses or zoning are not the same, that portion of the right-of-way with the most intensive use and/or zoning shall be the preferred location. If the PWSF is proposed to be located in an appropriate public right-of-way and surrounding uses or zoning are the same, the preferred location shall be that portion of the right-of-way with the least adverse visual impacts. DRAFT ORDINANCE NO. 99- If the applicant demonstrates to the city's satisfaction that it is not technically possible to site in a prioritized location, the city reserves the right to approve altemative site locations ifa denial would be in violation of the 1996 Telecommunications Act, as determined by the city. , PAG E_ t6' "F_3DNove.mber 30, 1999 DRAFT Sec. 22-967. Development Standards ~,4,_ ) _~n .... .~.v~....~...; ..... , ~.-..--.o'""'~"~'~°-v. The following development standards shall be followed in the design, siting, and construction of a personal wireless service facility. DXI7~I~o ol,,.al I use r,-,;.-,; properties. (-2-)(a) Building or structure mounted PWSFs not located in the public right o. f way. PWSFs ma)' be mounted on novzesidentia! existing buildings and structures not located in a public right-of-way shall conform to the following development standards under the fv!!awing (1) The PWSF shall consist only of the following types of facilities: ao The PWSF .... ;ofo cfa A microcell or a minor facility; or, bo A PWSF that exceeds the minor facility thresholds for number of antennas, dimensions, and/or area, but creates no more adverse impacts than a minor facility, as determined by the director of community development services, subject to meeting all of the following standards: The facility shall not create substantially more adverse visual impact than a minor facility; and, ii. The equipment cabinet for the PWSF shall meet all requirements of FWCC 22-967(e); and, iii. The maximum size of the PWSF panels and number of antennas shall be determined by the director of community development services, based on the specific project location, surrounding environment, and potential visual impacts; and, iv. The PWSF shall comply with all other applicable standards of the FWCC. The combined antennas and supporting structure shall not may extend ..more than up to, but not exceed, 15 feet above the existing or proposed roof or other structure regardless of whether the existing structure is in conformance with the DRAFT ORDINANCE NO. 99- ._, PAGE 17 ur--y~ ~ .... r .L__ November30, 1999 PAGE OF 34> DRAFT existing maximum height of the underlyinn zone as outlined in the Use Zone Charts, Article XI, District Regulations. Antennas may be mounted to rooftop appurtenances provided they do not extend beyond 15 feet above the roof proper. ~.(3) The antennas are mounted on the building or structure such that they are located and designed to minimize visual and aesthetic impacts to surrounding land uses and structures and shall, to the greatest extent practical, blend into the existing environment pursuant to Section 967(d). Panel and parabolic antennas shall be com?!ete!y screened from residential views and public rights-of-way unless meeting the provision of section 22-960(b)(2). (b) PWSFs located on structures within appropriate public rights-of-way. These facilities shall conform to the following development standards: (1) The PWSF shall consist only of the following types of facilities: ao .q/~..e PWSF consists ofa A microcell or a minor facility; or, A PWSF that exceeds the minor facility thresholds for number of antennas, dimensions, and/or area, but creates no more adverse impacts than a minor facility, as determined by the director of community development services, subject to meeting all of the following standards: The facility shall not create substantially more adverse visual impact than a minor facility; and, ii. The equipment cabinet for the PWSF shall meet all requirements of FWCC 22-967(e) and FWCC 22-967(0; and, 111. The maximum size of the PWSF panels and number of antennas shall be determined by the director of community development services, based on the specific project location, surrounding environment, and potential visual impacts; and, iv. The PWSF shall comply with all other applicable standards of the FWCC. (2) DRAFT ORDINANCE NO. 99- The combined antennas may extend up to, but not exceed, 15 feet above the existing structure. This distance may be increased by the minimum necessary additional height to meet the safety clearances required by the operator of the existing structure. The antenna extension may be permitted regardless of whether the existing structure is in conformance with the maximum height of the underlying zone as outlined in the Use Zone Charts, Article XI, District Regulations. ,PAGEI~ PAGE. t 8' OF_.~v~mb~r3°''g99 DRAFT (3) The antennas shall be mounted on the structure such that they are located and designed to minimize adverse visual and aesthetic impacts to surrounding land uses and structures and shall, to the greatest extent practical, blend into the existing environment pursuant to Section 967(d). (4) Structures in appropriate public fights-of-way proposed for location of PWSFs shall be separated by at least 330 linear feet. (5) Required setbacks shall not pertain to PWSFs within public rights of ways, o~r equipment enclosures located underground on properties adjacent to the public _right of way. Within residential zones, equipment enclosures located above ground on properties adiacent to the public fight of way shall meet all applicable setback requirements for residential development of the underl¥in~ zone. For developed sites in non-residential zones, the setback requirements for the equipment enclosure shall be those of the principal use of the subject property_. For undeveloped sites in non-residential zones, the setback requirements for the equipment enclosure shall be 20 feet for front, side, and rear yards. (-3-)(c) New free standing PWSF: New,free-standing PWSFs. These structures shall conform to the following site development standards: Placement of a freestanding PWSF shall be denied if placement of the antennas on an existing structure can meet the applicant's technical and network location requirements. 1~.(2) Monopoles shall be the only free-standing structures allowed in the city; except that a lattice tower may be used to accommodate the collocation of four or more providers as part of a joint permit application. In no case shall a free-standing PWSFs be located closer than 500 feet to an existing free-standing PWSF whether it is owned or utilized by the applicant or another provider. c~4) A free-standing PWSF, including the support structure and associated electronic equipment, shall comply with all required setbacks of the zoning district in which it is located. For developed sites, the setback requirements shall be those of the principal use of the subiect property. For undeveloped sites, the setback requirements for new free-standing PWSFs shall be 20 feet for front, side, and rear yards. Free-standing PWSFs shall be designed and placed on the site in a manner that takes maximum advantage of existing trees, mature vegetation, and structures so as to: DRAFT ORDINANCE NO. 99- , PAGE 19 PAGE t ? .OF _ vember30, 1999 DRAFT Use existing site features to screen as much of the total PWSF as possible from prevalent views; and/or Use existing site features as a background so that the total PWSF blends into the background with increased s;.ght distances. In reviewing the proposed placement of a facility on the site and any associated landscaping the city may condition the application to supplement existing trees and mature vegetation to more effectively screen the facility. g(7) Support structures, antennas, and any associated hardware shall be painted a nonreflective color or color scheme appropriate to the background against which the PWSF would be viewed from a majority of points within its viewshed. The gproposed color or color scheme to shall be approved by the hearing examiner or community development director as ...... .4,,,,. to t~e ....... (d) Screening standards for all PWSFs. PWSFs shall be screened or camouflaged through employing the best available technology and design, as determined by the city. This may be accomplished by use of compatible materials, location, landscaping, color, stealth techniques such as, but not limited to, artificial trees and hollow flag poles, and/or other methods or techniques to achieve minimum visibility of the facility as viewed from public streets or residential properties. In addition, the provisions for landscaping as outlined in the Use Zone Charts, Article XI, District Regulations, shall apply. Standards for electronics equipment enclosures. a~(1) l~,~,,~ .... , ,.,,.I ........ h.~n ~..~ ..i....,~,4 ,,.,4 ........ ,4 ;tp,-.,,.,~,..,~,lo The following shall be the required order of locations for proposed electronic equipment enclosures for all PWSFs. In proposing an equipment enclosure in a particular location, the applicant shall analyze the feasibility of locating the proposed equipment enclosure in each of the higher priority locations and document, to the city's Satisfaction, why a locating the equipment enclosure in each higher priority location is not being proposed. In requesting a lower priority location for the equipment enclosure, the burden of demonstrating impracticability shall be on the applicant. In order of preference, the prioritized locations for equipment enclosures are as follows: (a) Equipment enclosures shall be placed underground. (b) Equipment enclostires shall be placed in an existing completely enclosed building. DRAFT ORDINANCE NO. 99- , PAGE 20 DRAFT (3) (c) Equipment enclosures shall be placed above ground in an enclosed cabinet that shall not exceed six feet in height and occupy more than 48 square feet of floor area, including areas for maintenance or future expansion. (d) Equipment enclosures shall be placed above ground in a new completely enclosed building. If above ground, screening .,r rm~e~: equipment enclosures shall be ..... ;a,.,~ screened with one or a combination of the following materials methods, which screening shall be acceptable to the city: fencing, walls, landscaping, structures, buildings or topography which will block the view of the equipment enclosure as much as to the greatest extent possible from any street and/or adjacent properties. as determined by the director of community development services. Screening may be located anywhere between the enclosure and the above mentioned viewpoints. Landscaping for the purposes of screening shall be maintained in a healthy condition, as determined by the city. located c'.:tzide cf required :etbx_k ~e~. E uqg_ipment enclosures located underground shall be exempt from setback requirements of the underlying zone. In residential zones, equipment enclosures located above ground shall meet all applicable setback requirements for residential development of the underlying zone. For developed sites in non-residential zones, the setback requirements for the equipment enclosure shall be those of the principal use of the subject property. For undeveloped sites in non-residential zones, the setback requirements for the. equipment enclosure shall be 20 feet for front, side, and rear yards. (4) If the equipment cabinet is located within a new completely enclosed building, the building shall conform to all applicable development standards and design guidelines for the underlying zone. The completely enclosed building shall be architecturally designed and shall be compatible with existing buildings on the site. The completely enclosed building shall be screened to the greatest extent possible from any street and/or adjacent properties by landscaping and/or topography. (0 Additional standards for equipment enclosures for PWSFs located on structures within appropriate public rights-of-way: (1) The following shall be the required order of locations for proposed electronic equipment enclosures for PWSF located within public rights-of-way. In proposing an equipment enclosure in a particular location, the applicant shall analyze the feasibility of locating the proposed equipment enclosures in each of the higher priority locations and document, to the city's satisfaction, why a locating the equipment enclosure in each higher priority location is not being proposed. In ~;~embe~ 30, 1999 DRAFT ORDINANCE NO. 99- ,PAGE2I PAGL a! DRAFT requesting a lower priority location for the equipment enclosure, the burden of demonstrating impracticability shall be on the applicant. In order of preference, the prioritized locations for equipment enclosures are as follows: (a) Electronic equipment enclosures shall not allowed within the right-of-way in residential zones, Neighborhood Business (BN) zones or Professional Office (PO) zones. Equipment enclosures shall be placed underground on an adjacent. property outside of the public right-of-way. Equipment enclosures shall be placed above ground on an adjacent property outside of the public fight-of-way in an existing completely enclosed building. (-o) (d) Equipment enclosures shall be placed above ground on an adjacent property outside of the public fight-of-way in an enclosed cabinet that shall not exceed six feet in height and occupy more than 48 square feet of floor area, including areas for maintenance or future expansion. Equipment enclosures shall be placed above ground on an adjacent property outside of the public right-of-way in a new completely enclosed building. Equipment enclosures shall be placed underground within the public right- of-way. Equipment enclosures shall be placed above ground within the public right-of-way in an enclosed cabinet that shall not exceed six feet in height and occupy more than 24 square feet of floor area, including areas for maintenance or future expansion. (2) Equipment enclosures located underground on properties adjacent to the public right of way shall be exempt from setback requirements of the underlying zone. (3) In residential zones, equipment enclosures located above ground on properties adjacent to the public right of way shall meet all applicable setback requirements for residential development of the underlying zone. For developed sites in non- residential zones, the setback requirements for the equipment enclosure shall be those of the principal use of the subject property. For undeveloped sites in non- residential zones, the setback requirements for the equipment enclosure shall be 20 feet for front, side, and 'rear yards. DRAFT ORDINANCE NO. 99- , PAGE 22 PAGE .2 z ,3o November 30, 1999 DRAFT (4) Equipment enclosures shall be designed, located, and screened to minimize adverse visual impacts from the public right-of-way and adiacent properties. (5) Equipment enclosures shall be designed, located, and screened to minimize adverse visual and functional impacts on the pedestrian environment. (6) Equipment enclosures and screening shall not adversely impact vehicular sight distance. Security Fencing. ~(1) No fence shall exceed six feet in height as stipulated in section 22-1133(5). b:(2) Security fencing shall be effectively screened from view through the use of' appropriate landscaping materials. ~ Chain-link fences shall be painted or coated with a nonreflective color. (-6-)(h) Cumulative Effects. The city shall consider the cumulative visual effects of PWSFs mounted on existing structures and/or located on a given permitted site in determining whether the additional permits can may be granted so as to not adversely effect the visual character of the city. (-7-)(i) Si£na£e. No wireless equipment shall be used for the purpose of'mounting signs or message displays ~fany kind, except for ~ signs used for identification and name of provider. 69(J) (1) (2) Use zone charts, height and permit process. The final approval authority for applications made under this section shall be defined by the appropriate permit process as outlined in the Use Zone Charts, Article XI, District Regulations. Allowed heights shall be established relative to appropriate process as outlined in the Use Zone Charts, Article XI, District Regulations. DRAFT ORDINANCE NO. 99- , PAGE 23 PAGE OF~0,,999 DRAFT Sec. 22-968. Nonconformance. Permit applications made under this section to locate a PWSF on property on which a nonconformance is located shall be exempt from the requirements of Chapter 22, Article IV, Nonconformance, to bring the property into conformance as follows: (a) To provide the public improvements required by Chapter 22, Article XVI, Improvements, as stipulated in Section 22-336. (b) To bring the property into conformance with the development regulations prescribed in Chapter 21 relating to water quality as stipulated in Section 22-337(a)(7). All other requirements of Section 22-337 to bring the property into conformance with the development regulations prescribed in Chapter 21 relating to water quality shall apply. Section 22-969. Temporary Personal Wireless Service Facilities. As determined by the director of community development services, a temporary personal wireless service facility, or cell-on- wheels, may be deployed and operated as follows: (a) For a period of 90 days during the construction of a free-standing PWSF which has been approved through the appropriate permit process; provided that the temporary personal wireless service facility or cell-on-wheels creates no more adverse impacts than the PWSF which was approved through the appropriate permit process. Only one temporary personal wireless service facility or cell-on- wheels shall be permitted for a single site. (b) For a period of 30 days during an emergency declared by the city, state, or federal government that has caused a free-standing PWSF which has been approved through the appropriate permit process to become involuntarily non-operational; provided that the temporary personal wireless service facility or cell-on-wheels creates no more adverse impacts than the PWSF which was approved through the appropriate permit process. (c) Prior to installation of the temporary PWSF, the applicant shall provide the city with a cash bond in an amount to be determined by the director of community development services in order to guarantee performance of future removal and restoration of the site. Section 22-970. Application Requirements. ~.~ A.~.~...,; ....... ; ..... '" (a) Except for Temporary Personal Wireless Facilities, lagermit applications made under this section shall include the following minimum information in addition to that required for the underlying permit review process: (1) A diagram or map showing the primary viewshed of the proposed facility. DRAFT ORDINANCE NO. 99- 'PAGE24iPAGE oq ) - Jl:l ° vember30,1999 ' 1:' DRAFT (2) Photosimulations of the proposed facility from effected properties and public rights-of-way at varying distances. (3) Architectural elevations of proposed facility and site. (4) A coverage chart of the proposed PWSF at the requested height and an explanation of the need for that facility at that height and in that location. The explanation shall include an analysis of a!temafive o~,,.o ond ,,,h,, ,h ..... ,,o,,~a ~..vo;"~; .... r-v-~--~-r""""a v .... .'~. ether pess'~b!e .w_..v_~~^""*;""o the feasibility of locating the proposed PWSF in each of the higher priority locations as identified in Section 22-966(d), and documentation of why locating the PWSF in each higher priority location and/or zone is not being proposed. (5) An inventory of other PWSF sites operated by the applicant or other providers that ~e either in the zi~' zr within aone mile zf ~.ts bzrders radius of the proposed PWSF location, including specific information about location, height, and design of each facility. (6) A site/landscaping plan showing the specific placement of the PWSF on the site; showing the location of existing structures, trees, and other significant site features; and indicating type and locations of plant materials used to screen PWSF components. (7) If the PWSF electronic equipment cabinet is proposed to be located above ground, regardless of the proposed location, whether on private or public property or within public right of way, an explanation of why it is impracticable to locate the cabinet undergrouund. (8) If the equipment cabinet is proposed to be located in a public right-of-way, an explanation of why it is impracticable to locate the equipment cabinet on adjacent property outside the public right-of-way. If the PWSF is located on an existing structure in an appropriate public right of way, a copy of all applicable easements for placement and maintenance of the equipment enclosure on an adjacent property outside of the publ!c right of way. ¢T)(9) Documentation of efforts to collocate on existing facilities. (-g)(10) Other information as deemed necessary by the community development director. (b) Permit applications for Temporary Personal Wireless Service Facilities shall include the following minimum information: (1) Documentation of previously permitted facility. DRAFT ORDINANCE NO. 99- EXH E T ,PAGE ~..~, ~ November 30, 1999 DR FT (2) Site plan showing proposed location of temporary facility in relationship to the location of the previously permitted facility and property boundaries, including dimensions from the property lines and height of proposed facility. (3) Photographs of the proposed facility. Section 22-971. Collocation. (4-)(a) A permittee shall cooperate with other PWSF providers in collocating additional antenna on support structures and/or on existing buildings and sites provided said proposed collocatees have received a permit for such use at said site from the city. A permittee shall allow other providers to collocate and share the permitted site, provided such shared use does not give rise to a substantial technical level impairment of the permitted use (as opposed to a competitive conflict or financial burden). In the event a dispute arises as to whether a permittee has exercised good faith in accommodating a new applicant, the city may require a third party technical study at the expense of the permittee. Failure to comply with this provision may result in a revocation of the permit. (-2-)(b) A signed statement indicating that the applicant agrees to allow for the potential collocation of additional PWSF equipment by other providers on the applicant's structure or within the same site location shall be submitted by the applicant as part of the permit application. If an applicant contends that future collocation is not possible on their site, they must submit a technical study documenting why. (c) Collocation requirements shall not apply to PWSFs located on existing structures in appropriate public fights-of-way within residential zones, Neighborhood Business (BN) zones and Professional Office (PO) zones Section 22-972. EMF Standards and Interference. r~ ~r~ The applicant shall comply with federal standards for EMF emissions. Within six months after the issuance of its operational permit, the applicant shall submit a project implementation report which provides cumulative field measurements of radio frequency (EMF) power densities of all antennas installed at the subject site. The report shall quantify the EMF emissions, and compare the results with established federal standards, and provide a statement that the EMF emissions are within established federal standards. Said report shall be subject to review and approval of the city for consistency with the project proposal report and the adopted federal standards. If on review, the city finds that the PWSF does not meet federal standards, the E×H iB T.___g ........ AGE':~': 3'0 November 30, 1999 DRAFT ORDINANCE NO. 99- , PAGE ~.~, ',,.~ ,.~- DRAFT city may revoke or modify the permit. The applicant shall be given a reasonable time based on the nature of the problem to comply with the federal standards. If the permit is revoked, then the facility shall be removed. (-2-)(b) The applicant shall ensure that the PWSF will not cause localized interference with the reception of area television or radio broadcasts or the functioning of other electronic devices. If on review of a registered complaint the city finds that the PWSF interferes with such reception, the city may revoke or modify the permit. The applicant shall be given a reasonable time based on the nature of the problem to correct the interference. If the permit is revoked, then the facility shall be removed. Section 22-973. Removal of Facility. O) Faci!i.?; remv;'a!. ~ Abandonment and removal. The owner or operator of a PWSF shall provide the city with a copy of the notice of intent to cease operations required by the FCC at the time it is submitted to the FCC. Additionally, :[:the owner or operator of a PWSF shall notify the city in writing upen o_f the discenfin'-'-ed ','se abandonment of a particular facility within 30 days of the date the PWSF is abandoned. The abandoned PWSF shall be removed by the facility owner within 90 days of the date the o;*'~' ..... is d;.scentin'-'-ed PWSF is abandoned, it ceases te be ..... ';^-'"~ the permit is revoked, or if the facility falls into disrepair and is not maintained, as determined by the city. Disrepair includes structural features, paint, landscaping, or general lack of maintenance which could result in adverse safety or visual impacts. If there are two or more users of a single tower, then the city's right to remove the tower shall not become effective until all users abandon the tower. (b) Partial abandonment and removal. If the abandoned antennas on any PWSF are removed or relocated to a point where the top 20 percent or more of the height of the supporting structure is no longer in use, the PWSF shall be considered partially abandoned. The owner or operator of any partially abandoned PSWF shall notify the city in writing of the partial abandonment of a particular facility within 30 days of the date the PWSF is partially abandoned. The owner of the PWSF shall have 120 days from the date of partial abandonment to collocate another service on the PWSF. If another service provider is not added to the'PWSF within the allowed 120 day collocation period, the owner shall in 210 days of partial abandonment, dismantle and remove that portion of the supporting structure which exceeds the point at which the highest operational antenna is mounted. (-2-)(c) Removal and lien. If the provider fails to remove the abandoned or partially abandoned facility upon 90 210 days of its diseentinued use abandonment or partial abandonment, the responsibility for removal falls upon the property owner on which the abandoned or partially abandoned facility' ho~ ~"-'-' is located, tr,~, ...... ,~, ....... ro~lo ,~ DRAFT ORDINANCE NO. 99- ., PAGE 27 E~~D[!~ ~_______ __ ..'--...__,,~ ..... 3q'6V~mber 30, 1999 PAG 30 DRAFT ~;.. ~ .... .~ ~ .... ~ ~mo~ ~e ci~ may enforce this p~agraph using the procedmes ~ set fo~ in FWCC, ~icle 3, Section 1-14. Section 22-974. Permit Limitations. (-k-) Permit limitations. ¢l-)(a) A permit for a PWSF shall expire ten years after the effective date of the permit approval, unless earlier revoked by the city. A permittee wishing to continue the use of a specific PWSF at the end of the ten-year period must apply for an application to continue that use at least six months prior to its expiration. The renewal application shall comply with all applicable laws and regulations dictating new permit issuance. In ruling on said renewal the city shall consider all then existing regulations effecting the application that are appropriate to the technology and use. ¢g)(b) Five years after the~-.~'4°*'~ ,.r ,~.,.v...v city's -er- ........ v. ~.~ effective date of the land use process approval of a PWSF, the permittee or assignee shall submit a written statement summarizing its current use and plans, if any, for that facility/site for the next five years to the best of their knowledge. (-3-)(c) Consistent with the provisions of Section 22-408, A_an approved permit for a PWSF shall be valid for one year from the date cf the ziD"s ........ I effective date of the use process approval, with opportunity for a one-year extension. If net ,-'-ged a building permit. application is not received within one year of the effective date of the use process approval, or within the extension period, the pe..':m~.t use process approval shall become null and void. Section 22-975. Revocation of Permit. (-1-) Re:'acatiex efper~it. A permit issued under this article may be revoked, suspended or denied for any one or more of the following reasons: (-1-)(a) Failure to comply with any federal, state or local laws or regulations; (-2-)(b) Failure to comply with any of the terms and conditions imposed by the city on the issuance of a permit; material facts; When the permit was procured by fraud, false representation, or omission of DRAFT ORDINANCE NO. 99- ., PAGE 28 November 30, 1999 DRAFT (4-)(d) Failure to cooperate with other PWSF providers in collocation efforts as required by this article; (5)(e) Failure to comply with federal standards for EMF emissions; and (6)(f) Failure to remedy localized interference with the reception of area television or radio broadcasts or the functioning of other electronic devices. (7)r_(g) Pursuant to Section 22-7(c), the city, as the applicant, shall use the same process to determine if the permit shall be revoked as it used to grant the permit. Section 15. Section 22-1473 of the Federal Way City Code is hereby amended to read as follows: See. 22-1473. When public improvements must be installed. (a) The applicant shall provide the improvements required by this article if the applicant engages in any activity which requires a development permit, except for the following: (1) The applicant need not comply with the provisions of this article if the proposed improvements in any 12-month period do not exceed 25 percent of the assessed or appraised value (based on an MAI appraisal provided by the applicant) of all structures on the subject property, whichever is greater. (2) The applicant need not comply with the provisions of this article if, within the immediately preceding four years, public improvements were installed as part of any subdivision or discretionary land use approval under this or any prior zoning code. (3) The applicant need not comply with the provisions of this article if the proposal is to locate a Personal Wireless Services Facility (PWSF) on the subject property. (b) Right-of-way adjacent to and within subdivision and short subdivisions must be dedicated and improved consistent with the requirements of this article, unless different requirements are imposed by the city as part of the subdivision or short subdivision approval. Section 16. Severability. The provisions of this ordinance are declared separate and severable. The invalidity or unconstitutionality of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance or the invalidity of the application thereof to any person or circumstance, shall not effect the validity of the remainder of the ordinance, or the validity of its application to other persons or circumstarices. DRAFT ORDINANCE NO. 99- , PAGE 29 November 30, 1999 DRAFT Section 17. Effective Date. This ordinance shall take effect and be in force five (5) days at~er its passage, approval, and publication, as provided by law. PASSED by the City Council of the City of Federal Way at a regular meeting of the City Council on the __ day of ,1999. APPROVED: RON GINTZ, MAYOR ATTEST: N. CRISTINE GREEN, CITY CLERK APPROVED AS TO FORM: LONDI K. LINDELL, CITY ATTORNEY EXHIBIT___& PAG F FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: DRAFT ORDINANCE NO. 99- ., PAGE 30 November 30, 1999 DRAFT CITY OF FEDERAL WAY ORDINANCE NO. 99 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, AMENDING CHAPTER 22 (ZONING) OF THE FEDERAL WAY MUNICIPAL CODE PERTAINING TO SITING AND DEVELOPMENT STANDARDS AND REVIEW PROCESSES FOR PERSONAL WIRELESS COMMUNICATION FACILITIES WHEREAS, Section 704 of the Federal Telecommunications Act of 1996 preserves local zon!ng authority over decisions regarding the placement, construction, and modification of personal wireless service facilities, provided that regulation not discriminate among providers of functionally equivalent services nor prohibit, or have the effect of prohibiting, the provision of personal wireless services; and, WHEREAS, the Federal Telecommunications Act of 1996 and RCW 80.36.375 restricts and partially preempts a city's authority to regulate personal wireless service facilities; and, WHEREAS, personal wireless services facilities comprise a rapidly growing segment of the utilities and communications sector and have merit and value for the community and region as a whole; and, WHEREAS, personal wireless services facilities are supportive of the public health, safety, and welfare in that they provide useful portable communication services for personal convenience, business, and emergency purposes; and, WHEREAS, the City of Federal Way is concerned that future decisions regulating the siting and development of personal wireless services facilities, without appropriate standards and review processes, may adversely effect the public health, safety, and welfare of residents of the City of Federal Way; and, WHEREAS, the City of Federal Way reviewed potential impacts from the Personal Wireless Services Facilities Code Amendment Ordinance in compliance with the State Environmental Policy Act; and, WHEREAS, the Personal Wireless Services Facilities Code Amendment Ordinance will implement and is consistent with the Federal Way Comprehensive Plan; and, WHEREAS, the Planning Commission conducted a duly noticed public hearing on the draft Personal Wireless Services Facilities Code Amendment Ordinance and forwarded a recommendation of approval to the City Council; and, DRAFT ORDINANCE NO. 99- , PAGE I EXH ~ ~" ~"7 ~ Aug'ast 18, 1999 PAGE t DRAFT WHEREAS, the City Council finds that the Personal Wireless Services Facilities Code Amendment Ordinance is consistent with the intent and purpose of the Federal Telecommunications Act of 1.996 and RCW 80.36.375. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, IN REGULAR SESSION, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. The purpose of this Ordinance is to amend the Federal Way City Code to satisfy the following basic needs: Ao To provide appropriate standards and review processes for decisions regulating the siting and development of personal wireless services facilities; and, To be consistent with and implement the Federal Communications Act of 1996 and RCW 80.36.375. Section 2. Section 22-1 of the Federal Way City Code is hereby amended to incorporate the following definitions in alphabetical order: Abandoned personal wireless service_facility shall mean a PWSF that meets the following: (.1) Operation has voluntarily ceased for a period of 60 or more consecutive days; or, (2) The effective radiated power of an antenna has been reduced by 75 percent for a period of 60 or more consecutive days; or, (3) The antenna has been relocated at a point less than 80 percent of the height of the support structure; or, The number of transmissions from an antenna has been reduced by 75 percent for a period of 60 or more consecutive days. Cell-on-Wheels (C-O-W) shall mean a mobile temporary personal wireless service facility. Temporal_ Personal Wireless Service Facilily shall mean a personal wireless service facility which is to be placed in use for a.limited period of time, is not deployed in a permanent manner, and does not have a permanent foundation. DRAFT ORDINANCE NO. 99- , PAGE 2 EXH E ! PAGE '~1~-- ,~'iJg-'fst 18, 1999 2 z o ~ ~ ~ < ~ 5 ~ ~ ~.j~,.~,~,~,~, ~ 8 r'~ JE ¢ C) F,z~ PAGE Z < Z © Z .,< Z © n~ 0 0 Z < PAGE Z < z © PAGE PAGE ~'z Z Z Z Z DRAFT Section 14. Section 22-966 of the Federal Way City Code is hereby amended to read as follows: Sec. 22-966. Personal wireless service facilities (PWSF). (a) Purpose. This section addresses the issues of location and appearance associated with personal wireless service facilities. It provides adequate siting opportunities through a wide range of locations and options which minimize safety hazards and visual impacts sometimes associated with wireless communications technology. The siting of facilities on existing buildings or structures, collocation of several providers' facilities on a single support structure, and visual mitigation measures are required, unless otherwise allowed by the city, to maintain neighborhood appearance and reduce visual clutter in the city. (b) Definitions. Any words, terms or phrases used in this section which are not otherwise defined shall have the meanings set forth in section 22-1 of this Code. (c) Exemptions. The following antennas and facilities are exempt from the provisions of this section and shall be permitted in all zones consistent with applicable development standards as outlined in the Use Zone Charts, Article XI, District Regulations: Wireless communication facilities used by federal, state, or local public agencies for temporary emergency communications in the event of a disaster, emergency preparedness, and public health or safety purposes. (2) Industrial processing equipment and scientific or medical equipment using frequencies regulated by the FCC; provided such equipment complies with all applicable provisions of Section 22-960, Rooftop Appurtenances, and Chapter 22, Article XIII, Division 5, Height. (3) (4) Citizen band radio antennas or antennas operated by federally licensed amateur ("ham") radio operators; provided such antennas comply with all applicable provisions of Section 22-960, Rooftop Appurtenances, and Chapter 22, Article XIII, Division 5, Height. Satellite dish antennas less than two meters in diameter, including direct-to-home satellite services, when used as a secondary use of the property; provided such antennas comply with all applicable provisions of Section 22-960, Rooftop Appurtenances, and Chapter 22, Article XIII, Division 5, Height. (5) DRAFT ORDINANCE NO. 99- Automated meter reading (AMR) facilities for the purpose of collecting utility meter data for use in the sale of utility services, except for whip or other antennas greater than two (2) feet in length; provided the AMR facilities are within the scope of activities permitted under a valid franchise agreement between the utility service provider and the city. ? ...... ,.AOEI OAGE /q.,,...., 2.'/ August18,1999 DRAFT (6) Routine maintenance or repair of a wireless communication facility and related equipment excluding structural work or changes in height, dimensions, or visual impacts of the antenna, tower, or buildings; provided that compliance with the standards of this chapter are maintained. (e-)(d) Prioritized locations. The following sites shall be the required order of locations for proposed PWSFs, including antenna and equipment shelters, "--~o~....~ ~-~ · ~.~ ~;^.;,;.~,;^. In r-equestmg-proposing a PWSF in a particular location, the applicant shall analyze the feasibility of locating the proposed PWSF in each of the higher priority locations and document, to the city's satisfaction, why a locafion~ng the PWSF in each higher priority location an or zone is not being proposed. In order o reference, ~. ................................... the sites prioritized locations for PWSFs are as follows: (1) Structures located in the BPA trail: A PWSF may be located Oon any existing support structure currently located in the easement upon which are located U.S. Department of Energy/Bonneville Power Administration ("BPA") Power Lines regardless of underlying zoning. (2) Existing broadcast, relay and transmission towers: A PWSF may be located Oon any existing site or tower where a legal wireless telecommunication facility is currently located regardless of underlying zoning. If an existing site or tower is located within a one mile radius of a proposed PWSF location, the applicant shall document why collocation on the existing site or tower is not being proposed, regardless of whether the existing site or tower is located within the jurisdiction of the city. (3) Publicly-used structures: If the city consents to such location, mtaehed-m a PWSF may be located on existing public facilities within all zoning districts, such as water towers, utility structures, fire stations, bridges, and other public buildings w~tb.'~n al! zon:.ng fi:~stdcts; provided the public facilities are not located within public rights-of-way. (4) Appropriate Bbusiness, commercial~ and city center zoned sites: ~ may be located on private buildings or structures within appropriate business, commercial, and city center zoning districts. The preferred order of zoning districts for this category of sites is as follows: BP--Business Park CP- 1--Corporate Park OP through OP-4--Office Park PAGE ts DI~4FTORDINANCE NO. 99- , PAGE 15 August 18, 1999 DRAFT CC-C--City Center Core CC-F--City Center Frame BC--Community Business Appropriate public rights-of-way: For the purposes of this section, appropriate public rights-of-way shall be defined as including those public rights-of-way with functional street classifications of principal arterial, minor arterial, and principal collector. A PWSF may be located on existing structures in appropriate public rights-of-way. Structures proposed for location of PWSFs shall be separated by at least 330 linear feet. There shall be no more than one PWSF located on an existing structure. Existing structures in appropriate public rights-of-way shall not be eligible for submittal of a use process application for placement of a PWSF for one year from the date of the completion of construction or alteration. Location of a PWSF on an existing structure in an appropriate public right-of-way shall require a right-of-way permit in addition to the required use process approval. The preferred order of functional street classifications for this category of sites is 'as follows: Principal Arterial Minor Arterial Principal Collector If the PWSF is proposed to be located in an appropriate public right-of-way and the surrounding uses or zoning are not the same, that portion of the right-of-way with the most intensive use and/or zoning shall be the preferred location. If the PWSF is proposed to be located in an appropriate public right-of-way and surrounding uses or zoning are the same, the preferred location shall be that portion of the right-of-way with the least adverse visual impacts. If the applicant demonstrates to the city's satisfaction that it is not technically possible to site in a prioritized location, the city reserves the right to approve alternative site locations if a denial would be in violation of the 1996 Telecommunications Act, as determined by the city. Sec. 22-967. Development Standards The following development standards shall be followed in DRAFT ORDINANCE NO. 99- .EXHIE T 8 ""^°"'6pAG E August 18, 1999 DRAFT the design, siting, and construction of a personal wireless service facility. (-2)(a) Building or structure mounted PWSFs not in the right of way. PWSFs may-be mounted on vam~sid~at4~ existing buildings and structures not located in a public right-of-way shall conform to the following development standards ...a~.~.~. ,k~...~ .v-..c^u .... -.---~,: ..... ~v.~.-~..o.~;*: .... (1) The PWSF shall consist only of the following types of facilities: .... ~^~' ~. ~ A microcell or a minor facility; or, a. The, °xx~SX: ..... :sis ^c ~ A PWSF that exceeds the minor facility thresholds for number of antennas, dimensions, and/or area, but creates no more adverse impacts than a minor facility, as determined by the director of community development services, subject to meeting all of the following standards: The facility shall not create substantially more adverse visual impact than a minor facility; and, ii. The equipment cabinet for the PWSF shall meet all requirements of FWCC 22-967(e); and, Ul. The maximum size of the PWSF panels and number of antennas shall be determined by the director of community development services, based on the specific project location, surrounding environment, and potential visual impacts; and, iv. The PWSF shall comply with all other applicable standards of the FWCC. The combined antennas and supporting structure shall net may..extend mor-e-tha~ up to, but not exceed, 15 feet above the existing or proposed roof or other structure regardless of whether the existing structure is in conformance with the existing maximum height of the underlying zone as outlined in the Use Zone Charts, Article XI, District Regulations. Antennas may be mounted to rooftop appurtenances provided they do not extend beyond 15 feet above the roof proper. (3) The antennas are mounted on the building or structure such that they are located DRAFT ORDINANCE NO. 99- PAGE ,? August18,1999 DRAFT and designed to minimize visual and aesthetic impacts to surrounding land uses and structures and shall, to the greatest extent practical, blend into the existing environment pursuant to Section 967(d). Panel and parabolic antennas shall be oompietet-y screened from residential views and public rights-of-way unless meeting the provision of section 22-960(b)(2). £b..) P WSFs located on structures within appropriate public rights-o£-wa¥. These facilities shall conform to the following development standards: The PWSF shall consist only of the following types of facilities: a. TSe PWSF consist: cfa_A microcell or a minor facility; or, bo A PWSF that exceeds the minor facility thresholds for number of antennas, dimensions, and/or area, but creates no more adverse impacts than a minor facility, as determined by the director of communi _ty development services, subject to meeting all of the following standards: The facility shall not create substantially more adverse visual impact than a minor facility; and, ii. The equipment cabinet for the PWSF shall meet all requirements of FWCC 22-967(e) and FWCC 22-967(f); and, iii. The maximum size of the PWSF panels and number of antennas shall be determined by the director of community development services, based on the specific project location, surrounding environment, and potential visual impacts; and, iv. The PWSF shall comply with all other applicable standards of the FWCC. (2) The combined antennas may extend up to, but not exceed, 15 feet above the existing structure. This distance may be increased by the minimum necessary additional height to meet the safety clearances required by the operator of the existing structure. The antenna extension may be permitted regardless of whether the existing structure is in conformance with the maximum height of the underlying zone as outlined in the Use Zone Charts, Article XI, District Regulations. (3) The antennas shall be mounted on the structure such that they are located and designed to minimize adverse visual and aesthetic impacts to surrounding land uses and structures and shall, to the greatest extent practical, blend into the existing environment pursuant to Section 967(d). DRAFT ORDINANCE NO. 99- , PAGE 18 PAGE ag August18,1999 DRAFT (4) Structures in appropriate public rights-of-way proposed for location of PWSFs shall be separated by at least 330 linear feet. (5) Required setbacks shall not pertain to PWSFs within public rights of ways. ~ Yew, . ..~,~c .... ~,-~,---.~,'~a;"~ PWSFs New free-standing PWSFs. These structures shall conform to the following site development standards: Placement of a freestanding PWSF shall be denied if placement of the antennas on an existing structure can meet the applicant's technical and network location requirements. b:.(2) Monopoles shall be the only free-standing structures allowed in the city; except that a lattice tower may be used to accommodate the collocation of four or more providers as part of a joint permit application. In no case shall a free-standing PWSFs be located closer than 500 feet to an existing free-standing PWSF whether it is owned or utilized by the applicant or another provider. A free-standing PWSF, including the support structure and associated electronic equipment, shall comply with all required setbacks of the zoning district in which it is located. For developed sites, the setback requirements shall be those of the principal use of the subject property. For undeveloped sites, the setback requirements for new free-standing PWSFs shall be 20 feet for front, side, and rear yards. d45) Free-standing PWSFs shall be designed and placed on the site in a manner that takes maximum advantage of existing trees, mature vegetation, and structures so as to: Use existing site features to screen as much of the total PWSF as possible from prevalent views; and/or Use existing site features as a background so that the total PWSF blends into the background with increased sigq,,t distances. In reviewing the proposed placement of a facility on the site and any associated landscaping the city may condition the application to supplement existing trees and mature vegetation to roore effectively screen the facility. r47) Support structures, antennas, and any associated hardware shall be painted a nonreflective color or color scheme appropriate to the background against which DRAFT ORDINANCE NO. 99- , PAGE 19 4mgust 18, 1999 DRAFT the PWSF would be viewed from a majority of points within its viewshed. The ~proposed color or color scheme t~ shall be approved by the hearing examiner or ity d I p di ...... '~ ~^ *~ ~ commun eve o ment rector ar, ~'rr'~'v .........- r ....... (d) Screening standards for all PWSFs. PWSFs shall be screened or camouflaged through employing the best available technology and design, as determined by the city. This may be accomplished by use of compatible materials, location, landscaping, color, stealth techniques such as, but not limited to, artificial trees and hollow flag poles, and/or other methods or techniques to achieve minimum visibility of the facility as viewed from public streets or residential properties. In addition, the provisions for landscaping as outlined in the Use Zone Charts, Article XI, District Regulations, shall apply. Standards_for electronics equipment enclosures. · ~,,v .......................... v ..... underground ract;.cable. The following shall be the required order of locations for proposed electronic equipment enclosures for all PWSFs. In proposing an equipment enclosure in a particular location, the applicant shall analyze the feasibility of locating the proposed equipment enclosure in each of the higher priority locations and document, to the city's satisfaction, why a locating the equipment enclosure in each higher priority location is not being proposed. In requesting a lower priority location for the equipment enclosure, the burden of demonstrating impracticability shall be on the applicant. In order of preference, the prioritized locations for equipment enclosures are as follows: (a) Equipment enclosures shall be placed underground. (b) Equipment enclosures shall be placed in an existing completely enclosed building. (c) Equipment enclosures shall be placed above ground in an enclosed cabinet that shall not exceed six feet in height and occupy more than 48 square feet of floor area, including areas for maintenance or future expansion. (d) Equipment enclosures shall be placed above ground in a new completely enclosed building. DRAFT ORDINANCE NO. 99- If above ground, screening of PWSF equipment enclosures shall be pm~ided screened with one or a combination of the following matedais methods, which sor-ee~shall be acceptable to the city: fencing, walls, landscaping, structures, buildings or topography which will block the view of the equipment enclosure as much as to the greatest extent possible from any street and/or adjacent properties, as determined by the director of community development services. Screening may be located anywhere between the enclosure and the above mentioned viewpoints. B ._ August18,1999 DRAFT Landscaping for the purposes of screening shall be maintained in a healthy condition, as determined by the city. (3) Except for equipment enclosures in public rights of ways, enclosures shall be located outside of required setback areas. (4) If the equipment cabinet is located within a new completely enclosed building, the building shall conform to all applicable development standards and design guidelines for the underlying zone. The completely enclosed building shall be architecturally designed and shall be compatible with existing buildings on the site. The completely enclosed building shall be screened to the greatest extent possible from any street and/or adjacent properties by landscaping and/or topography. (f) Additional standards for equipment enclosures for PWSFs located on structures within appropriate public rights-of-way: The following shall be the required order of locations for proposed electronic equipment enclosures for PWSF located within public rights-of-way. In proposing an equipment enclosure in a particular location, the applicant shall analyze the feasibility of locating the proposed equipment enclosures in each of the higher priority locations and document, to the city's satisfaction, why a locating the equipment enclosure in each higher priority location is not being proposed. In requesting a lower priority location for the equipment enclosure, the burden of demonstrating impracticability shall be on the applicant. In order of preference, the prioritized locations for equipment enclosures are as follows: (a) Equipment enclosures shall be placed underground on an adjacent property outside of the public right-of-way. (b) Equipment enclosures shall be placed above ground on an adjacent property outside of the public right-of-way in an existing completely enclosed building. (c) Equipment enclosures shall be placed above ground on an adjacent property outside of the public right-of-way in an enclosed cabinet that shall not exceed six feet in height and occupy more than 48 square feet of floor area, including areas for maintenance or future expansion. (d) Equipment enclosures shall be placed above ground on an adjacent property outside of the public right-of-way in a new completely enclosed building. (e) Equipment enclosures shall be placed underground within the public right- - DP.~IFT ORDINANCE NO. 99- ,P^oE21pA, F__2 ~.~ '~--~ ~ August 18, 1999 DRAFT of-way. (0 Equipment enclosures shall be placed above ground within the public right-of-way in an enclosed cabinet that shall not exceed six feet in height and occupy more than 24 square feet of floor area, including areas for maintenance or future expansion. (2) Equipment enclosures shall be designed, located, and screened to minimize adverse visual impacts from the public right-of-way and adjacent properties. (3) Equipment enclosures shall be designed, located, and screened to minimize adverse visual and functional impacts on the pedestrian environment. (4) Equipment enclosures and screening shall not adversely impact vehicular sight distance. Security Fencing. a-J_D No fence shall exceed six feet in height as stipulated in section 22-1133(5). Security fencing shall be effectively screened from view through the use of appropriate landscaping materials. Chain-link fences shall be painted or coated with a nonreflective color. (~h(.b_) Cumulative Effects. The city shall consider the cumulative visual effects of PWSFs mounted on existing structures and/or located on a given permitted site in determining whether the additional permits can may be granted so as to not adversely effect the visual character of the city. ~ Signaee. No wireless equipment shall be used for the purpose of mounting signs or message displays of any kind, except for signs used for identification and name of provider. Use zone charts, height and permit process. (1) The final approval authofi, ty for applications made under this section shall be defined by the appropriate permit process as outlined in the Use Zone Charts, Article XI, District Regulations. DRAFT ORDINANCE NO. 99- r:':'-, August 18, 1999 DRAFT (2) Allowed heights shall be established relative to appropriate process as outlined in the Use Zone Charts, Article XI, District Regulations. Sec. 22-968. Nonconformance. Permit applications made under this section to locate a PWSF on property on which a nonconformance is located shall be exempt from the requirements of Chapter 22~ Article IV, Nonconformance, to bring the property into conformance as follows: (a) To provide the public improvements required by Chapter 22, Article XVI, Improvements, as stipulated in Section 22-336. (b) To bring the property into conformance with the development regulations prescribed in Chapter 21 relating to water quality as stipulated in Section 22-337(a)(7). All other requirements of Section 22-337 to bring the property into conformance with the development regulations prescribed in Chapter 21 relating to water quality shall apply. Section 22-969. Temporary Personal Wireless Service Facilities. As determined by the director of community development services, a temporary personal wireless service facility, or cell-on- wheels, may be deployed and operated as follows: (a) For a period of 90 days during the construction of a free-standing PWSF which has been approved through the appropriate permit process; provided that the temporary personal wireless service facility or cell-on-wheels creates no more adverse impacts than the PWSF which was approved through the appropriate permit process. Only one temporary personal wireless service facility or cell-on- wheels shall be permitted for a single site. (b) For a period of 30 days during an emergency declared by the city, state, or federal government that has caused a free-standing PWSF which has been approved through the appropriate permit process to become involuntarily non-operational; provided that the temporary_ personal wireless service facility or cell-on-wheels creates no more adverse impacts than the PWSF which was approved through the appropriate permit process. (c) Prior to installation of the temporary PWSF, the applicant shall provide the city with a cash bond in an amount to be determined by the director of community development services in order to guarantee performance of future removal and restoration of the site. Section 22-970. Application Requirements. ,.v,~. ........... ~ ............. (a) Except for Temporary Personal Wireless Facilities, taEermit applications made under this seciion shall include the following minimum information in addition to that required for the underlying permit review process: DRAFT ORDINANCE NO. 99- August 18, ! 999 DRAFT (1) A diagram or map showing the primary viewshed of the proposed facility. (2) Photosimulations of the proposed facility from effected properties and public rights-of-way at varying distances. (3) Architectural elevations of proposed facility and site. (4) A coverage chart of the proposed PWSF at the requested height and an explanation of the need for that facility at that height and in that location. The explanation shall include an analysis of ~*--'-"*;-'e ~:*~ ~nd why *~' ........ ,~a ^a. ...... :k~ ~^~+:^.~ the feasibility of locating the site i~ prefe:'red over ...... v ................. proposed PWSF in each of the higher priority locations as identified in Section 22-966(d), and documentation of why locating the PWSF in each higher priority location and/or zone is not being proposed. (5) An inventory of other PWSF sites operated by the applicant or other providers ~,~, .... :,~,~ :_ ~s.~ ~:~ .... within a one mile o-f-41s-l~r-d~ radius of the proposed PWSF location, including specific information about location, height, and design of each facility. (6) A site/landscaping plan showing the specific placement of the PWSF on the site; showing the location of existing structures, trees, and other significant site features; and indicating type and locations of plant materials used to screen PWSF components. (7) If the PWSF electronic equipment cabinet is proposed to be located above ground, regardless of the proposed location, whether on private or public property or within public right of way, an explanation of why it is impracticable to locate the cabinet undergrouund. (8) If the equipment cabinet is proposed to be located in a public right-of-way, an explanation of why it is impracticable to locate the equipment cabinet on adjacent property outside the public right-of-way. Documentation of efforts to collocate on existing facilities. Other information as deemed necessary by the community development director. (b) Permit applications for Temporary Fersonal Wireless Service Facilities shall include the following minimum information: Documentation of previously permitted facility. DRAFT ORDINANCE NO. 99- PAGE ., PAGE 24 August 18, 1999 DRAFT (2) Site plan showing proposed location of temporary facili _ty in relationship to the location of the previously permitted facility and property boundaries, including dimensions from the property lines and height of proposed facility. (3) Photographs of the proposed facility. Section 22-971. Collocation. (~)C~.!!oca:ion. (!)(a) A permittee shall cooperate with other PWSF providers in collocating additional antenna on support structures and/or on existing buildings and sites provided said proposed collocatees have received a permit for such use at said site from the city. A permittee shall allow other providers to collocate and share the permitted site, provided such shared use does not give rise to a substantial technical level impairment of the permitted use (as opposed to a competitive conflict or financial burden). In the event a dispute arises as to whether a permittee has exercised good faith in accommodating a new applicant, the city may require a third party technical study at the expense of the permittee. Failure to comply with this provision may result in a revocation of the permit. (-~(b) A signed statement indicating that the applicant agrees to allow for the potential collocation of additional PWSF equipment by other providers on the applicant's structure or within the same site location shall be submitted by the applicant as part of the permit application. If an applicant contends that future collocation is not possible on their site, they must submit a technical study documenting why. Section 22-972. EMF Standards and Interference. ~ The applicant shall comply with federal standards for EMF emissions. Within six months after the issuance of its operational permit, the applicant shall submit a project implementation report which provides cumulative field measurements of radio frequency (EMF) power densities of all antennas installed at the subject site. The report shall quantify the EMF emissions~ an~ compare the results with established federal standards, and provide a statement that the EMF emissions are within established federal standards. Said report shall be subject to review and approval of the city for consistency with the project proposal report and the adopted federal standards. If on review, the city finds that the PWSF does not meet federal standards, the city may revoke or modify the permit. The applicant shall be given a reasonable time based on the nature of the problem to comply with the federal standards. If the permit is revoked, then the facility shall be removed. (2)(b) The applicant shall ensure that the PWSF will not cause localized interference with the reception of area television or radio broadcasts or the functioning of other electronic EXH E I DRAFT ORDINANCE NO. 99- ' PAGEl~AC ~'~-~.~ &5 ,..' ~ ~q_. August 18, 1999 DRAFT devices. If on review of a registered complaint the city finds that the PWSF interferes with such reception, the city may revoke or modify the permit. The applicant shall be given a reasonable time based on the nature of the problem to correct the interference. If the permit is revoked, then the facility shall be removed. Section 22-973. Removal of Facility. (~ Faci!LS' remora!. ,~.~,..t~ w~x Abandonment and removal. The owner or operator of a PWSF shall provide the city with a copy of the notice of intent to cease operations required by the FCC at the time it is submitted to the FCC. Additionally, :l:the owner or operator of a PWSF shall notify the city in writing upo~ o__f the disce,ntinued '.:se abandonment of a particular facility within 30 days of the date the PWSF is abandoned. The abandoned PWSF shall be removed by the facility owner within 90 days of the date the site's use is disce,ntin'aed PWSF is abandoned, ~ opcmuion~, the permit is revoked, or if the facility falls into disrepair and is not maintained, as determined by the city. Disrepair includes structural features, paint, landscaping, or general lack of maintenance which could result in adverse safety or visual impacts. If there are two or more users of a single tower, then the city's right to remove the tower shall not become effective until all users abandon the tower. (b) Partial abandonment and removal. If the abandoned antennas on any PWSF are removed or relocated to a point where the top 20 percent or more of the height of the supporting structure is no longer in use, the PWSF shall be considered partially abandoned. The owner or operator of any partially abandoned PSWF shall notify the city in writing of the partial abandonment of a particular facility within 30 days of the date the PWSF is partially abandoned. The owner of the PWSF shall have 120 days from the date of partial abandonment to collocate another service on the PWSF. If another service provider is not added to the PWSF within the allowed 120 day collocation period, the owner shall in 210 days of partial abandonment, dismantle and remove that portion of the supporting structure which exceeds the point at which the highest operational antenna is mounted. t'~xf,q~..j~.~, Removal and lien. If the provider fails to remove the abandoned or partially abandoned facility upon gq} 210 days of its di:czntin'.'.ed ',:se abandonment or partial abandonment, the responsibility for removal falls upon the property owner on which the rti lly ility tmsO0een abandoned or pa a abandoned fac _is located. u:.. o ....,.. o .... .~o r~cno~ The city may enforce this paragraph using the procedures as set forth in FWCC, Article 3, Section 1-14. DRAFT ORDINANCE NO. 99- ., PAGE 26/F'%~"/G. ,.}~,)~.~,, L._'[7-- .___..--_~ .~_.~. August 18, 1999 DRAFT Section 22-974. Permit Limitations. (-k-) Permit limitations. (!)L0_) A permit for a PWSF shall expire ten years after the effective date of the permit approval, unless earlier revoked by the city. A permittee wishing to continue the use of a specific PWSF at the end of the ten-year period must apply for an application to continue that use at least six months prior to its expiration. The renewal application shall comply with all applicable laws and regulations dictating new permit issuance. In ruling on said renewal the city shall consider all then existing regulations effecting the application that are appropriate to the technology and use. ~)(b) Five years after the,~,,~a~*'~ ..."c*~,.- ,-~J"a'",, ......... -vv... ,-.~ effective date of the land use process approval of a PWSF~ the permittee or assignee shall submit a written statement summarizing its current use and plans, if any, for that facility/site for the next five years to the best of their knowledge. (-3-)(c) Consistent with the provisions of Section 22-408, A_an approved permit for a PWSF shall be valid for one year from the date of tke city's approval effective date of the use process approval, with opportunity for a one-year extension. If laol-used a building permit application is not received within one year of the effective date of the use process approval, or within the extension period, the pemait use process approval shall become null and void. Section 22-975. Revocation of Permit. (4) Revocation ofpcrmit. A permit issued under this article may be revoked, suspended or denied for any one or more of the following reasons: (4-)(a) Failure to comply with any federal, state or local laws or regulations; (-2-)(b) Failure to comply with any of the terms and conditions imposed by the city on the issuance of a permit; ~ When the permit was procured by fraud, false representation, or omission of material facts; r,~ -~_~wax Failure to cooperate with other PWSF providers in collocation efforts as required by this article; (--5-)(e) Failure to comply with fed.eral standards for EMF emissions; and (6-)LI) Failure to remedy localized interference with the reception of area television or radio broadcasts or the functioning of other electronic devices. E×H i ! DRAFT ORDINANCE NO. 99- PAGE 27 ' Pkc, Z_ _I.... ,,~_~_~.__A_u.._gust '8, 1999 DRAFT (-7-)(g) Pursuant to Section 22-7(c), the city, as the applicant, shall use the same process to determine if the permit shall be revoked as it used to grant the permit. Section 15. Section 22-1473 of the Federal Way City Code is hereby amended to read as follows: Sec. 22-1473. When public improvements must be installed. (a) The applicant shall provide the improvements required by this article if the applicant engages in any activity which requires a development permit, except for the following: (1) The applicant need not comply with the provisions of this article if the proposed improvements in any 12-month period do not exceed 25 percent of the assessed or appraised value (based on an MAI appraisal provided by the applicant) of all structures on the subject property, whichever is greater. (2) The applicant need not comply with the provisions of this article if, within the immediately preceding four years, public improvements were installed as part of any subdivision or discretionary land use approval under this or any prior zoning code. (3) The applicant need not comply with the provisions of this article if the proposal is to locate a Personal Wireless Services Facility (PWSF) on the subject property. (b) Right-of-way adjacent to and within subdivision and short subdivisions must be dedicated and improved consistent with the requirements of this article, unless different requirements are imposed by the city as part of the subdivision or short subdivision approval. Section 16. Severability. The provisions of this ordinance are declared separate and severable. The invalidity or unconstitutionality of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance or the invalidity of the application thereof to any person or circumstance, shall not effect the validity of the remainder of the ordinance, or the validity of its application to other persons or circumstances. Section 17. Effective Date. This ordinance shall take effect and be in force five (5) days after its passage, approval, and publication, as provided by law. PASSED by the City Council of tiae City of Federal Way at a regular meeting of the City Council on the __ day of ,1999. DRAFT ORDINANCE NO. 99- August 18, 1999 DRAFT APPROVED: RON GINTZ, MAYOR ATTEST: N. CRISTINE GREEN, CITY CLERK APPROVED AS TO FORM: LONDI K. LINDELL, CITY ATTORNEY FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: DRAFT ORDINANCE NO. 99- , PAGE 29 August 18, 1999 SUMMARY Commissioners present: Robert Vaughan (Chair), Karen Kirkpatrick, William Drake, Hope Elder, Eric Faison, John Caulfieid, and Ed Soule. Commissioners absent: None. Alternative Commissioners present: None. Staff present: Senior Planner Margaret Clark, Contract Associate Planner Tim McHarg, and Administrative Assistant E. Tina Piety. Chair Vaughan called the meeting to order at 7:02 p.m. APPROVAL OF MINUTES None. AUDIENCE COMMENT None. ADMINISTRATIVE REPORT None. COMMISSION BUSINESS- Personal Wireless Service Facilities Code Amendments The Public Hearing was opened at 7:03 p.m. Commission Kirkpatrick excused herself from the Public Hearing due to the appearance of a conflict of interest. Mr. McHarg gave the staff report. The impetus for the amendments were changing technology and the need to make an unwieldy code section more user friendly. The proposed changes are needed to deal with mobile PWSF's, implement an interpretation made by the Community Development Services Director, create a process for facilities in the public right-of-way, and clean up the charts and text. The proposed changes consist of: 1) adding three definitions; 2) changes to the use zone charts; 3) text changes. Discussion was held on Automated Meter Readers (AMR). The staff explained what it is and proposed a change to 22-966(c)(5), "...greater than two feet in height" is to be added after the words, "...other antennas." The Public Testimony was opened at 7:34 p.m. Pamela Krueger, Perkins Coie, 411 - 108th Ave NE, Ste 1800, Bellevue, WA 98004 - She is representing Puget Sound Energy. She provided the commission with a letter and back-up documentation about AMR's. Most of her testimony came directly from her letter. She wanted to make clear that an AMR is different from a PWSF in that it is solely for the collection of data for use by the company. She is asking that a clear exemption from PWSF's be made. She Planning Commission July 21, 1999 PAGE explained that there are three parts to an AMR system: the device to modify the meter; a pole top device for the initial data collection; and a collection device that gathers data from several poll devices. As proposed, the code will exempt the first two parts of the system, with the third required to go through a Process I. This makes it difficult for PSE to get their system up and running. She requested that all three parts of the AMR system be exempt. Two concerns PSE has with the Process I is that it expires in 10 years and requires collocation, which would not work with their technology. Further discussion was held on the AMR issue. Staff concedes that further study is needed. In the interim, AMR's are similar to PWSF's and should be so regulated. Brian Johnson, Voice Stream Wireless, 19307 North Creek Parkway, #101, Bothell, WA 98011 - He spoke on the placement of PWSF's on structures in the public right-of-way. Public utilities are beginning to require a 15 foot height distance between their transmission lines and PWSF's. He requested that PWSF's be allowed to exceed the 15 foot requirement in such cases. Lisa Verner, Commercial Development Solutions, PO Box 70372, Seattle, WA 98107 - She is representing AT&T. She provided the commission a letter with a series of recommendations and went over each one. She asked from what did the city base the cabinet size? The size is too small. Staff replied that the cabinet sized is based on the Traffic Division's equipment box size which is based on the functional impacts to the right-of-way. She also expressed concern that only one PWSF may be located on an existing structure in the right-of-way. Staff replied that this is to avoid visual clutter. Josh Lonn, 120 Lakeside Ave, Ste 310, Seattle, WA 98122 - He represents Airtouch. He stated that he agrees with previous testimony. The 48 square foot limitation outside the right- of-way is a serious limitation. The restriction to one PWSF in the right-of-way is inconsistent with the city's policy of collocation. The Public Testimony was closed at 8:50 p.m. The commission discussed the need to reevaluate the equipment cabinet size, AMR's, and other issues raised in the public testimony. It was m/sic to continue the public hearing to Wednesday, August 18, 1999. ADDITIONAL BUSINESS None. AUDIENCE 'COMMENT None. ADJOURN It was m/s/c to adjourn the meeting at 9:05 p.m. K \COMMON AD~PLANCOMM 999\072199S WPD C SUMMARY Commissioners present: Robert Vaughan (Chair), Karen Kirkpatrick, Hope Elder, Eric Faison, John Caulfield, and Ed Soule. Commissioners absent: William Drake. Alternative Commissioners present: None. Staff present: Deputy Director of Public Works Ken Miller, Traffic Engineer Rick Perez, Senior Planner Margaret Clark, Contract Associate Planner Tim McHarg, and Admin Assistant E. Tina Piety. Chair Vaughan called the meeting to order at 7:00 p.m. APPROVAL OF MINUTES The minutes of June 2, 1999 were approved. AUDIENCE COMMENT None. ADMINISTRATIVE REPORT Mr. Miller and Mr. Perez gave a presentation of the various street projects planned (and under construction) throughout the city. These include: Pacific Highway South, South 320a and Pacific Highway South intersection, BPA Trail Phase III, Sound Transit Center, and other projects. COMMISSION BUSINESS- Personal Wireless Service Facilities Code Amendments - Continued The Public Hearing reconvened at 8:10 p.m. Commission Kirkpatrick excused herself from the Public Hearing due to the appearance of a conflict of interest. The Public Testimony was opened at 8:12 p.m. Lisa Verner, Commercial Development Solutions, PO Box 70372, Seattle, WA 98107 - She represents AT&T. She requested that public facilities in right-of-ways (ROW) be number 3 on the priority list and that collocation be allowed. The ROW is the appropriate place for infrastructure, which is what PWSF's are. She requested that the word "appropriate" be deleted. The staff definition (a principal arterial, minor or collector street) is not clear. She requested that the one-year limitation be deleted and that PWSF's be allowed to locate in the setback area in order to take advantage of existing vegetation for screening on all four sides. She requested that the use zone charts be amended to allow monopoles in residential areas under Process IV. Not allowing them could prevent providing service to the entire city. Josh Lonn, 120 Lakeside Ave, Ste 310, Seattle, WA 98122 - He represents Airtouch. He thanked the staff for their hard work and stated that he agrees with Lisa. Why should equipment be undergrounded? The equipment for undergrounding is not available. Planning Commission August 18. 1999 PAGL__ c 2 Brian Johnson, Voice Stream Wireless, 19307 N Creek Pkwy, #101, Bothel, WA 98011 - He also thanked the staff for their work. He requested that the process be lowered to a Process I when locating on an existing structure in the ROW in residential zones. The Public Testimony was closed at 8:30 p.m. Mr. McHarg gave the staff presentation. He summarized the significant changes. Additional changes were distributed. He went over the standards for equipment enclosures. The city has developed a hierarchy for the placement of equipment enclosures. The size for equipment enclosures in the ROW is the one approved by the Public Works Department. He stated that the regulation for temporary PWSF's has been changed to allow all providers on a site to locate a temporary PWSF, on-site, for up to 30 days. The city wants to encourage location of PWSF's on private property rather than the ROW, hence the lower priority on the location hierarchy. In addition, it is felt that ROW's are intended to accommodate items of a linear nature, such as conduits; PWSF's are not linear in nature. Mr. McHarg remarked that the staff believes the term "appropriate" is self-referential. The commission disagrees and requested staff to add a sentence that clearly defines "appropriate." Mr. McHarg went on to say that without the one-year limitation, the attempt could be made to circumvent the height restriction. PWSF's are not allowed in the setback in order to screen them from the ROW. Allowing them in the setback could decrease the amount of vegetation and could make maintenance access problematic. Allowing PWSF's in residential zones would be a significant policy change for the city. On the priority list,//6 allows location in non-priority zones in order to ensure that service would be provided to all areas of the city. Lowering the process to a Process I would also be a significant policy change for the city. Process III requires public notification, which is not required in Process I. Mr. McHarg commented that there is a response in the staff report to the issue of Automated Meter Readers. The pole-top units will be exempt, but the data collection units will have to go through a Process III (staff expects that three to four data collection units will cover the city). It was m/s/c (no nays) to send the recommendation forward to the City Council with the addition of a sentence clearly defining the word "appropriate." The Public Hearing was closed at 8:57 p.m. ADDITIONAL BUSINESS Commissioner Caulfield requested a presentation from Parks on the capital facilities. It was suggested that a formal presentation be given about every other meeting from the different city departments on issues of interest to the commission. Ms. Clark gave a presentation of current planning projects. AUDIENCE COMMENT None. ADJOURN It was m/s/c to adjourn the meeting at 9:15 p.m. K \COMMON AD~PLANCOM~ 1999\081899S WPD PWSF FWCC Amendment Distribution List Outside Agencies/Organizations 1. Airtouch Cellular 7. Josh Lonn The Walter Group 120 Lakeside Avenue, Suite 310 Seattle, WA 98122 Ross Baker AT&T Wireless 617 Eastlake Avenue East Seattle, WA 98109 o Kate Stephens GTE Wireless 2445 - 140th Avenue NE, Suite 202 Bellevue, WA 98005 Mary Murdoch Nextel Communications 1750 - 112th Avenue NE, Suite C-100 Bellevue, WA 98004 o Donald Bordenave Sprint PCS 4683 Chabot Drive, Suite 100 Pleasanton, CA 94588 o Kelly Campbell US West Wireless 450 - 1 l0th Avenue NE, Room 211 Bellevue, WA 98004 10. 11. Brian Johnson Voice Stream Wireless 3650 - 131st Avenue SE, #400 Bellevue, WA 98006 Brian Pollom Puget Sound Energy PO Box 90868 Bellevue, WA 98009-0868 Pamela Krueger Perkins Coie LLP 411 - 108th Avenue NE, Suite 1800 Bellevue, WA 98004-5584 Lisa Vemer, AICP Commercial Design Solutions PO Box 70372 Seattle, WA 98107 Gregory J. McCormick, AICP Odelia Pacific 1201 - 3rd Avenue, Suite 320 Seattle, WA 98101 1 :~K)C UMEN'P, TelecomLDis~ bu tion 2 List doc EXH B PAGE__L