030-20 - Ordinance - Development Agreements, Amending Chapter 20.26ORDINANCE NO. 030-20
AN ORDINANCE OF THE CITY OF PORT ORCHARD, WASHINGTON,
RELATING TO DEVELOPMENT AGREEMENTS; AMENDING SECTION
20.22.020 OF THE PORT ORCHARD MUNICIPAL CODE FOR
CONSISTENCY WITH THE APPEAL PROVISIONS FOR DEVELOPMENT
AGREEMENT CONTAINED IN CHAPTER 20.26 OF THE PORT
ORCHARD MUNICIPAL CODE, AMENDING PORT ORCHARD
MUNICIPAL CODE CHAPTER 20.26 TO ADD CLARITY ON THE USE
AND PROCEDURES FOR DEVELOPMENT AGREEMENTS AND TO
MAKE SUCH AGREEMENTS CONSISTENT WITH CURRENT LAW,
AMENDING SECTIONS 20.26.010, 20.26.030, 20.26.050 AND
ADDING NEW SECTIONS 20.26.060 AND 20.26.070; PROVIDING
FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, pursuant to RCW 36.70B.170, the City Council has the authority to review and
enter into development agreements that govern the development and use of real property within
the City; and
WHEREAS, such agreements are advantageous to both municipalities and applicants by
facilitating certainty and stability in the land use permitting process, while also providing
flexibility in the innovative application of local development standards, often leading to enhanced
project design and infrastructure improvements for the public; and
WHEREAS, the City Council adopted standards and procedures governing the City’s use
of development agreements, codified at Chapter 20.26 of the Port Orchard Municipal Code
(POMC); and
WHEREAS, the City Council desires to adopt the amendments to those regulations set
forth in this ordinance to enhance the City’s ability to utilize development agreements for the
benefit of the City and public; and
WHEREAS, this Ordinance was submitted to the Department of Commerce for review on
April 2, 2020, and review was granted on April 3, 2020; and
WHEREAS, on April 17, 2020, the City’s SEPA official issued a determination of
nonsignificance for the proposed revisions, and there have been no appeals; and
WHEREAS, the Planning Commission conducted a public hearing on the substance of this
Ordinance on October 8, 2020, and recommended adoption by the City Council; and
WHEREAS, the City Council, after careful consideration of the recommendation from the
Planning Commission, all public comment, and the Ordinance, finds that this Ordinance is
consistent with the City’s Comprehensive Plan and development regulations, the Growth
Ordinance No. 030-20
Page 2 of 13
Management Act, Chapter 36.70A RCW, and that the amendments herein are in the best
interests of the residents of the City and further advance the public health, safety and welfare;
now, therefore,
THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DO ORDAIN AS
FOLLOWS:
SECTION 1. Findings and Recitals. The recitals set forth above are hereby adopted and
incorporated as findings in support of this Ordinance.
SECTION 2. Section 20.22.020 of the Port Orchard Municipal Code is hereby amended to
add a footnote “2” and read as follows:
20.22.020 Determination of types – Table.
(1) Determination of Proper Decision Type. The director shall determine the proper review
procedure for all land use and development permit applications and actions. If there is a
question as to the appropriate type of process, the director shall resolve it in favor of the higher
process type number.
(2) Optional Consolidated Permit Processing. An application that involves two or more
procedures may be processed collectively under the highest numbered procedure required for
any part of the application or processed individually under each of the procedures identified by
the code. The applicant may determine whether the application shall be processed collectively
or individually. If the application is processed under the individual procedures option, the
highest numbered type procedure must be processed prior to the subsequent lower numbered
procedure. If the individual procedure option is chosen, the applicant will be eligible for any fee
reduction contained in the current fee schedule.
Table 20.22.020 – Permit Review Type Classifications
Type I
Director
Decision
Judicial Appeal
Type II
Director Decision
HE Appeal
Type III
HE Decision
Judicial Appeal
Type IV
City Council Decision
Judicial Appeal
Type V
City Council Decision
GMHB Appeal
Building
Permit1 (Subtitl
e X of this title)
Binding Site
Plan, Final
Short Plat,
Preliminary,
Alteration of
Preliminary,
Alteration of
Final, Vacation
Preliminary Plat,
Preliminary Plat Major
Modifications,
Alteration of Final,
Vacation of Final
Final Plat
(Chapter 20.90 POMC)
Site-Specific Rezone
without
Comprehensive Plan
Development
Agreement
(Chapter 20.26
POMC)
Comprehensive
Plan
Ordinance No. 030-20
Page 3 of 13
Table 20.22.020 – Permit Review Type Classifications
Type I
Director
Decision
Judicial Appeal
Type II
Director Decision
HE Appeal
Type III
HE Decision
Judicial Appeal
Type IV
City Council Decision
Judicial Appeal
Type V
City Council Decision
GMHB Appeal
(Chapter 20.94
POMC)
Preliminary Plat
– Minor
Modifications
(Chapter 20.88
POMC)
Minor Land
Disturbing
Activity Permit
(Chapter 20.140
POMC and
POMC 20.150.1
00)
Boundary Line
Adjustment
(Chapter 20.84
POMC)
Code
Interpretation
(Chapter 20.10
POMC)
Legal
Nonconforming
Permit
(Chapter 20.54
POMC)
Short Plat, Final
(Chapter 20.86
POMC)
Sign Permit (if
SEPA not
required)
(Chapter 20.132
POMC)
of Final
(Chapters 20.86
and 20.96 POMC
)
Temporary Use
Permit
(Chapter 20.58 P
OMC)
Binding Site Plan
– Preliminary,
Alteration of
Preliminary,
Alteration of
Final, Vacation
of Final
(Chapter 20.94 P
OMC)
Stormwater
Drainage Permit
(Chapter 20.150
POMC)
Sign Permit (if
SEPA required)
(Chapter 20.132
POMC)
Shoreline
Substantial
Development
Permit,
Administrative
(Chapter 20.164
POMC)
(Chapters 20.88 and 2
0.96 POMC)
Variance
(Chapter 20.28 POMC)
Conditional Use
Permit
(Chapter 20.50 POMC)
Shoreline Substantial
Development Permit,
Conditional Use
Permit, and
Nonadministrative
Variance
(Chapter 20.164 POM
C)
Planned Residential
Developments
Comprehensive Sign
Design Plan Permits
Final Plat – Alteration
or Vacation
(Chapter 20.96 POMC)
View Protection
Overlay District
(VPOD) Variance
(POMC 20.38.860)
Amendment
(Chapter 20.42 POMC)
Amendment –
Land Use Map
Amendment,
Text
Amendment
(Chapter 20.04
POMC)
Legislative
Zoning Map
Amendment
(Chapter 20.06
POMC)
POMC
Title 20 Code
Amendment
(Chapter 20.06
POMC)
Annexations2
Ordinance No. 030-20
Page 4 of 13
Table 20.22.020 – Permit Review Type Classifications
Type I
Director
Decision
Judicial Appeal
Type II
Director Decision
HE Appeal
Type III
HE Decision
Judicial Appeal
Type IV
City Council Decision
Judicial Appeal
Type V
City Council Decision
GMHB Appeal
Sign Variance
(Chapter 20.132
POMC)
Shoreline
Permit
Exemption
(Chapter 20.164
POMC)
Temporary Use
Permit,
Extension
(Chapter 20.58
POMC)
Major Land
Disturbing
Activity Permit
(Chapter 20.140
POMC and
POMC 20.150.10
0)
Variance –
Administrative
(Chapter 20.28 P
OMC)
Untyped review and decision actions: preapplication meeting (Chapter 20.24 POMC), design
review board review and recommendation (POMC 20.127.030), tax exemption for multifamily
development (Chapter 3.48 POMC), capacity reservation certificate (Chapter 20.180 POMC),
public works design variation, right-of-way permit (Chapter 12.04 POMC), street use permit
(Chapter 12.24 POMC), water/sewer connection permit (Chapter 13.04 POMC).
1 If a building permit application does not require SEPA review, no public notice is required. If
a building permit application requires SEPA review, public notice shall be provided
consistent with the requirements for Type II applications pursuant to Chapter 20.25 POMC.
2 A Development Agreement that is consolidated with a Type I, II, III, or IV project permit
application may be appealed pursuant to chapter 36.70C RCW.
SECTION 3. Amendment. Chapter 20.26 of the POMC is hereby amended to read as
follows:
POMC 20.26
PERMITTING AND DEVELOPMENT APPROVAL – DEVELOPMENT AGREEMENTS
DEVELOPMENT APPROVAL – DEVELOPMENT AGREEMENTS
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Sections:
20.26.010 Intent and discretionary nature. Purpose and authority.
20.26.020 Form of agreement, effect and general provisions.
20.26.030 Application requirements.
20.26.040 Phasing.
20.26.050 Processing procedures and appeals.
20.26.060 Discretionary legislative action.
20.26.070 Unauthorized fees prohibited.
20.26.010 Intent and discretionary nature. Purpose and authority.
The purpose of this chapter is to authorize the use of development agreements, consistent with
RCW 36.70B.170 through 36.70B.210. The city may, but under no circumstances is required to,
enter into a development agreement with a person having ownership or control of real property
within the city. The development agreement may address such project elements as those set
forth herein, pursuant to RCW 36.70B.170B(3). The development agreement shall be consistent
with the applicable development regulations of the city. The consideration provided by the
property owner for the city’s decision to enter into the development agreement may vary,
depending on the benefit the development agreement will provide to the city and/or the public
in general.
20.26.020 Form of agreement, effect and general provisions.
(1) Form. All development agreements shall be on the standard form approved in advance by the
city attorney for this purpose. A development agreement shall set forth the development
standards and other provisions that apply to and govern and vest the development, use, and
mitigation of the development of the real property for the duration specified in the agreement.
(a) For the purposes of this chapter, “development standards” may include, but are
not limited to:
i. Project elements such as residential densities, nonresidential densities and
intensities or building sizes;
ii. The amount and payment of impact fees imposed or agreed to in accordance
with any applicable provisions of state law, any reimbursement provisions,
Ordinance No. 030-20
Page 6 of 13
other financial contributions by the property owner, inspection fees, or
dedications;
iii. Mitigation measures, development conditions, and other requirements under
Chapter 43.21C RCW;
iv. Design standards such as maximum heights, setbacks, landscaping, and other
development features;
v. Affordable housing;
vi. Parks and open space preservation;
vii. Phasing;
viii. Review procedures and standards for implementing decisions;
ix. A build-out or vesting period for applicable standards; and
x. Any other development requirement or procedure deemed appropriate by the
City Council.
(b) In order to encourage innovative land use management and provide flexibility to
achieve public benefits, a development agreement adopted pursuant to this chapter may impose
development standards that differ from the following development regulations of the Port
Orchard Municipal Code, provided that any development standards imposed by the development
agreement shall be consistent with the comprehensive plan:
i. Chapter 20.08 Vesting
ii. Chapter 20.12: Definitions
iii. Chapter 20.30: Introduction of Zoning, Land Uses, and Building Types
iv. Chapter 20.32: Building Types
v. Chapter 20.33: Greenbelt Districts
vi. Chapter 20.34: Residential Districts
vii. Chapter 20.35: Commercial and Mixed-Use Districts
viii. Chapter 20.36 Industrial Districts
ix. Chapter 20.37: Civic and Open Space Districts
x. Chapter 20.38 Overlay Districts
xi. Chapter 20.39: Use Provisions
xii. Chapter 20.40: Site and Lot Dimensions
xiii. Chapter 20.41: Site and Lot Development
xiv. Chapter 20.54: Non-Conformities
xv. Chapter 20.68: Accessory Dwelling Units
xvi. Chapter 20.80 Subdivision – General Provisions
xvii. Chapter 20. 82 Administration and Enforcement
xviii. Chapter 20. 84 Boundary Line Adjustments
xix. Chapter 20.86: Short Subdivisions
xx. Chapter 20.88: Subdivisions – Preliminary Plats
xxi. Chapter 20.90: Subdivisions – Final Plats
xxii. Chapter 20.94: Binding Site Plans
xxiii. Chapter 20.96: Vacation and Alteration of Final Plans and Short Plats
xxiv. Chapter 20.98 Improvements
xxv. Chapter 20.100 Development Standards – Subdivision Design
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xxvi. Chapter 20.120 Development Standards General Provisions
xxvii. Chapter 20.122: Building Elements
xxviii. Chapter 20.124: Development Standards – Parking and Circulation
xxix. Chapter 20.127: Design Standards
xxx. Chapter 20.128: Landscaping
xxxi. Chapter 20.129: Significant Trees
xxxii. Chapter 20.139: Residential Design Standards
xxxiii. Chapter 20.162: Critical Areas Regulations
xxxiv. 20.164 Shoreline Master Program
xxxv. Chapter 20.182: Impact Fees
(c) A development agreement shall not modify any provision of the Port Orchard
Municipal Code that is not identified in subsection (b) of this section.
(d) A development agreement may modify the provisions of the Port Orchard
Municipal Code only if the City Council determines that the requested modifications are
necessary to provide flexibility to achieve public benefits and provide superior outcomes than
those that would result from strict compliance with the other applicable development standards.
(e) Any approved development standards that differ from those other applicable
development standards shall not require any further zoning reclassification, variance from City
standards or other City approval apart from development agreement approval.
(f) Subsequently adopted standards which differ from those in the development
agreement shall apply to the subject site where necessary to address a serious threat to public
health and safety or where the development agreement specifies a time period or phase after
which certain identified standards may be modified. Building permit applications shall be subject
to the building and construction codes in effect when the building permit application is deemed
complete.
(2) Decision Type. Development agreements are a Type V action and shall be reviewed and
approved pursuant to the procedures in Chapter 20.22 POMC and this chapter, except that if the
development agreement is consolidated with a new or pending Type I, II, III or IV project permit
application as defined in RCW 36.70B.020, the City Council’s decision to approve, deny, or modify
the development agreement may be appealed pursuant to chapter 36.70C RCW.
(3) Effect. Development agreements are not project permit applications and are not subject to
the permit processing procedures in Chapter 36.70B RCW or Chapter 20.24 POMC. A
development agreement shall constitute a binding contract between the city and the property
owner and the subsequent owners of any later-acquired interests in the property identified in
the development agreement. A development agreement governs the project identified in the
development agreement during the term of the development agreement, or for all or that part
of the build-out period specified in the development agreement, and may not be subject to an
amendment to a zoning ordinance or development standard adopted after the effective date of
the agreement, except as set forth in this chapter. A permit or approval issued/granted by the
city after execution of a valid development agreement must be consistent with the development
agreement.
Ordinance No. 030-20
Page 8 of 13
(34)Limitations.
(a) A development agreement shall be limited to a 20-year term if any provision of the
agreement requires the city to:
(i) Refrain from exercising any authority that it would have otherwise been able to
exercise in the absence of the development agreement;
(ii) Defer application to the subject property of any newly adopted development
regulations that would otherwise apply to the property identified in the
agreement; or
(iii) Allow vesting beyond the applicable deadlines for a phased development.
(b) The development agreement shall also contain a proviso that the city may, without
incurring any liability, engage in action that would otherwise be a breach if the city makes
a determination on the record that the action is necessary to avoid a serious threat to
public health and safety, or if the action is required by federal or state law.
(c) The full costs of drafting and processing the development agreement shall be
reimbursed by the owner or applicant prior to final City Council action on the agreement
to the extent such costs exceed the initial application fee.
(45) Developer’s Compliance. The development agreement shall include a clause stating that the
city’s duties under the agreement are expressly conditioned upon the property owner’s
substantial compliance with each and every term, condition, provision and/or covenant in the
development agreement, all applicable federal, state, and local laws and regulations and the
property owner’s obligations as identified in any approval or project permit for the property
identified in the development agreement.
(56) No Third Party Rights. Except as otherwise provided in the development agreement, the
development agreement shall create no rights enforceable by any party who/which is not a party
to the development agreement.
(67) Liability. The development agreement shall include a clause providing that any breach of the
development agreement by the city shall give right only to damages under state contract law and
shall not give rise to any liability under Chapter 64.40 RCW, the Fifth and Fourteenth
Amendments to the U.S. Constitution, or similar state constitutional provisions.
(78) Termination, and Modification and Extension. Every development agreement shall have an
identified, specific termination date. Upon termination, any further development of the property
shall conform to the development regulations applicable to the property at the time of permit
Ordinance No. 030-20
Page 9 of 13
application. The city shall not modify any development agreement by extending the termination
date unless the City Council makes legislative findings that the additional benefits to the City
provided by the Developer in exchange for such extension of the development agreement
outweigh the impacts from the development authorized by the extension. In no case shall an
extension include the extension of provisions that are inconsistent with State or Federal law at
the time of such extension. Any request for a modification shall be consistent with the city’s
development regulations applicable to the property at the time of the request, not the original
execution date of the development agreement. Any extensions granted shall be for no more than
a length of ten (10) years. No more than two (2) extensions of up to ten (10) years shall be
granted. Extensions may not be granted unless an application for an extension is made no later
than one hundred and eighty (180) days prior to the termination date in the development
agreement or prior to the termination of any extension of a development agreement.
20.26.030 Application requirements.
Any owner of real property may, personally or through an agent, apply complete application for
a development agreement shall consist of by filing with the department of community
development the following:
(1) Name, address, telephone number and email address (if any) of the property owner.
If the applicant is not the property owner, the applicant must submit a verified statement
from the property owner that the applicant has the property owner’s permission to
submit the application;
(2) Address, parcel number and legal description of the property proposed to be subject
to the development agreement;
(3) Recent title report confirming that the property identified in the application is owned
by the applicant/property owner;
(4) Identification of any application (project permit application, comprehensive plan
amendment application, development regulation amendment application) that is related
to the proposed development agreement;
(5) SEPA checklist, if applicable;
(6) Two sets of stamped envelopes, and a list of the same, labeled with the name and
address of all current owners of real property, as shown in the records of the county
assessor for the subject property, within 300 feet of each boundary of the subject
property;
(7) A copy of the county assessor’s map identifying the properties specified in the
preceding subsection;
Ordinance No. 030-20
Page 10 of 13
(86) A completed application form and the application fee established by the city for this
purpose; and
(97) Any other information requested by the community development director relevant
to the processing of the development agreement.
20.26.040 Phasing.
(1) In order to phase a project to extend the vested rights associated with an underlying project
permit application, a development agreement is required. This ensures the availability of public
facilities and services to all of the property in the identified individual phases, allows tracking of
the available capacity of public facilities and utilities during each phase of construction, and with
the extension of the vested rights associated with the project, provides certainty to the developer
in the subsequent development approval process.
(2) The deadlines in the city’s code relating to each type of project permit application must be
consulted to establish the baseline vesting period. The city is not required to extend the vesting
period. If the city decides to do so through a development agreement, it must be in exchange for
the property owner’s provision of corresponding benefits to the city in the form of, for example,
contributions to public facilities and amenities over and above what would normally be required.
In any event, the city shall not allow vesting to extend beyond the established 20-year period
after approval of the project permit application unless the development agreement is extended
in accordance with POMC 20.25.020(8).
(3) A development agreement for a phased development (such as a subdivision) shall include (in
addition to all of the information in POMC 20.26.030), all of the following:
(a) Identification of the phasing schedule;
(b) Identification of the number of phases and all lots included in each phase;
(c) Identification of the approximate dates for construction of public streets, public
utilities and other improvements in each phase;
(d) Identification of the approximate dates for commencement of development of each
lot, lot sales and building occupancy;
(e) Identification of the benefits that the property owner will provide to the city in
exchange for permission to phase the development according to the proposed schedule;
(f) Establishment of the deadline for the property owner to submit development
applications, including building permit applications, for each phase;
Ordinance No. 030-20
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(g) A description of the manner in which each phase is designed such that all site
requirements are satisfied independently of phases yet to be given final approval and
constructed;
(h) A description of the manner in which the property owner will ensure that adequate
public facilities are available when the impact of development occurs. The property owner
shall acknowledge in the development agreement that if the demand for public facilities
or services needed to accommodate a subsequent development phase increases
following the issuance of a development permit for a prior phase in the approval process,
or if public facilities or services included in a concurrency or SEPA determination are not
constructed as scheduled in the city’s capital facilities plan, final development approval
may have to be delayed for future phases pending the achievement of the adopted levels
of service.
20.26.050 Processing procedures and appeals.
(1) Development agreements are not “project permit applications” as defined in RCW
36.70B.020(4). Therefore, there is no deadline for processing a development agreement.
(2) A development agreement must may be submitted for review in conjunction with a at least
one land use and development permit for the underlying project. The development agreement
application may be consolidated for processing with the underlying project permit application or
other application for approval. Any development plan accompanying the development
agreement shall be subject to the applicable project permit/approval application process set out
in Title 20 of this code. The application shall not be deemed complete until a draft development
agreement has been prepared and a development proposal conforming to the parameters of the
development agreement and meeting all pertinent requirements has been submitted. If the
development agreement is consolidated with a project permit application, the property owner
must agree to waive the deadline in RCW 36.70B.080 and POMC 20.24.100 for issuance of a final
decision on the underlying application, as well as the prohibition of no more than one open
record hearing and one closed record hearing on the underlying project permit application in
RCW 36.70B.060(3).
(32) Public Notice and Public Hearing.
(a) Notice of the public hearing shall be provided pursuant to POMC 20.22.070.
(b) If the owner of the real property which is the subject of the development agreement
owns another parcel or parcels of real property which lie adjacent to the real property
included in the development agreement, notice under this subsection shall be given to
owners of real property located within 300 feet of any portion of the boundaries of such
Ordinance No. 030-20
Page 12 of 13
adjacently located parcels of real property owned by the owner of the real property
included in the development agreement.
(c) The hearing on the development agreement shall be held pursuant to POMC
20.22.070, except that when the Development Agreement is processed as a legislative
matter (i.e. not consolidated with a project permit), the City Council shall conduct the
hearing itself and forgo a hearing and recommendation by the Planning Commission. Any
requests associated with the project-specific development proposal requiring a public
hearing by the hearing examiner shall be heard by the hearing examiner prior to City
Council action on the development agreement. While the director or hearing examiner
may provide a recommendation on a development agreement (even if the director or
hearing examiner makes the final decision on the underlying project permit application),
the city council shall make the final decision whether to approve a development
agreement by ordinance after the public hearing.
(d) Modifications to a development agreement shall be in writing, signed by the duly
authorized representatives of the parties, be consistent with this chapter and, where
considered substantive as determined by the director, follow the same procedures set
forth in this chapter.
(34) Appeal. A development agreement associated with an underlying project permit application
may be appealed in the same manner and within the same deadline as the underlying project
permit application. A development agreement associated with a legislative approval, such as a
comprehensive plan amendment, may be appealed in the same manner and within the same
deadline as the legislative approval. A modification of a development agreement pursuant to
20.26.020(8) that is consolidated with a new or pending Type I, II, III, or IV project permit
application may be appealed pursuant to Chapter 36.70C RCW.
(45) Recording Against the Property. The city shall record the development agreement against
the property with the real property records of the Kitsap County auditor. During the term of the
agreement, it is binding upon the owners of the property and any successors in interest to such
property.
20.26.060 Discretionary legislative action.
The decision of the city council to approve or reject a request for a new development agreement,
a modification to an existing development agreement, or grant an extension of an existing
development agreement shall be a discretionary, legislative act and an exercise of the city's police
power and contract authority.
20.26.070 Unauthorized fees prohibited.
Ordinance No.030-20
Page 13 of 13
tlothine in this Cha
or OeUications or t
expresslv autnorl
SECTION 3. Corrections. U pon the approval of the city attorney, the city clerk and/or
code publisher is authorized to make any necessary technical corrections to this ordinance,
including but not limited to the correction of scrivener's/clerical errors, references, ordinance
numbering, section/subsection numbers, and any reference thereto.
SECTION 4. Severabil ity. lf any section, subsection, paragraph, sentence, clause, or
phrase of this ordinance is declared unconstitutional or invalid for any reason, such decision shall
not affect the validity of the remaining parts of this ordinance.
SECTION 5. Effective Date. This ordinance shall be published in the official newspaper of
the city and shall take full force and effect five (5) days after the date of publication. A summary
of this ordinance in the form of the ordinance title may be published in lieu of publishing the
ordinance in its entirety.
PASSED by the City Council of the City of Port Orchard, APPROVED by the Mayor and
attested by the City Clerk in authentication of such passage this L3th day of October 2020.
Robert Putaan u, Mayor
ATTEST
Brandy nearson, MMC, City Clerk
APPROVED AS TO FORM SPONSORED BY:
Charlotte A. Archer, City Attorney Scott Diener, Councilmember
PUBLISHED: OCTOBER L6, 2020
EFFECTIVE DATE: OCTOBER 2L,20 o
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