HomeMy WebLinkAbout02-20-2024 AgendaCity Council Meeting
February 20, 2024 - 7:00 P M
City Hall Council Chambers
A GE NDA
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I .C AL L T O O RD E R
I I .L AND AC K NO WL E D G M E NT
We would like to acknowledge the Federally Recognized Muckleshoot I ndian Tribe, the
ancestral keepers of the land we are gathered on today. We thank them for their
immense contributions to our state and local history, culture, economy, and identity as
Washingtonians.
I I I .P UB L I C PART I C IPAT IO N
1.Public Participation
T he Auburn City Council Meeting scheduled for Tuesday February 20, 2024 at
7:00 p.m. will be held in person and virtually.
Virtual P articipation L ink:
To view the meeting virtually please click the below link, or call into the meeting at
the phone number listed below. The link to the Virtual Meeting is:
https://www.youtube.com/user/watchauburn/live/?nomobile=1
To listen to the meeting by phone or Z oom, please call the below number or click
the link:
Telephone: 253 205 0468
Toll Free: 888 475 4499
Z oom: https://us06web.zoom.us/j/88071752192
A .P ledge of Allegiance
I V.Roll Call
V.AP P O I NT M E NT S
A .J unior City Council
City Council to approve the appointment of Nnamdi Ometu to Auburn J unior City
Council for a two year term expiring A ugust 31, 2026
Page 1 of 87
(RE C O M M E ND E D AC T I O N: M ove to approve the appointment of Nnamdi
Ometu to Auburn J unior City Council, for a two year term to expire August 31,
2026.)
V I .ANNO UNC E M E NT S, M AY O R'S P RO C L AM AT IO NS, AND P RE S E NTAT I O NS
V I I .AG E ND A M O D I F IC AT I O NS
V I I I .C IT IZE N I NP UT, P UB L I C HE ARI NG S AND C O RRE S P O ND E NC E
A .P ublic Hearings
1.Public Hearing for Right-of-Way Vacation No. VA C23-
0001
City Council to conduct a P ublic Hearing to consider Right-of-Way Vacation No.
VA C23-0001
B .Audience Participation
This is the place on the agenda where the public is invited to speak to the City
Council on any issue.
1.T he public can participate in-person or submit written
comments in advance.
Participants can submit written comments via mail, fax, or email. All written comments
must be received prior to 5:00 p.m. on the day of the scheduled meeting and must be
350 words or less.
Please mail written comments to:
City of A uburn
Attn: Shawn Campbell, City Clerk
25 W Main S t
Auburn, WA 98001
Please fax written comments to:
Attn: Shawn Campbell, City Clerk
F ax number: 253-804-3116
Email written comments to:
publiccomment@auburnwa.gov
I f an individual requires an accommodation to allow for remote oral comment
because of a difficulty attending a meeting of the governing body, the City
requests notice of the need for accommodation by 5:00 p.m. on the day of the
scheduled meeting. Participants can request an accommodation to be able to
provide remote oral comment by contacting the City Clerk’s Office in person, by
phone (253) 931-3039, or email to publiccomment@auburnwa.gov
C.Correspondence - (T here is no correspondence for Council review.)
Page 2 of 87
I X.C O UNC I L AD HO C C O M M IT T E E RE P O RT S
Council Ad Hoc Committee Chairs may report on the status of their ad hoc Council
Committees' progress on assigned tasks and may give their recommendation to the
City Council, if any.
1.F inance Ad Hoc Committee (Chair B aldwin)
X .C O NS E NT AG E ND A
All matters listed on the Consent Agenda are considered by the City Council to be
routine and will be enacted by one motion in the form listed.
A .Minutes of the February 5, 2024, S pecial City Council Meeting
B .Minutes of the February 5, 2024, Regular City Council Meeting
C.Claims Vouchers (Thomas)
Claims voucher list dated F ebruary 14, 2024 which includes voucher number 474965
through 475096, in the amount of $4,057,471.52 and four wire transfers in the amount
of $809,422.62
D.P ayroll Voucher (T homas)
P ayroll check numbers 539565 through 539568 in the amount of $81,607.62,
electronic deposit transmissions in the amount of $2,744,877.81, for a grand total of
$2,826,485.43 for the period covering F ebruary 1, 2024 to F ebruary 14, 2024
(RE C O M M E ND E D AC T I O N: M ove to approve the Consent Agenda.)
X I .UNF INIS HE D B US I NE S S
X I I .NE W B US I NE S S
X I I I .O RD INANC E S
A .Ordinance No. 6927 (T homas)
A n Ordinance establishing the L ocal S ales and Use Tax Rate for L ocal Revitalization
Financing for 2024
(RE C O M M E ND E D AC T I O N: M ove to approve Ordinance No. 6927)
B .Ordinance No. 6929 (Gaub)
A n Ordinance vacating City Right-of-Way located within a portion of 108th Avenue S E
that lies South of L ea Hill Road within the City of A uburn
(RE C O M M E ND E D AC T I O N: M ove to approve Ordinance No. 6929.)
C.Ordinance No. 6930 (T homas)
A n Ordinance amending Auburn City Code (A C C) Chapters 3.53, 3.54 and 3.62
related to the administration of City taxes
(RE C O M M E ND E D AC T I O N: M ove to approve Ordinance No. 6930)
Page 3 of 87
D.Ordinance No. 6932 (Gaub)
A n Ordinance transferring a City Telecommunications Franchise from Sprint
Communications Company, L .P. (as a T-Mobile S ubsidiary) to Sprint Communications
Company, L .P. (as a Cogent Subsidiary)
(RE C O M M E ND E D AC T I O N: M ove to approve Ordinance No. 6932.)
X I V.M AY O R AND C O UNC I L M E M B E R RE P O RT S
At this time the Mayor and City Council may report on significant items associated with
their appointed positions on federal, state, regional and local organizations.
A .From the Council
B .From the M ayor
X V.AD J O URNM E NT
Agendas and minutes are available to the public at the City Clerk's Office, on the City website
(http://www.auburnwa.gov), and via e-mail. Complete agenda packets are available for review
at the City Clerk's Office.
Page 4 of 87
AGENDA BILL APPROVAL FORM
Agenda Subject:
Public Hearing for Right-of-Way Vacation No. VAC23-0001
Date:
January 4, 2024
Department:
Public Works
Attachments:
No Attachments Av ailable
Budget Impact:
Current Budget: $0
Proposed Revision: $0
Revised Budget: $0
Administrativ e Recommendation:
City Council to hold a Public Hearing in consideration of Right-of-Way Vacation No. VAC 23-
0001. See Ordinance No. 6929 for further action on this item.
Background for Motion:
Background Summary:
Per Auburn City Code Chapter 12.48 a Public Hearing shall be held to consider the proposed
Right-of-Way Vacation for VAC23-0001 for right-of-way located within a portion of 108th
Avenue SE that lies south of Lea Hill Road.
The date of the Public Hearing was set by Resolution No. 5749 on January 16, 2024.
Rev iewed by Council Committees:
Councilmember:Tracy Taylor Staff:Ingrid Gaub
Meeting Date:February 20, 2024 Item Number:PH.1
Page 5 of 87
AGENDA BILL APPROVAL FORM
Agenda Subject:
Minutes of the February 5, 2024, Special City Council Meeting
Date:
February 12, 2024
Department:
City Council
Attachments:
02-05-2024 Special City Council Minutes
Budget Impact:
Current Budget: $0
Proposed Revision: $0
Revised Budget: $0
Administrativ e Recommendation:
Background for Motion:
Background Summary:
Rev iewed by Council Committees:
Councilmember:Staff:
Meeting Date:February 20, 2024 Item Number:CA.A
Page 6 of 87
Special City Council Meeting
February 5, 2024 - 6:00 P M
City Hall Council Chambers
MINUT E S
I .C AL L T O O RD E R
Mayor Nancy Backus called the meeting to order at 6:00 p.m. in the
Council Chambers of A uburn City Hall, 25 West Main S treet.
I I .L AND AC K NO WL E D G E M E NT
I I I .P UB L I C PART I C IPAT IO N
1.Public Participation
The City Council Meeting was held in person and virtually.
A .P ledge of Allegiance
Mayor Backus led those in attendance in the Pledge of Allegiance.
I V.RO L L C AL L
Councilmembers present: Deputy Mayor L arry Brown, Hanan Amer, Kate
B aldwin, Cheryl Rakes, Clinton Taylor, Tracy Taylor, and Yolonda Trout-
Manuel.
Mayor Nancy Backus and the following staff members present included:
A cting City A ttorney Harry B oesche, Chief of P olice Mark Caillier, Director
of P ublic Works I ngrid Gaub, Director of P arks, A rts, and Recreation Daryl
Faber, Arts and Events Manager J ulie Krueger, Director of E quity, and
I nclusion Brenda Goodson-Moore, Director of Human Resources and
Risk Management Candis Martinson, A ssistant Director of Community
Development J ason K rum, B usiness S ystems Analyst J onathan B arbano,
Deputy City Clerk Rebecca Wood-Pollock, and City Clerk S hawn
Campbell.
V.D IS C US S I O N IT E M S
A .Department Overview - P arks, A rts, and Recreation (F aber)
(30 Minutes)
Director F aber and Manager K rueger provided Council with a presentation
on the Parks, Arts, and Recreation Department including the organizational
structure, their role in the community, the 2022 General Fund expenditures,
funding structure, and the different divisions of the Department. T hey
Page 1 of 2Page 7 of 87
discussed community events and classes, the Postmark Center for the
A rts, recreation programs and facility rentals, the Rec Teen Center, the
S enior A ctivity Center and senior resources, the W hite River Valley
Museum and Mary Olson Farm, the Auburn Golf Course, P ark
Maintenance, new and future projects, Mountain View Cemetery, advisory
boards, and volunteer opportunities.
Council discussed class and activity fees, free activities offered, the
A uburn Avenue Theater, the S enior Center volunteer lunch, the bike
program, special needs accommodations, Gaines Park, Forest Villa Tot
L ot, a bike bus program, community bike rides, and dog parks.
B .Department Overview - P ublic Works (Gaub) (30 Minutes)
Director Gaub provided Council with a presentation of the Public Works
Department including a video which shared an overview of the Department,
A irport services, Engineering services and its sub-divisions, Maintenance
and Operations services, the infrastructure management cycle, budgeted
expenditures, revenue sources, the design and construction process, the
maintenance and operations process, and Council interaction.
Council discussed the water treatment facilities tours, and equipment
rentals.
V I .AD J O URNM E NT
There being no further business to come before the Council, the
meeting was adjourned at 7:06 p.m.
A P P R O V E D this 20th day of February, 2024.
____________________________ ____________________________
NA NC Y B A C K US, MAYO R Rebecca Wood-Pollock,
Deputy City Clerk
Agendas and minutes are available to the public at the City Clerk's Office, on the City website
(http://www.auburnwa.gov), and via e-mail. Complete agenda packets are available for review
at the City Clerk's Office.
Page 2 of 2Page 8 of 87
AGENDA BILL APPROVAL FORM
Agenda Subject:
Minutes of the February 5, 2024, Regular City Council Meeting
Date:
February 12, 2024
Department:
City Council
Attachments:
02-05-2024 Regular City Council Minutes
Budget Impact:
Current Budget: $0
Proposed Revision: $0
Revised Budget: $0
Administrativ e Recommendation:
Background for Motion:
Background Summary:
Rev iewed by Council Committees:
Councilmember:Staff:
Meeting Date:February 20, 2024 Item Number:CA.B
Page 9 of 87
City Council Meeting
February 5, 2024 - 7:00 P M
City Hall Council Chambers
MINUT E S
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Watch the meeting video
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hours after the meeting has concluded.
I .C AL L T O O RD E R
Mayor Backus called the meeting to order at 7:08 p.m. in the Council
Chambers of Auburn City Hall, 25 West Main Street.
I I .L AND AC K NO WL E D G M E NT
I I I .P UB L I C PART I C IPAT IO N
1.Public Participation
The City Council Meeting was held in person and virtually.
A .P ledge of Allegiance
Mayor Backus led those in attendance in the Pledge of Allegiance.
I V.Roll Call
Councilmembers present: Deputy Mayor L arry Brown, Hanan Amer, Kate
B aldwin, Cheryl Rakes, Clinton Taylor, Tracy Taylor, and Yolonda Trout-
Manuel.
Mayor Nancy Backus and the following staff members present included:
A cting City A ttorney Harry B oesche, Chief of P olice Mark Caillier, Director
of P ublic Works I ngrid Gaub, Director of P arks, A rts, and Recreation Daryl
Faber, Arts and Events Manager J ulie Krueger, Director of E quity and
I nclusion Brenda Goodson-Moore, Human Resources Director Candis
Martinson, Assistant Director of Community Development J ason
K rum, B usiness S ystems Analyst J onathan B arbano, Deputy City Clerk
Rebecca Wood-Pollock, and City Clerk S hawn Campbell.
V.AP P O I NT M E NT S
A .J unior City Council
City Council to approve the appointment of Mikaela Pedraja to A uburn J unior City
Council for a two year term expiring A ugust 31, 2026
Deputy Mayor Brown moved and Councilmember Trout-Manuel seconded
to approve the appointment of Mikaela P edraja to the A uburn J unior City
Page 1 of 5Page 10 of 87
Council for a two year term expiring A ugust 31, 2026.
MO T I O N C A R R I E D UNA NI MO US LY. 7-0
V I .ANNO UNC E M E NT S, M AY O R'S P RO C L AM AT IO NS, AND P RE S E NTAT I O NS
A .B lack History Month
Mayor Backus proclaimed February 2024 as "B lack History Month" in the
City of Auburn.
Director of Equity and I nclusion Goodson-Moore thanked the Mayor and
Council for their support.
V I I .AG E ND A M O D I F IC AT I O NS
There were no modifications to the agenda.
V I I I .C IT IZE N I NP UT, P UB L I C HE ARI NG S AND C O RRE S P O ND E NC E
A .Audience Participation
This is the place on the agenda where the public is invited to speak to the City
Council on any issue.
1.T he public can participate in-person or submit written
comments in advance.
No one came forward to speak.
B .Correspondence
There was no correspondence for Council to review.
I X.C O UNC I L AD HO C C O M M IT T E E RE P O RT S
Council Ad Hoc Committee Chairs may report on the status of their ad hoc Council
Committees' progress on assigned tasks and may give their recommendation to the
City Council, if any.
1.F inance Ad Hoc Committee (Chair B aldwin)
Councilmember B aldwin, Chair of the F inance Ad Hoc Committee,
reported she and Councilmember A mer have reviewed the claims
and payroll vouchers described on the agenda this evening and
recommended their approval.
X .C O NS E NT AG E ND A
All matters listed on the Consent Agenda are considered by the City Council to be
routine and will be enacted by one motion in the form listed.
A .Minutes of the J anuary 16, 2024, and J anuary 24, 2024,
Page 2 of 5Page 11 of 87
S pecial City Council Meetings
B .Minutes of the J anuary 16, 2024, Regular City Council Meeting
C.Minutes of the J anuary 22, 2024, Study Session Meeting
D.Claims Vouchers (Thomas)
Claims voucher list dated J anuary 31, 2024 which includes voucher number 474733
and voucher 474736 through voucher 474874, in the amount of $2,848,503.88, and
five wire transfers in the amount of $336,743.99
Claims voucher list dated J anuary 31, 2024 which includes voucher number 474732,
voucher number 474734 through 474735 and voucher 474875 through voucher
474964, in the amount of $3,914,604.91, and two wire transfers in the amount of
$4,220,590.30
E .P ayroll Voucher (T homas)
P ayroll check numbers 539563 through 539564 in the amount of $645,117.14,
electronic deposit transmissions in the amount of $2,563,916.11, for a grand total of
$3,209,033.25 for the period covering J anuary 11, 2024 to J anuary 31, 2024
Deputy Mayor Brown moved and Councilmember A mer seconded to
approve the consent agenda.
Councilmember C. Taylor requested that the claims vouchers be removed
from the Consent Agenda for separate consideration.
MO T I O N C A R R I E D UNA NI MO US LY. 7-0
X I .UNF INIS HE D B US I NE S S
Claims voucher list dated J anuary 31, 2024 which includes voucher
number 474733 and voucher 474736 through voucher 474874, in the
amount of $2,848,503.88, and five wire transfers in the amount of
$336,743.99
Claims voucher list dated J anuary 31, 2024 which includes voucher
number 474732, voucher number 474734 through 474735 and voucher
474875 through voucher 474964, in the amount of $3,914,604.91, and two
wire transfers in the amount of $4,220,590.30
Council to vote on the approval of I tem D on the consent agenda.
MO T I O N C A R R I E D UNA NI MO US LY. 6-0. Councilmember C. Taylor
abstained.
X I I .NE W B US I NE S S
There was no new business.
Page 3 of 5Page 12 of 87
X I I I .O RD INANC E S
A .Ordinance No. 6931 (Gaub)
A n Ordinance providing for the acquisition by E minent Domain of P roperty located
near or adjacent to A uburn Way South within the City of Auburn, Washington, for
Roadway W idening I mprovements for P roject No. C P 1622, Auburn Way S outh
W idening – Hemlock S treet S E to Poplar S treet S E; declaring public use and
necessity; and providing for severability and an effective date
Councilmember T. Taylor moved and Councilmember Trout-Manuel
seconded to approve Ordinance No. 6931.
MO T I O N C A R R I E D UNA NI MO US LY. 7-0
X I V.RE S O L UT IO NS
A .Resolution No. 5756 (Gaub)
A Resolution authorizing the Mayor to execute and administer an agreement accepting
a grant from the Washington S tate Department of Ecology for I mplementation of
Requirements of the National Pollutant Discharge Elimination S ystem Municipal
S tormwater P hase I I Permit
Councilmember T. Taylor moved and Councilmember B aldwin seconded
to adopt Resolution No. 5756.
MO T I O N C A R R I E D UNA NI MO US LY. 7-0
B .Resolution No. 5757 (Thomas)
A Resolution authorizing the Mayor to execute an agreement between the City of
A uburn and the Department of E cology to implement the 2023-2025 L ocal Solid
Waste Financial Assistance Grant P rogram and to accept and expend program grant
funds
Councilmember B aldwin moved and Councilmember Amer seconded to
adopt Resolution No. 5757.
MO T I O N C A R R I E D UNA NI MO US LY. 7-0
C.Resolution No. 5758 (Caillier)
A Resolution accepting a grant award from the Washington Association of Sheriffs and
P olice Chiefs for B ody Worn Cameras
Councilmember C. Taylor moved and Councilmember Amer seconded to
adopt Resolution No. 5758.
MO T I O N C A R R I E D UNA NI MO US LY. 7-0
X V.M AY O R AND C O UNC I L M E M B E R RE P O RT S
At this time the Mayor and City Council may report on significant items associated with
their appointed positions on federal, state, regional and local organizations.
Page 4 of 5Page 13 of 87
A .From the Council
Deputy Mayor Brown provided an overview of the J unior City Council.
Councilmember Amer reported she attended the I nclusive Auburn event,
Don's Place opening, and a S pecial Olympics event in Auburn.
Councilmember B aldwin reported she attended the Cities and S chools
meeting, R E D I Coalition meeting, A uburn S ymphonies, Don's Place
opening, and the I nclusive A uburn E vent.
Councilmember Rakes reported she attended the King County
Department of Health meeting, and Don's Place opening.
Councilmember T. Taylor reported she attended the opening of the
Muckleshoot exhibit at the P ostmark Center for the Arts, and the Seattle
A nimal Shelter meeting.
Councilmember Trout-Manuel reported she attended the Best S tarts for
K ids meeting, and the Pierce County Committee of Domestic Violence
meeting.
B .From the M ayor
Mayor Backus reported she attended the I nclusive Auburn event, the U.S.
Conference of Mayors, encouraged public participation in the City's new
Opioid Task F orce, attended the Consul General of I ndia welcome event,
and testified on S enate B ill 6076.
X V I .AD J O URNM E NT
There being no further business to come before the Council, the
meeting was adjourned at 7:42 p.m.
A P P R O V E D this 20th day of February, 2024.
____________________________ __________________________
NA NC Y B A C K US, MAYO R Rebecca Wood-Pollock,
Deputy City Clerk
Agendas and minutes are available to the public at the City Clerk's Office, on the City website
(http://www.auburnwa.gov), and via e-mail. Complete agenda packets are available for review
at the City Clerk's Office.
Page 5 of 5Page 14 of 87
AGENDA BILL APPROVAL FORM
Agenda Subject:
Claims Vouchers (Thomas)
Date:
January 31, 2024
Department:
Finance
Attachments:
No Attachments Av ailable
Budget Impact:
Current Budget: $0
Proposed Revision: $0
Revised Budget: $0
Administrativ e Recommendation:
Approve Claim Vouchers.
Background for Motion:
Background Summary:
Claims voucher list dated February 14, 2024 which includes voucher number 474965 through
475096, in the amount of $4,057,471.52 and four wire transfers in the amount of
$809,422.62.
Rev iewed by Council Committees:
Councilmember:Kate Baldwin Staff:Jamie Thomas
Meeting Date:February 20, 2024 Item Number:CA.C
Page 15 of 87
AGENDA BILL APPROVAL FORM
Agenda Subject:
Payroll Voucher (Thomas)
Date:
January 31, 2024
Department:
Finance
Attachments:
No Attachments Av ailable
Budget Impact:
Current Budget: $0
Proposed Revision: $0
Revised Budget: $0
Administrativ e Recommendation:
Approve Payroll Vouchers.
Background for Motion:
Background Summary:
Payroll check numbers 539565 through 539568 in the amount of $81,607.62, electronic
deposit transmissions in the amount of $2,744,877.81, for a grand total of $2,826,485.43 for
the period covering February 1, 2024 to February 14, 2024.
Rev iewed by Council Committees:
Councilmember:Kate Baldwin Staff:Thomas
Meeting Date:February 20, 2024 Item Number:CA.D
Page 16 of 87
AGENDA BILL APPROVAL FORM
Agenda Subject:
Ordinance No. 6927 (Thomas)
Date:
February 8, 2024
Department:
Finance
Attachments:
Ordinance No. 6927
Budget Impact:
Current Budget: $0
Proposed Revision: $0
Revised Budget: $0
Administrativ e Recommendation:
City Council to approve Ordinance No. 6927.
Background for Motion:
Ordinance No. 6927 levies 0.0133%, up to $250,000, against the State's portion of sales tax to
help pay the debt service on Local Revitalization Financing Bonds issued by the City in 2010 and
refunded in 2020.
Background Summary:
Ordinance No. 6927 levies a 0.0133% sales tax credit against the State Sales Tax for Local
Revitalization Financing. SB 5045, authorizing the tax credit, was passed by the State
Legislature during the 2009 Regular Session. The intent of the Legislation was to provide
financial assistance to cities to assist with financing public improvements in an identified
revitalization area to promote Community and Economic Development.
The City first applied for the use of Local Revitalization Financing on August 11, 2009 and the
Department of Revenue approved the City’s application on September 16, 2009, authorizing
up to $250,000 per year for the local revitalization program (Promenade Capital
Improvements).
In 2010, the City issued $7.24 million in 2010 C/D Bonds for the purpose of funding capital
improvements for the Promenade. In October 2020, the City refunded the remaining portion
of these bonds by issuing the 2020B LTGO Bonds. The balance of the 2020B bonds at the
end of 2023 was $3.45 million. The sales tax collected from this levy are used to make debt
service payments.
The tax credit is available to the City for up to 25 years. 2024 will be the fifteenth year that the
City has asked the State for the tax credit. As provided by the state, in order for the City to
continue receiving the tax credit, the City must request this each year by Ordinance.
Based upon historical taxable retail sales, the above rate of 0.0133% is estimated to generate
$250,000 for Local Revitalization Funding during the State’s fiscal year, July 1, 2024, to June
30, 2025.
Page 17 of 87
Rev iewed by Council Committees:
Councilmember:Kate Baldwin Staff:Jamie Thomas
Meeting Date:February 20, 2024 Item Number:ORD.A
Page 18 of 87
------------------------------
Ordinance No. 6927
January 25, 2023
Page 1 of 2
ORDINANCE NO. 6927
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, ESTABLISHING
THE LOCAL SALES AND USE TAX RATE FOR
LOCAL REVITALIZATION FINANCING FOR 2024
WHEREAS, The City of Auburn (“City”) enacted Ordinance No. 6301 on
April 19, 2010, which established a local sales and use tax as provided for in RCW
82.14.510; and,
WHEREAS, this tax is imposed in order to pay the debt service on Local
Revitalization Financing bonds in accordance with Chapter 39.104 RCW; and,
WHEREAS, Chapter 39.104 RCW provides that the City shall, from time to
time, adjust the tax rate so that it is set at the rate reasonably necessary to receive
the state contribution over 10 months, in accordance with RCW 82.14.510(3); and
WHEREAS, the Local Sales and Use Tax Rate is set at a rate to generate
approximately $250,000 between July 1, 2024 through June 30, 2025, for Local
Revitalization Financing.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section 1. The sales and use tax rate initially established in Section 3.2
of Ordinance No. 6301, and most recently amended by Ordinance No. 6899, is
hereby amended to 0.0133%, effective July 1, 2024.
Section 2. Implementation. The Mayor is hereby authorized to
implement such administrative procedures as may be necessary to carry out the
directions of this legislation.
Page 19 of 87
Section 3. Severability. The provisions of this ordinance are declared
to be 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 this ordinance, or the validity of its application to other persons or circumstances.
Section 4. Effective date. This Ordinance will take effect and be in force
five days from and after its passage, approval, and publication as provided by law.
INTRODUCED:
PASSED: ________________________
APPROVED: _____________________
________________________________
NANCY BACKUS, MAYOR
ATTEST:
___________________________
Shawn Campbell, MMC, City Clerk
Published: _________________
------------------------------
Ordinance No. 6927
January 25, 2023
Page 2 of 2
APPROVED AS TO FORM:
__________________________
Harry Boesche, Acting City Attorney
Page 20 of 87
AGENDA BILL APPROVAL FORM
Agenda Subject:
Ordinance No. 6929 (Gaub)
Date:
January 5, 2024
Department:
Public Works
Attachments:
Ordinance No. 6929
Exhibit A
Exhibit B
Staff Report
Vicinity Map
Budget Impact:
Current Budget: $0
Proposed Revision: $0
Revised Budget: $0
Administrativ e Recommendation:
City Council to approve Ordinance No. 6929.
Background for Motion:
This Ordinance vacates right-of-way located within a portion of 108th Avenue SE that lies
south of Lea Hill Road, subject to conditions outlined in the Ordinance.
Background Summary:
Serhiy and Liliya Boyko have applied to the City for Vacation of Right-of-Way located within a
portion of 108th Ave SE that lies south of Lea Hill Road. The applicants own the adjacent
Parcel No. 0821059033 to the east and have applied for the vacation to resolve building
encroachment and maintenance issues that were created when the right-of-way was deeded
to King County for roadway purposes in 1976 prior to the Boyko’s ownership of the adjacent
property. The home that is currently encroaching into the east side of the right-of-way was
built in 1920.
The proposed vacation area became right-of-way in 1976 when it was deeded to King County
for roadway purposes with King County Short Plat No. 976023 under Warranty Deed
Recording No. 7612230657 on December 23, 1976. The area was annexed into the Auburn
City Limits on February 29, 2000.
The application has been reviewed by City staff and utility purveyors who have an interest in
the right-of-way. Through this review City staff has determined that the right-of-way is not
necessary to meet the needs of the City and could be vacated with conditions.
Ordinance No. 6929, if adopted by City Council approves Right-of-Way Vacation No. VAC23-
0001 and vacates the right-of-way subject to conditions outlined in the Ordinance.
Rev iewed by Council Committees:
Councilmember:Tracy Taylor Staff:Ingrid Gaub
Page 21 of 87
Meeting Date:February 20, 2024 Item Number:ORD.B
Page 22 of 87
--------------------------------
Ordinance No. 6929
December 13, 2023
Page 1 of 5
ORDINANCE NO. 6929
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, VACATING CITY RIGHT-OF-
WAY LOCATED WITHIN A PORTION OF 108TH AVENUE SE
THAT LIES SOUTH OF LEA HILL ROAD WITHIN THE CITY
OF AUBURN, WASHINGTON
WHEREAS, the City received a petition signed by at least two-thirds (2/3) of the
owners of property abutting unopened right-of-way located within a portion of 108th
Avenue SE that lies south of Lea Hill Road. The petition requested the City to vacate its
interest in this right-of-way; and,
WHEREAS, as required by RCW 35.79.010 and Chapter 12.48 of the Auburn City
Code, the City held a timely noticed public hearing in connection with the possible
vacation. The hearing took place at the Auburn City Council Chambers on February 20,
2024; and,
WHEREAS, the City Council has considered all matters presented at the Public
Hearing on the proposed vacation, and has determined that subject to the conditions set
forth in Section 1 of this Ordinance, vacation of this right-of-way is appropriate and in the
City’s best interests.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as a non-codified ordinance as follows:
Section 1. Vacation of City right-of-way. The right-of-way located within a
portion of 108th Avenue SE that lies south of Lea Hill Road, located within the City of
Auburn, Washington (legally described in attached Exhibit “A”, shown on the survey
depiction marked as attached Exhibit “B”, and subject to an easement for ingress and
egress and utilities under King County Recording Number 5662631) is vacated. The
Page 23 of 87
--------------------------------
Ordinance No. 6929
December 13, 2023
Page 2 of 5
property lying in this described right-of-way shall inure and belong to those persons
entitled to receive the property in accordance with RCW 35.79.040, conditioned upon the
following:
A. Reservation of a perpetual Nonexclusive Easement in favor of the City
(Easement) under, over, through, and upon the west ten (10) feet of the vacated right-of-
way (described in Exhibit “A” and depicted in Exhibit “B”) (Easement Area) for the purpose
of laying maintaining, and/or installing existing and future water utility facilities. This
Easement shall reserve a City right to grant further easements for utilities over, under,
and on all portions of the vacated right-of-way.
1. The City shall have the absolute right: (a) for immediate entry upon
said Easement Area at times as may be necessary for the purpose of
maintenance, inspection, construction, repair, or reconstruction of the above
facilities or improvements without incurring any legal oblication or liability; and (b)
to place any type of driving surface within the Easement Area deemed necessary
by the City.
2. The owners of the adjacent properties agree and shall not in any way
block, restrict, or impede access or egress to or from the Easement Area and/or in
any way block restrict, or impede the City’s full use of the real property within the
Easement Area for the aboce described purposes. No building, wall, rockery,
fence, trees, or structure of any kind shall be erected or planted, nor shall nor shall
any fill material be placed within the boundaries of said Easement Area, without
the express written consent of the City. Except as required or approved by the
City, no excavation shall be made within three feet of any improvements or facilities
Page 24 of 87
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Ordinance No. 6929
December 13, 2023
Page 3 of 5
within the Easement Area. The surface level of the ground within the Easement
Area shall be maintained at its current elevation.
3. This Easement shall be a covenant running with the property parcels
adjacent to the Easement Area. It shall burden that real estate, and it shall be
binding on the successors, heirs, and assigns of all parties.
B. In accordance with RCW 35.79.030 the City grants a private utility
easement to Puget Sound Energy over, under, through and upon the west ten (10) feet
of the vacated right-of-way (described in Exhibit “A” and depicted in Exhibit “B”)
(Easement Area) for the construction, operation, maintenance, repair, replacement,
improvement, and removal of electric distribution facilities. The owners of the adjacent
property shall not erect any structures and shall not place trees or other obstructions on
the easement that would interfere with the exercise of Grantee’s rights.
This easement shall be a covenant running with the property parcels adjacent to the
easement area. It shall burden that real estate, and it shall be binding on the successors,
heairs, and assigns of all parties.
C. In accordance with RCW 35.79.030 the City grants a private utility
easement to Comcast Cable Communitactions, LLC over, under, through and upon the
west ten (10) feet of the vacated right-of-way (described in Exhibit “A” and depicted in
Exhibit “B”) (Easement Area) for the construction, operation, maintenance, repair,
replacement, improvement, and removal of cable facilities. The owners of the adjacent
property shall not erect any structures and shall not place trees or other obstructions on
the easement that would interfere with the exercise of Grantee’s rights.
Page 25 of 87
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Ordinance No. 6929
December 13, 2023
Page 4 of 5
This easement shall be a covenant running with the property parcels adjacent to the
easement area. It shall burden that real estate, and it shall be binding on the successors,
heairs, and assigns of all parties.
D. Any reserved or granded utility and access easements referenced in
Paragraphs A, B, and C above may be modified to accommodate the removal, relocation,
and siting of affected utility lines and facilities by agreement between the Utility Owners
and the property owners on whose property the utility lines and facilities are located. Any
suc removal, relocation, or sitting must be paid for by the property owners, and must be
performed in accordance with applicable laws and standards.
Section 2. Constitutionality or Invalidity. If any portion of this Ordinance or
its application to any person or circumstances is held invalid, the remainder of the
Ordinance or the application of the provisions to other persons or circumstances shall not
be affected.
Section 3. Implementation. The Mayor is authorized to implement those
administrative procedures necessary to carry out the directives of this legislation.
Section 4. Effective Date. This Ordinance will take effect and be in force five
(5) days from and after its passage, approval, and publication as provided by law.
Page 26 of 87
--------------------------------
Ordinance No. 6929
December 13, 2023
Page 5 of 5
Section 5. Recording. The City Clerk is directed to record this Ordinance with
the King County Recorder, at which time the vacation outlined in this Ordinance shall be
effective under Auburn City Code 12.48.080.
INTRODUCED: _______________
PASSED: ____________________
APPROVED: _________________
____________________________
NANCY BACKUS, MAYOR
ATTEST:
____________________________
Shawn Campbell, MMC, City Clerk
APPROVED AS TO FORM:
____________________________
Harry Boesche, Acting City Attorney
Published: ________________________
Page 27 of 87
Page 28 of 87
Page 29 of 87
1 of 4
December 13, 2023
VAC23-0001 Staff Report
RIGHT-OF-WAY VACATION
STAFF REPORT
Right-of-Way (ROW) Vacation Number VAC23-0001
Applicant: Serhiy and Liliya Boyko
Property Location: Right-of-way located within a portion 108th Ave SE.
Description of right-of-way:
The ROW proposed for vacation is located within a portion of 108th Ave SE that lies
south of but does not connect to Lea Hill Road. The proposed ROW is adjacent to
Parcel No. 0821059033 on the east side, Parcel No. 0821059041 on the north side, and
is bordered by City right-of-way to the west and south. The total area of ROW proposed
for vacation is approximately 4,950± square feet.
The proposed ROW vacation area originally became ROW in 1976 when it was deeded
as a roadway with King County Short Plat No. 976023 under Warranty Deed Recording
No. 7612230657 on December 23, 1976. The area was annexed into Auburn city limits
on February 29, 2000.
See Exhibit “A” for legal description and Exhibit “B” for survey depiction.
Proposal:
The Applicant is proposing that the ROW be vacated so that the proposed vacation area
can be incorporated into their property and resolve encroachment and maintenance
issues that were created when the ROW was dedicated in 1976. The house located on
the property and encroaching into the east side of the ROW was built in 1920.
Applicable Policies & Regulations:
RCW’s applicable to this situation - meets requirements of RCW 35.79.
MUTCD standards - not affected by this proposal.
City Code or Ordinances - meets requirements of ACC 12.48.
Comprehensive Plan Policy - not affected.
City Zoning Code - not affected.
Public Benefit:
Page 30 of 87
2 of 4
December 4, 2023
VAC23-0001 Staff Report
Vacated Right-of-Way areas typically have a financial benefit to the general
public because the vacated areas are subject to property taxes
The street vacation decreases the Right-of-Way maintenance obligation of the
City.
Discussion:
The vacation application was circulated to Puget Sound Energy (PSE), Comcast,
CenturyLink/Lumen, Fatbeam, Zayo, and City staff.
1. Puget Sound Energy (PSE) – PSE has electrical facilities, including poles located
in close proximity to the west boundary of the proposed vacation area. An
easement of at least 10 feet in width is requested for maintenance and relocation
purposes if relocation or undergrounding is ever required in the future.
2. Comcast – Comcast has facilities located on PSE’s poles located in close
proximity to the west boundary of the proposed vacation area. An easement of
at least 10 feet in width is request for maintenance and relocation purposes if
relocation or undergrounding is ever required in the future.
3. CenturyLink/Lumen – CenturyLink/Lumen has no facilities or equipment in the
proposed vacation area and does not require an easement.
4. Fatbeam – Fatbeam has no facilities or equipment in the proposed vacation area
and does not required an easement.
5. Zayo – Zayo has no facilities in the proposed vacation area and does not require
and easement.
6. Engineering – All City facilities located in the proposed vacation area will require
easements to ensure that they are accessible to the City.
7. Transportation – Transportation has no concerns with proposed vacation.
Currently, there are no projects for a future road extension in the area of the
proposed vacation in the comprehensive transportation plan.
8. Planning – Planning has no concerns or comments on the proposed vacation.
9. Development Engineering - Access and utility easements are required through
the vacated right-of-way to serve the property(s) utilizing the northern part of the
vacation area. There is an existing easement in place under KC Recording No.
5662631 dated October 31, 1963 for access and utilities to the northern parcel
that was created prior to the ROW being dedicated as ROW. This easement
remains in place and will survive the vacation of the ROW.
10. Water – There is an existing 6" water main in 108th Ave SE. A 10 foot easement
for City water facilities and maintenance will be required to be reserved across
the west 10 feet of the proposed vacation area.
11. Sewer – There are no existing City sewer facilities in the proposed vacation area
and no easements are required.
12. Storm – There are no existing City storm facilities in the proposed vacation area
and no easements are required.
Page 31 of 87
3 of 4
December 4, 2023
VAC23-0001 Staff Report
13. Valley Regional Fire Authority – Review completed and the Fire Marshal had no
comments.
14. Solid Waste – No comments.
15. Police – Review completed by Auburn PD. The proposed vacation has no
impact on police operations.
16. M&O – No comments.
17. Construction Inspection – No comments.
18. Innovation and Technology – No comments
Assessed Value:
ACC 12.48 states: “The city council may require as a condition of the ordinance that the
city be compensated for the vacated right-of-way in an amount which does not exceed
one-half the value of the right-of-way so vacated, except in the event the subject
property or portions thereof were acquired at public expense or have been part of a
dedicated public right-of-way for 25 years or more, compensation may be required in an
amount equal to the full value of the right-of-way being vacated. The city engineer shall
estimate the value of the right-of-way to be vacated based on the assessed values of
comparable properties in the vicinity. If the value of the right-of-way is determined by
the city engineer to be greater than $2,000, the applicant will be required to provide the
city with an appraisal by an MAI appraiser approved by the city engineer, at the
expense of the applicant. The city reserves the right to have a second appraisal
performed at the city’s expense.”
RCW 35.79.030 states the vacation “shall not become effective until the owners of
property abutting upon the street or alley, or part thereof so vacated, shall compensate
such city or town in an amount which does not exceed one -half the appraised value of
the area so vacated. If the street or alley has been part of a dedicated public right-of-
way for twenty-five years or more, or if the subject property or portions thereof were
acquired at public expense, the city or town may require the owners of the property
abutting the street or alley to compensate the city o r town in an amount that does not
exceed the full appraised value of the area vacated ”.
An appraisal by an MAI appraiser of the subject right-of-way was required to be
submitted by the applicant. The appraisal was reviewed and found to be acceptable .
The appraisal values the right-of-way using an “Across the Fence” methodology which
values the subject right-of-way at $17,000.00. The right-of-way has been right-of-way
for more than 25 years and was provided through warranty deed associated with King
County Short Plat No. 976023 in 1976 and annexed into Auburn city limits in 2000.
Recommendation:
Staff recommends that the street vacation be granted subject to the following
conditions:
Page 32 of 87
4 of 4
December 4, 2023
VAC23-0001 Staff Report
1. An easement shall be reserved for existing and future City water facilities.
2. An easement shall be reserved for Puget Sound Energy electric facilities.
3. An easement shall be reserved for Comcast cable facilities.
4. The existing easement in place under KC Recording No. 5662631 dated October
31, 1963 for access and utilities to the northern parcel that was created prior to
the ROW being dedicated as ROW shall remain in place and will survive the
vacation of the ROW.
5. Staff recommends that compensation for the value of the right-of-way not be
required as it was initially deeded as right-of-way associated with development of
a short plat at no cost to the City.
Page 33 of 87
VAC23-0001 - 108th Ave SE Printed On: 12/5/2023
Map created by City of Auburn eGIS
Information shown is for general reference
purposes only and does not necessarily
represent exact geographic or cartographic
data as mapped. The City of Auburn makes no
warranty as to its accuracy.
1:22570200400
ft
WGS84 Web Mercator (Auxiliary Sphere)
Approximate location of
proposed Vacation Area
31410 108th Ave SE
PSE Power Poles in close proximity
to the proposed Vacation Area
Lea Hi
l
l
R
o
a
d
S
E
108th Avenue SESE 313
t
h
S
t
Page 34 of 87
AGENDA BILL APPROVAL FORM
Agenda Subject:
Ordinance No. 6930 (Thomas)
Date:
February 8, 2024
Department:
Finance
Attachments:
Ordinance No. 6930 B&O Tax Code Revis ions
Ordinance No. 6930 Exhibit A-C
Budget Impact:
Current Budget: $0
Proposed Revision: $0
Revised Budget: $0
Administrativ e Recommendation:
City Council to approve Ordinance No. 6930.
Background for Motion:
Ordinance No. 6930 amends the City's Business and Occupation Tax Code and
administrative provisions to add additional clarity around the intent and applicability of square
foot tax for businesses maintaining warehouse space within the City of Auburn.
Background Summary:
Ordinance No. 6930 amends ACC 3.53 Business and Occupation Tax, ACC 3.54 Business
and Occupation Tax Administrative Provisions and ACC 3.62.080 Administrative Code for
certain City taxes. All amendments to ACC 3.53 are for added clarity and applicability of
square foot tax, which includes: adding a definition for “Retail Floor Space”; amendment to
the definition of “Warehouse, Outdoor”; and emphasizing the applicability of the square foot
tax to all businesses that maintain warehouse space in the course of operating their business.
Amendments to ACC 3.54 and ACC 3.62 are identical and clarify when the Director may
waive or cancel penalties. Both Code Sections are administrative provisions, but for different
types of taxes. Changes to both Sections ensure consistency in how all waivers for penalties
and interest are applied to all business taxes in the City.
Rev iewed by Council Committees:
Councilmember:Kate Baldwin Staff:Jamie Thomas
Meeting Date:February 20, 2024 Item Number:ORD.C
Page 35 of 87
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Ordinance No. 6930
February 14, 2024
Page 1 of 2
ORDINANCE NO. 6930
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON AMENDING AUBURN CITY
CODE (ACC) CHAPTERS 3.53, 3.54 AND 3.62 RELATED
TO THE ADMINISTRATION OF CITY TAXES
WHEREAS, ACC Chapters 3.53 and 3.54 enact and administer the City’s B&O
tax, and ACC Chapter 3.62 administers other City taxes; and
WHEREAS, certain terms, provisions and definitions of sections within these
ACC chapters require revision to promote consistency and uniformity throughout the
code, and to enable greater clarity and precision in the administration and
implementation of City taxes; and
WHEREAS, the revisions proposed in this ordinance are in the best interest of
the City and its taxpayers.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section 1. Amendment to City Code. Chapter 3.53 of the Auburn City Code
is hereby amended to read as set forth in Exhibit A attached to this Ordinance.
Section 2. Amendment to City Code. Chapter 3.54 of the Auburn City Code
is hereby amended to read as set forth in Exhibit B attached to this Ordinance.
Section 3. Amendment to City Code. Chapter 3.62 of the Auburn City Code
is hereby amended to read as set forth in Exhibit C attached to this Ordinance.
Section 4. Implementation. The Mayor is authorized to implement those
administrative procedures necessary to carry out the directives of this legislation.
Page 36 of 87
--------------------------------
Ordinance No. 6930
February 14, 2024
Page 2 of 2
Section 5. Severability. The provisions of this ordinance are declared to be
separate and severable. The invalidity of any clause, sentence, paragraph, subdivision,
section, or portion of this ordinance, or the invalidity of the application of it to any person
or circumstance, will not affect the validity of the remainder of this ordinance, or the validity
of its application to other persons or circumstances.
Section 6. Effective date. This Ordinance will take effect and be in force five
days from and after its passage, approval, and publication as provided by law.
INTRODUCED: _______________
PASSED: ____________________
APPROVED: _________________
____________________________
NANCY BACKUS, MAYOR
ATTEST:
____________________________
Shawn Campbell, MMC, City Clerk
APPROVED AS TO FORM:
____________________________
Harry Boesche, Acting City Attorney
Published: ____________________
Page 37 of 87
ORD. 6930 —Exhibit A
ACC 3.53.020 Definitions.
In construing the provisions of this chapter, the following definitions shall be applied.
Words in the singular number shall include the plural, and the plural shall include the
singular.
A. “Adult family home” means a residential home licensed by the Washington State
Department of Social and Health Services (DSHS) pursuant to Chapter 70.128 RCW in
which a person or persons provides personal care, special care, room and board to
more than one but not more than six adults who are not related by blood or marriage to
the person or persons providing the services.
B. “Advance,” “Reimbursement.”
1. “Advance” means money or credits a taxpayer receives from a customer or client for
the purpose of paying costs or fees on behalf of the customer or client.
2. “Reimbursement” means money or credits a taxpayer receives from a customer or
client to repay the taxpayer for money or credits expended by the taxpayer in payment
of costs or fees of the customer or client.
C. “Agricultural Product,” “Farmer.”
1. “Agricultural product” means any product of plant cultivation or animal husbandry
including, but not limited to: a product of horticulture, grain cultivation, vermiculture,
viticulture, or aquaculture as defined in RCW 15.85.020; plantation Christmas trees; turf;
or any animal including but not limited to an animal that is a private sector cultured
aquatic product as defined in RCW 15.85.020, or a bird, or insect, or the substances
obtained from such animal. “Agricultural product” does not include animals intended to
be pets, marijuana, or marijuana-infused products as defined by RCW 69.50.101(y) and
(ff)).
2. “Farmer” means any person engaged in the business of growing or producing, upon
the person’s own lands or upon lands in which the person has a present right of
possession, any agricultural product whatsoever for sale. “Farmer” does not include a
person using such products as ingredients in a manufacturing process, or a person
growing or producing such products for the person’s own consumption. “Farmer” does
not include a person selling any animal or substance obtained therefrom in connection
with the person’s business of operating a stockyard or a slaughter or packing house.
“Farmer” does not include any person in respect to the business of taking, cultivating, or
raising timber. “Farmer” does not include any person engaged in the business of
growing, producing, processing, selling or distributing marijuana.
D. “Artistic or Cultural Organization.”
Page 38 of 87
1. The term “artistic or cultural organization” means an organization which is organized
and operated exclusively for the purpose of providing artistic or cultural exhibitions,
presentations, or performances or cultural or art education programs, as defined in
subsection (D)(10) of this section, for viewing or attendance by the general public.
2. The organization must be a not-for-profit corporation under Chapter 24.03 RCW.
3. The organization must be managed by a governing board of not less than eight
individuals none of whom is a paid employee of the organization or by a corporation
sole under Chapter 24.12 RCW.
4. No part of its income may be paid directly or indirectly to its members, stockholders,
officers, directors, or trustees except in the form of services rendered by the corporation
in accordance with its purposes and bylaws.
5. Salary or compensation paid to its officers and executives must be only for actual
services rendered, and at levels comparable to the salary or compensation of like
positions within the state.
6. Assets of the organization must be irrevocably dedicated to the activities for which
the exemption is granted and, on the liquidation, dissolution, or abandonment by the
organization, may not inure directly or indirectly to the benefit of any member or
individual except a nonprofit organization, association, or corporation which also would
be entitled to the exemption.
7. The organization must be duly licensed or certified when licensing or certification is
required by law or regulation.
8. The amounts received that qualify for exemption must be used for the activities for
which the exemption is granted.
9. Services must be available regardless of race, color, national origin, ancestry,
religion, age, sex, marital status, Vietnam or disabled veteran status, sexual orientation,
or the presence of any mental or physical disability.
10. The term “artistic or cultural exhibitions, presentations, or performances or cultural
or art education programs” is limited to:
a. An exhibition or presentation of works of art or objects of cultural or historical
significance, such as those commonly displayed in art or history museums;
b. A musical or dramatic performance or series of performances; or
c. An educational seminar or program, or series of such programs, offered by the
organization to the general public on an artistic, cultural, or historical subject.
Page 39 of 87
E. “Assisted living facility” means any home or other institution, however named, which
is advertised, announced, or maintained for the express or implied purpose of providing
housing, basic services, and assuming general responsibility for the safety and well-
being of the residents, and may also provide domiciliary care. “Assisted living facility”
shall not include facilities certified as group training homes pursuant to RCW
71A.22.040, nor any home, institution or section thereof which is otherwise licensed and
regulated under the provisions of state law providing specifically for the licensing and
regulation of such home, institution or section thereof. Nor shall it include any
independent senior housing, independent living units in continuing care retirement
communities, or other similar living situations including those subsidized by the
Department of Housing and Urban Development.
F. “Athletic or fitness facility” means an indoor or outdoor facility or portion of a facility
that is primarily used for: Exercise classes; strength and conditioning programs;
personal training services; tennis, racquetball, handball, squash, or pickleball; or other
activities requiring the use of exercise or strength training equipment, such as
treadmills, elliptical machines, stair climbers, stationary cycles, rowing machines, Pilates
equipment, balls, climbing ropes, jump ropes, and weightlifting equipment.
G. “Business” includes all activities engaged in with the object of gain, benefit, or
advantage to the taxpayer or to another person or class, directly or indirectly.
H. “Business and occupation tax” or “gross receipts tax” means a tax imposed on or
measured by the value of products, the gross income of the business, or the gross
proceeds of sales, as the case may be, and that is the legal liability of the business.
I. “City” means the city of Auburn, Washington.
J. “Commercial or industrial use” means the following uses of products, including by-
products, by the extractor or manufacturer thereof:
1. Any use as a consumer; and
2. The manufacturing of articles, substances or commodities.
K. “Competitive telephone service” means the providing by any person of
telecommunications equipment or apparatus, or service related to that equipment or
apparatus such as repair or maintenance service, if the equipment or apparatus is of a
type which can be provided by persons that are not subject to regulation as telephone
companies under RCW Title 80 and for which a separate charge is made.
L. “Consumer” means the following:
1. Any person who purchases, acquires, owns, holds, or uses any tangible or intangible
personal property irrespective of the nature of the person’s business. “Consumer”
includes, among others and without limiting its scope, persons who install, repair, clean,
Page 40 of 87
alter, improve, construct, or decorate real or personal property of or for a consumer
other than for the purpose of:
a. Resale as tangible or intangible personal property in the regular course of business;
b. Incorporating such property as an ingredient or component of real or personal
property when installing, repairing, cleaning, altering, imprinting, improving,
constructing, or decorating such real or personal property of or for consumers;
c. Incorporating such property as an ingredient or component of a new product or as a
chemical used in processing a new product when the primary purpose of such chemical
is to create a chemical reaction directly through contact with an ingredient of a new
product; or
d. Consuming the property in producing ferrosilicon which is subsequently used in
producing magnesium for sale, if the primary purpose of such property is to create a
chemical reaction directly through contact with an ingredient of ferrosilicon;
2. Any person engaged in any business activity that is taxable under ACC 3.53.040;
3. Any person who purchases, acquires, or uses any competitive telephone service as
herein defined, other than for resale in the regular course of business;
4. Any person who purchases, acquires, or uses any personal, business, or
professional service defined as a retail sale or retail service in this section, other than
for resale in the regular course of business;
5. Any person who is an end user of software;
6. Any person engaged in the business of “public road construction” with respect to
tangible personal property when that person incorporates the tangible personal property
as an ingredient or component of a publicly owned street, place, road, highway,
easement, right-of-way, mass public transportation terminal or parking facility, bridge,
tunnel, or trestle by installing, placing, or spreading the property in or upon the right-of-
way of a publicly owned street, place, road, highway, easement, bridge, tunnel, or
trestle, or in or upon the site of a publicly owned mass public transportation terminal or
parking facility;
7. Any person who is an owner, lessee, or has the right of possession to or an
easement in real property which is being constructed, repaired, decorated, improved, or
otherwise altered by a person engaged in business;
8. Any person who is an owner, lessee, or has the right of possession to personal
property which is being constructed, repaired, improved, cleaned, imprinted, or
otherwise altered by a person engaged in business; or
Page 41 of 87
9. Any person engaged in “government contracting.” Any such person shall be a
consumer within the meaning of this subsection with respect to tangible personal
property incorporated into, installed in, or attached to such building or other structure by
such person. Nothing contained in this or any other subsection of this section shall be
construed to modify any other definition of “consumer.”
M. “Delivery” means the transfer of possession of tangible personal property between
the seller and the buyer or the buyer’s representative. Delivery to an employee of a
buyer is considered delivery to the buyer. Transfer of possession of tangible personal
property occurs when the buyer or the buyer’s representative first takes physical control
of the property or exercises dominion and control over the property. “Dominion and
control” means the buyer has the ability to put the property to the buyer’s own purposes.
It means the buyer or the buyer’s representative has made the final decision to accept
or reject the property, and the seller has no further right to possession of the property
and the buyer has no right to return the property to the seller, other than under a
warranty contract. A buyer does not exercise dominion and control over tangible
personal property merely by arranging for shipment of the property from the seller to
itself. A buyer’s representative is a person, other than an employee of the buyer, who is
authorized in writing by the buyer to receive tangible personal property and take
dominion and control by making the final decision to accept or reject the property.
Neither a shipping company nor a seller can serve as a buyer’s representative. It is
immaterial where the contract of sale is negotiated or where the buyer obtains title to
the property. Delivery terms and other provisions of the Uniform Commercial Code
(RCW Title 62A) do not determine when or where delivery of tangible personal property
occurs for purposes of taxation.
N. “Director” means the finance director of the city or any officer, agent or employee of
the city designated to act on the director’s behalf.
O. “Digital automated service,” “digital code” and “digital goods” have the same
meaning as in RCW 82.04.192.
P. “Digital products” means digital goods, digital codes, digital automated services, and
the services described in RCW 82.04.050(2)(q) and (6)(b).
Q. Eligible gross receipts tax” means a tax which:
1. Is imposed on the act or privilege of engaging in business activities within section
ACC 3.53.040; and
2. Is measured by the gross volume of business, in terms of gross receipts, and is not
an income tax or value added tax; and
3. Is not, pursuant to law or custom, separately stated from the sales price; and
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4. Is not a sales or use tax, business license fee, franchise fee, royalty or severance tax
measured by volume or weight, or concession charge, or payment for the use and
enjoyment of property, property right or a privilege; and
5. Is a tax imposed by a local jurisdiction, whether within or without the state of
Washington, and not by a country, state, province, or any other nonlocal jurisdiction
above the county level.
R. “Engaging in Business.”
1. The term “engaging in business” means commencing, conducting, or continuing in
business, and also the exercise of corporate or franchise powers, as well as liquidating
a business when the liquidators thereof hold themselves out to the public as conducting
such business.
2. This subsection sets forth examples of activities that constitute engaging in business
in the city, and establishes safe harbors for certain of those activities so that a person
who meets the criteria may engage in de minimis business activities in the city without
having to register and obtain a business license or pay city business and occupation
taxes. The activities listed in this section are illustrative only and are not intended to
narrow the definition of “engaging in business” in subsection (R)(1) of this section. If an
activity is not listed, whether it constitutes engaging in business in the city shall be
determined by considering all the facts and circumstances and applicable law.
3. Without being all inclusive, any one of the following activities conducted within the
city by a person, or its employee, agent, representative, independent contractor, broker
or another acting on its behalf constitutes engaging in business and requires a person
to register and obtain a business license:
a. Owning, renting, leasing, maintaining, or having the right to use, or using, tangible
personal property, intangible personal property, or real property permanently or
temporarily located in the city.
b. Owning, renting, leasing, using, or maintaining an office, place of business, or other
establishment in the city.
c. Soliciting sales.
d. Making repairs or providing maintenance or service to real or tangible personal
property, including warranty work and property maintenance.
e. Providing technical assistance or service, including quality control, product
inspections, warranty work, or similar services on or in connection with tangible
personal property sold by the person or on its behalf.
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f. Installing, constructing, or supervising installation or construction of, real or tangible
personal property.
g. Soliciting, negotiating, or approving franchise, license, or other similar agreements.
h. Collecting current or delinquent accounts.
i. Picking up and transporting tangible personal property, solid waste, construction
debris, or excavated materials.
j. Providing disinfecting and pest control services, employment and labor pool services,
home nursing care, janitorial services, appraising, landscape architectural services,
security system services, surveying, and real estate services including the listing of
homes and managing real property.
k. Rendering professional services such as those provided by accountants, architects,
attorneys, auctioneers, consultants, engineers, professional athletes, barbers, baseball
clubs and other sports organizations, chemists, psychologists, court reporters, dentists,
doctors, detectives, laboratory operators, teachers, veterinarians.
l. Meeting with customers or potential customers, even when no sales or orders are
solicited at the meetings.
m. Training or recruiting agents, representatives, independent contractors, brokers or
others, domiciled or operating on a job in the city, acting on its behalf, or for customers
or potential customers.
n. Investigating, resolving, or otherwise assisting in resolving customer complaints.
o. In-store stocking or manipulating products or goods, sold to and owned by a
customer, regardless of where sale and delivery of the goods took place.
p. Delivering goods in vehicles owned, rented, leased, used, or maintained by the
person or another person acting on its behalf.
4. If a person, or their employee, agent, representative, independent contractor, broker
or another acting on the person’s behalf, engages in no other activities in or with the city
but the following, it need not register and obtain a business license and pay tax:
a. Meeting with suppliers of goods and services as a customer.
b. Meeting with government representatives in their official capacity, other than those
performing contracting or purchasing functions.
c. Attending meetings, such as board meetings, retreats, seminars, and conferences,
or other meetings wherein the person does not provide training in connection with
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tangible personal property sold by the person or on its behalf. This provision does not
apply to any board of directors member or attendee engaging in business such as a
member of a board of directors who attends a board meeting.
d. Renting tangible or intangible property as a customer when the property is not used
in the city.
e. Attending, but not participating in, a “trade show” or “multiple vendor events.”
Persons participating at a trade show shall review Chapter 2.23 ACC, Special Event
Permits.
f. Conducting advertising through the mail.
g. Soliciting sales by phone from a location outside the city.
5. A seller located outside the city merely delivering goods into the city by means of
common carrier is not required to register and obtain a business license; provided, that
it engages in no other business activities in the city. Such activities do not include those
in subsection (R)(4) of this section.
6. The city expressly intends that engaging in business include any activity sufficient to
establish nexus for purposes of applying the tax under the law and the Constitutions of
the United States and the state of Washington. Nexus is presumed to continue as long
as the taxpayer benefits from the activity that constituted the original nexus-generating
contact or subsequent contacts.
S. “Extracting” is the activity engaged in by an extractor and is reportable under the
extracting classification.
T. “Extractor.”
1. “Extractor” means every person who from the person’s own land or from the land of
another under a right or license granted by lease or contract, either directly or by
contracting with others for the necessary labor or mechanical services, for sale or for
commercial or industrial use, mines, quarries, takes or produces coal, oil, natural gas,
ore, stone, sand, gravel, clay, mineral or other natural resource product; or fells, cuts or
takes timber, Christmas trees other than plantation Christmas trees, or other natural
products; or takes fish, shellfish, or other sea or inland water foods or products.
2. “Extractor” does not include persons performing under contract the necessary labor
or mechanical services for others; persons meeting the definition of “farmer” under
RCW 82.04.213, or persons producing cannabis.
3. When an “extractor” is also a “manufacturer” under this chapter, the principles of
WAC 458-20-135 (as now enacted or hereafter amended) shall apply.
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U. “Extractor for hire” means a person who performs under contract necessary labor or
mechanical services for an extractor.
V. “Gross income of the business” means the value proceeding or accruing by reason
of the transaction of the business engaged in and includes gross proceeds of sales,
compensation for the rendition of services, gains realized from trading in stocks, bonds,
or other evidences of indebtedness, interest, discount, rents, royalties, fees,
commissions, dividends, and other emoluments however designated, all without any
deduction on account of the cost of tangible property sold, the cost of materials used,
labor costs, interest, discount, delivery costs, taxes, or any other expense whatsoever
paid or accrued and without any deduction on account of losses.
W. “Gross proceeds of sales” means the value proceeding or accruing from the sale of
tangible personal property, digital goods, digital codes, digital automated services or for
other services rendered, without any deduction on account of the cost of property sold,
the cost of materials used, labor costs, interest, discount paid, delivery costs, taxes, or
any other expense whatsoever paid or accrued and without any deduction on account of
losses.
X. “Gross receipts” has the same meaning as gross income.
Y. “Hospital” means any institution, place, building, or agency which provides
accommodations, facilities and services over a continuous period of 24 hours or more,
for observation, diagnosis, or care, of two or more individuals not related to the operator
who are suffering from illness, injury, deformity, or abnormality, or from any other
condition for which obstetrical, medical, or surgical services would be appropriate for
care or diagnosis. “Hospital” as used in this chapter does not include hotels, or similar
places furnishing only food and lodging, or simply domiciliary care; nor does it include
clinics, or physician’s offices where patients are not regularly kept as bed patients for 24
hours or more; nor does it include nursing homes, as defined and which come within the
scope of Chapter 18.51 RCW; nor does it include birthing centers, which come within
the scope of Chapter 18.46 RCW; nor does it include psychiatric hospitals, which come
within the scope of Chapter 71.12 RCW; nor any other hospital or institution specifically
intended for use in the diagnosis and care of those suffering from mental illness,
intellectual disability, convulsive disorders, or other abnormal mental condition.
Furthermore, nothing in this chapter or the rules adopted pursuant thereto shall be
construed as authorizing the supervision, regulation, or control of the remedial care or
treatment of residents or patients in any hospital conducted for those who rely primarily
upon treatment by prayer or spiritual means in accordance with the creed or tenets of
any well recognized church or religious denominations.
Z. “International Investment Management Services.”
1. “International investment management services” includes investment research,
investment consulting, fund administration, fund distribution, investment transactions, or
related investment services provided to persons for or on behalf of a collective
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investment fund. A person is considered to be engaged in providing international
investment management services if such person is providing investment management
services and/or is a member of an affiliated group (as defined by RCW 82.04.293(2)(b))
primarily in the business of providing investment management services to collective
investment funds, and at least 15 percent of the gross income of the person and/or
affiliated group is derived from providing investment management services to any of the
following:
a. Persons or collective investment funds residing outside the United States; or
b. Collective investment funds with at least 50 percent of their investment assets
located or issued outside the United States.
2. For the purpose of this section, “collective investment fund” includes:
a. A mutual fund or other regulated investment company as defined in 26
U.S.C. §851(a), as now enacted or hereafter amended;
b. An investment company, as defined in 15 U.S.C. §80a-3 (as now enacted or
hereafter amended), as well as any entity that would be an investment company for this
purpose but for the exemptions contained in 15 U.S.C. §80a-3;
c. An employee benefit plan, which includes any plan, trust, commingled employee
benefit trust, or custodial arrangement that is subject to 29 U.S.C. §1001 et seq., or that
is described in 26 U.S.C. §§125, 401, 403, 408, 457, 501(c)(9), and 501(c)(17) through
(24), or a similar plan maintained by a state or local government, or a plan trust, or
custodial arrangement established to self-insure benefits required by federal, state, or
local law;
d. A fund maintained by a tax exempt organization, as defined in 26 U.S.C. §501(c)(3)
for operating, quasi-endowment, or endowment purposes;
e. Funds that are established for the benefit of such tax exempt organizations, such as
charitable remainder trusts, charitable lead trusts, charitable annuity trusts, or other
similar trusts; or
f. Collective investment funds similar to those described in subsections (Z)(2)(a)
through (Z)(2)(e) of this section created under the laws of a foreign jurisdiction.
AA. “Liquor” shall have the same meaning as RCW 66.44.010.
BB. “Lottery commissions” are commissions received from sales of lottery and scratch
tickets to a consumer.
CC. “Manufacturing” means the activity conducted by a manufacturer and is reported
under the manufacturing classification.
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DD. “Manufacturer,” “To Manufacture.”
1. “Manufacturer” means every person who, either directly or by contracting with others
for the necessary labor or mechanical services, manufactures for sale or for commercial
or industrial use from the person’s own materials or ingredients any products. When the
owner of equipment or facilities furnishes, or sells to the customer prior to manufacture,
materials or ingredients equal to less than 20 percent of the total value of all materials
or ingredients that become a part of the finished product, the owner of the equipment or
facilities will be deemed to be a processor for hire, and not a manufacturer. A business
not located in this city that is the owner of materials or ingredients processed for it in this
city by a processor for hire shall be deemed to be engaged in business as a
manufacturer in this city.
2. “To manufacture” means all activities of a commercial or industrial nature wherein
labor or skill is applied, by hand or machinery, to materials or ingredients so that as a
result thereof a new, different or useful product is produced for sale or commercial or
industrial use, and shall include:
a. The production of special made or custom made articles;
b. The production of dental appliances, devices, restorations, substitutes, or other
dental laboratory products by a dental laboratory or dental technician;
c. Crushing and/or blending of rock, sand, stone, gravel, or ore; and
d. The producing of articles for sale, or for commercial or industrial use from raw
materials or prepared materials by giving such materials, articles, and substances of
trade or commerce new forms, qualities, properties or combinations including, but not
limited to, such activities as making, fabricating, processing, refining, mixing,
slaughtering, packing, aging, curing, mild curing, preserving, canning, and the preparing
and freezing of fresh fruits and vegetables.
“To manufacture” shall not include the production of digital goods or the production of
computer software if the computer software is delivered from the seller to the purchaser
by means other than tangible storage media, including the delivery by use of a tangible
storage media where the tangible storage media is not physically transferred to the
purchaser.
EE. “Newspaper,” “Magazine,” “Periodical.”
1. “Newspaper” means a publication offered for sale regularly at stated intervals at least
once per week and printed on newsprint in tabloid or broadsheet format folded loosely
together without stapling, glue, or any other binding of any kind.
2. “Magazine” or “periodical” means any printed publication, other than a newspaper,
issued and offered for sale regularly at stated intervals at least once every three
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months, including any supplement or special edition of the publication. Any publication
meeting this definition qualifies regardless of its content.
FF. “Office” or “place of business” means a fixed location or permanent facility where
the regular business of the person is conducted and which is either owned by the
person or over which the person exercises legal dominion and control. The regular
business of the person is presumed conducted at a location:
1. Whose address the person uses as their business mailing address; and
2. Where the place of primary use is shown on a telephone billing or a location
containing a telephone line, listed in a public telephone directory or other similar
publication, under the business name; and
3. Where the person holds themselves out to the general public as conducting regular
business through signage or other means; and
4. Where the person is required to obtain any appropriate state and local business
license or registration unless the person is exempted by law from such requirement.
A vehicle such as a pick-up, van, truck, boat or other motor vehicle is not an office or
place of business. A post office box is not an office or place of business.
If a person has an office or place of business, the person’s home is not an office or
place of business unless it meets the criteria for office or place of business above. If a
person has no office or place of business, the person’s home or apartment within the
city will be deemed the place of business.
GG. “Option to purchase” shall mean a continuing offer or contract by which owner
stipulates with another that the latter shall have the right to buy property at a fixed dollar
price within a certain time. An agreement is only an option when no obligation rests on
the potential buyer to make any payment except such as may be agreed upon by the
parties as consideration to support the option until the potential buyer has made up their
mind within a time specified to complete the purchase. The use of the term “fair market
value” or any other like term shall not be substituted for a fixed dollar price in
determining if an “option to purchase” exists.
HH. “Person” means any individual, receiver, administrator, executor, assignee, trustee
in bankruptcy, trust, estate, firm, co-partnership, joint venture, club, company, joint stock
company, business trust, municipal corporation, political subdivision of the state of
Washington, corporation, limited liability company, association, society, or any group of
individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit, or
otherwise and the United States or any instrumentality thereof.
II. “Processing for hire” means the performance of labor and mechanical services upon
materials or ingredients belonging to others so that as a result a new, different or useful
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product is produced for sale, or commercial or industrial use. A processor for hire is any
person who would be a manufacturer if that person were performing the labor and
mechanical services upon that person’s own materials or ingredients. If a person
furnishes, or sells to the customer prior to manufacture, materials or ingredients equal to
20% or more of the total value of all materials or ingredients that become a part of the
finished product the person will be deemed to be a manufacturer and not a processor
for hire.
JJ. “Product” means tangible personal property, including articles, substances, or
commodities created, brought forth, extracted, or manufactured by human or
mechanical effort. “By-product” means any additional product, other than the principal or
intended product, which results from extracting or manufacturing activities and which
has a market value, without regard to whether or not such additional product was an
expected or intended result of the extracting or manufacturing activities.
KK. “Retailing” means the activity of engaging in making sales at retail and is reported
under the retailing classification.
LL. “Retail floor space” means the area where items are on display for sale to the public,
together with the walkways and open spaces associated with such display.
LL.MM. “Retail service” shall include the sale of or charge made for personal, business,
or professional services including amounts designated as interest, rents, fees,
admission, and other service emoluments however designated, received by persons
engaging in the following business activities:
1. Amusement and recreation services including but not limited to golf, pool, billiards,
skating, bowling, swimming, bungee jumping, ski lifts and tows, basketball, racquet ball,
handball, squash, tennis, batting cages, day trips for sightseeing purposes, and others,
when provided to consumers. “Amusement and recreation services” also include the
provision of related facilities such as basketball courts, tennis courts, handball courts,
swimming pools, and charges made for providing the opportunity to dance. The term
“amusement and recreation services” does not include instructional lessons to learn a
particular activity such as tennis lessons, swimming lessons, or archery lessons;
2. Abstract, title insurance, and escrow services;
3. Credit bureau services;
4. Automobile parking and storage garage services;
5. Landscape maintenance and horticultural services but excluding (a) horticultural
services provided to farmers and (b) pruning, trimming, repairing, removing, and
clearing of trees and brush near electric transmission or distribution lines or equipment,
if performed by or at the direction of an electric utility;
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6. Service charges associated with tickets to professional sporting events; and
7. The following personal services: physical fitness services, tanning salon services,
tattoo parlor services, steam bath services, Turkish bath services, escort services, and
dating services.
8. The term shall also include the renting or leasing of tangible personal property to
consumers and the rental of equipment with an operator.
MM.NN. “Royalties” means compensation for the use of intangible property, such as
copyrights, patents, licenses, franchises, trademarks, trade names, and similar items.
NN.OO. “Sale,” “Casual or Isolated Sale.”
1. “Sale” means any transfer of the ownership of, title to, or possession of, property for
a valuable consideration and includes any activity classified as a “sale at retail,” “retail
sale,” or “retail service.” It includes renting or leasing, conditional sale contracts, leases
with option to purchase, and any contract under which possession of the property is
given to the purchaser but title is retained by the vendor as security for the payment of
the purchase price. It also includes the furnishing of food, drink, or meals for
compensation whether consumed upon the premises or not.
2. “Casual or isolated sale” means a sale made by a person who is not engaged in the
business of selling the type of property involved on a routine or continuous basis.
OO.PP. “Sale at Retail,” “Retail Sale.”
1. “Sale at retail” or “retail sale” means every sale of tangible personal property
(including articles produced, fabricated, or imprinted) to all persons irrespective of the
nature of their business and including, among others, without limiting the scope hereof,
persons who install, repair, clean, alter, improve, construct, or decorate real or personal
property of or for consumers, other than a sale to a person who presents a resale
certificate under RCW 82.04.470, and who:
a. Purchases for the purpose of resale as tangible personal property in the regular
course of business without intervening use by such person; or
b. Installs, repairs, cleans, alters, imprints, improves, constructs, or decorates real or
personal property of or for consumers, if such tangible personal property becomes an
ingredient or component of such real or personal property without intervening use by
such person; or
c. Purchases for the purpose of consuming the property purchased in producing for
sale a new article of tangible personal property or substance, of which such property
becomes an ingredient or component or is a chemical used in processing, when the
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primary purpose of such chemical is to create a chemical reaction directly through
contact with an ingredient of a new article being produced for sale; or
d. Purchases for the purpose of consuming the property purchased in producing
ferrosilicon which is subsequently used in producing magnesium for sale, if the primary
purpose of such property is to create a chemical reaction directly through contact with
an ingredient of ferrosilicon; or
e. Purchases for the purpose of providing the property to consumers as part of
competitive telephone service, as defined in RCW 82.04.065. The term shall include
every sale of tangible personal property which is used or consumed or to be used or
consumed in the performance of any activity classified as a “sale at retail” or “retail sale”
even though such property is resold or utilized as provided in subsections (OO)(1)(a)
through (OO)(1)(e) of this section following such use.
f. Purchases for the purpose of satisfying the person’s obligations under an extended
warranty as defined in subsection (OO)(7) of this section, if such tangible personal
property replaces or becomes an ingredient or component of property covered by the
extended warranty without intervening use by such person.
2. “Sale at retail” or “retail sale” also means every sale of tangible personal property to
persons engaged in any business activity which is taxable under ACC 3.53.040(A)(7).
3. “Sale at retail” or “retail sale” shall include the sale of or charge made for tangible
personal property consumed and/or for labor and services rendered in respect to the
following:
a. The installing, repairing, cleaning, altering, imprinting, or improving of tangible
personal property of or for consumers, including charges made for the mere use of
facilities in respect thereto, but excluding charges made for the use of coin-operated
laundry facilities when such facilities are situated in an apartment house, rooming
house, or mobile home park for the exclusive use of tenants thereof, and also excluding
sales of laundry service to nonprofit health care facilities, and excluding services
rendered in respect to live animals, birds and insects;
b. The constructing, repairing, decorating, or improving of new or existing buildings or
other structures under, upon, or above real property of or for consumers, including the
installing or attaching of any article of tangible personal property therein or thereto,
whether or not such personal property becomes a part of the realty by virtue of
installation, and shall also include the sale of services or charges made for the clearing
of land and the moving of earth excepting the mere leveling of land used in commercial
farming or agriculture;
c. The charge for labor and services rendered in respect to constructing, repairing, or
improving any structure upon, above, or under any real property owned by an owner
who conveys the property by title, possession, or any other means to the person
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performing such construction, repair, or improvement for the purpose of performing
such construction, repair, or improvement and the property is then reconveyed by title,
possession, or any other means to the original owner;
d. The sale of or charge made for labor and services rendered in respect to the
cleaning, fumigating, razing or moving of existing buildings or structures, but shall not
include the charge made for janitorial services; and for purposes of this section the term
“janitorial services” shall mean those cleaning and caretaking services ordinarily
performed by commercial janitor service businesses including, but not limited to, wall
and window washing, floor cleaning and waxing, and the cleaning in place of rugs,
drapes and upholstery. The term “janitorial services” does not include painting,
papering, repairing, furnace or septic tank cleaning, snow removal or sandblasting;
e. The sale of or charge made for labor and services rendered in respect to automobile
towing and similar automotive transportation services, but not in respect to those
required to report and pay taxes under Chapter 82.16 RCW;
f. The sale of and charge made for the furnishing of lodging and all other services,
except telephone business and cable service, by a hotel, rooming house, tourist court,
motel, trailer camp, and the granting of any similar license to use real property, as
distinguished from the renting or leasing of real property, and it shall be presumed that
the occupancy of real property for a continuous period of one month or more constitutes
a rental or lease of real property and not a mere license to use or enjoy the same. For
the purposes of this subsection, it shall be presumed that the sale of and charge made
for the furnishing of lodging for a continuous period of one month or more to a person is
a rental or lease of real property and not a mere license to enjoy the same;
g. The installing, repairing, altering, or improving of digital goods for consumers;
h. The sale of or charge made for tangible personal property, labor and services to
persons taxable under subsections (OO)(3)(a) through (OO)(3)(g) of this section when
such sales or charges are for property, labor and services which are used or consumed
in whole or in part by such persons in the performance of any activity defined as a “sale
at retail” or “retail sale” even though such property, labor and services may be resold
after such use or consumption. Nothing contained in this subsection shall be construed
to modify subsection (OO)(1) of this section and nothing contained in
subsection (OO)(1) of this section shall be construed to modify this subsection.
4. “Sale at retail” or “retail sale” shall also include the providing of competitive
telephone service to consumers.
5. “Sale at retail” or “retail sale” shall also include the sale of prewritten software other
than a sale to a person who presents a resale certificate under RCW 82.04.470,
regardless of the method of delivery to the end user.
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a. For purposes of this subsection (OO)(5), the sale of prewritten computer software
includes the sale of or charge made for a key or an enabling or activation code, where
the key or code is required to activate prewritten computer software and put the
software into use. There is no separate sale of the key or code from the prewritten
computer software, regardless of how the sale may be characterized by the vendor or
by the purchaser.
b. The term “sale at retail” or “retail sale” does not include the sale of or charge made
for custom software; or the customization of prewritten software.
c. The term also includes the charge made to consumers for the right to access and
use prewritten computer software, where possession of the software is maintained by
the seller or a third party, regardless of whether the charge for the service is on a per
use, per user, per license, subscription, or some other basis.
i. The service described in this subsection (OO)(5)(c) includes the right to access and
use prewritten software to perform data processing.
ii. For purposes of subsection (OO)(5)(c)(i) of this section “data processing” means the
systematic performance of operations on data to extract the required information in an
appropriate form or to convert the data to usable information. Data processing includes
check processing, image processing, form processing, survey processing, payroll
processing, claim processing, and similar activities.
6. “Sale at retail” or “retail sale” shall also include the sale of or charge made for labor
and services rendered in respect to the building, repairing, or improving of any street,
place, road, highway, easement, right-of-way, mass public transportation terminal or
parking facility, bridge, tunnel, or trestle which is owned by a municipal corporation or
political subdivision of the state, the state of Washington, or by the United States and
which is used or to be used primarily for foot or vehicular traffic including mass
transportation vehicles of any kind (public road construction).
7. “Sale at retail” or “retail sale” shall also include the sale of or charge made for an
extended warranty to a consumer. For purposes of this subsection, “extended warranty”
means an agreement for a specified duration to perform the replacement or repair of
tangible personal property at no additional charge or a reduced charge for tangible
personal property, labor, or both, or to provide indemnification for the replacement or
repair of tangible personal property, based on the occurrence of specified events. The
term “extended warranty” does not include an agreement, otherwise meeting the
definition of “extended warranty” in this subsection, if no separate charge is made for
the agreement and the value of the agreement is included in the sales price of the
tangible personal property covered by the agreement.
8. “Sale at retail” or“ retail sale” shall also include the sale of or charge made for labor
and services rendered in respect to the constructing, repairing, decorating, or improving
of new or existing buildings or other structures under, upon, or above real property of or
Page 54 of 87
for the United States, any instrumentality thereof, or a county or city housing authority
created pursuant to Chapter 35.82 RCW, including the installing or attaching of any
article of tangible personal property therein or thereto, whether or not such personal
property becomes a part of the realty by virtue of installation (government contracting).
9. “Sale at retail” or “retail sale” shall not include the sale of services or charges made
for the clearing of land and the moving of earth of or for the United States, any
instrumentality thereof, or a county or city housing authority. Nor shall the term include
the sale of services or charges made for cleaning up for the United States, or its
instrumentalities, radioactive waste and other by-products of weapons production and
nuclear research and development. (This should be reported under the service and
other classification as defined under ACC 3.53.040(A)(7)).
10. “Sale at retail” or “retail sale” shall not include the sale of or charge made for labor
and services rendered for environmental remedial action. (This should be reported
under the service and other classification as defined under ACC 3.53.040(A)(7)).
11. “Sale at retail” or “retail sale” shall also include the following sales to consumers of
digital goods, digital codes, and digital automated services:
a. Sales in which the seller has granted the purchaser the right of permanent use;
b. Sales in which the seller has granted the purchaser a right of use that is less than
permanent;
c. Sales in which the purchaser is not obligated to make continued payment as a
condition of the sale; and
d. Sales in which the purchaser is obligated to make continued payment as a condition
of the sale.
A retail sale of digital goods, digital codes, or digital automated services under this
subsection (OO)(11) includes any services provided by the seller exclusively in
connection with the digital goods, digital codes, or digital automated services, whether
or not a separate charge is made for such services.
For purposes of this subsection, “permanent” means perpetual or for an indefinite or
unspecified length of time. A right of permanent use is presumed to have been granted
unless the agreement between the seller and the purchaser specifies or the
circumstances surrounding the transaction suggest or indicate that the right to use
terminates on the occurrence of a condition subsequent.
12. “Sale at retail” or “retail sale” shall also include the installing, repairing, altering, or
improving of digital goods for consumers.
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PP.QQ. “Sale at wholesale” or “wholesale sale” means any sale of tangible personal
property, digital goods, digital codes, digital automated services, prewritten computer
software, or services described in subsection (OO)(5)(b) of this section, which is not a
retail sale, and any charge made for labor and services rendered for persons who are
not consumers, in respect to real or personal property and retail services, if such charge
is expressly defined as a retail sale or retail service when rendered to or for consumers.
Sale at wholesale also includes the sale of telephone business to another
telecommunications company as defined in RCW 80.04.010 for the purpose of resale,
as contemplated by RCW 35.21.715.
QQ.RR. “Service” means any sale or charge made for personal, business or
professional service, including amounts designated as rents, fees, or admissions, not
otherwise included within any other tax classification defined herein; provided, that the
term “service” excludes retail or wholesale services.
RR.SS. “Software,” “Prewritten Software,” “Custom Software,” “Customization of
Canned Software,” “Master Copies,” “Retained Rights.”
1. “Prewritten software” or “canned software” means computer software, including
prewritten upgrades, that is not designed and developed by the author or other creator
to the specifications of a specific purchaser. The combining of two or more prewritten
computer software programs or prewritten portions thereof does not cause the
combination to be other than prewritten computer software. Prewritten computer
software includes software designed and developed by the author or other creator to the
specifications of a specific purchaser when it is sold to a person other than such
purchaser. Where a person modifies or enhances computer software of which such
person is not the author or creator, the person shall be deemed to be the author or
creator only of the person’s modifications or enhancements. Prewritten computer
software or a prewritten portion thereof that is modified or enhanced to any degree,
where such modification or enhancement is designed and developed to the
specifications of a specific purchaser, remains prewritten computer software; however,
where there is a reasonable, separately stated charge or an invoice or other statement
of the price given to the purchaser for the modification or enhancement, the modification
or enhancement shall not constitute prewritten computer software.
2. “Custom software” means software created for a single person.
3. “Customization of canned software” means any alteration, modification, or
development of applications using or incorporating canned software to specific
individualized requirements of a single person. Customization of canned software
includes individualized configuration of software to work with other software and
computer hardware but does not include routine installation. Customization of canned
software does not change the underlying character or taxability of the original canned
software.
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4. “Master copies” of software means copies of software from which a software
developer, author, inventor, publisher, licensor, sublicensor, or distributor makes copies
for sale or license. The software encoded on a master copy and the media upon which
the software resides are both ingredients of the master copy.
5. “Retained rights” means any and all rights, including intellectual property rights such
as those rights arising from copyrights, patents, and trade secret laws, that are owned
or are held under contract or license by a software developer, author, inventor,
publisher, licensor, sublicensor, or distributor.
6. “Software” means any information, program, or routine, or any set of one or more
programs, routines, or collections of information, used, or intended for use, to convey
information that causes one or more computers or pieces of computer-related peripheral
equipment, or any combination thereof, to perform a task or set of tasks. “Software”
includes the associated documentation, materials, or ingredients, regardless of the
media upon which that documentation is provided, that describe the code and its use,
operation, and maintenance and that typically are delivered with the code to the
consumer. All software is classified as either canned or custom.
SS.TT. “Taxpayer” means any “person,” as herein defined, required to have a business
license under this chapter or liable for the collection of any tax or fee under this chapter,
or who engages in any business or who performs any act for which a tax or fee is
imposed by this chapter.
TT.UU. “Tuition fee” includes library, laboratory, health service, and other special fees,
and amounts charged for room and board by an educational institution when the
property or service for which such charges are made is furnished exclusively to the
students or faculty of such institution. “Educational institution,” as used in this section,
means only those institutions created or generally accredited as such by the state and
includes educational programs that such educational institution cosponsors with a
nonprofit organization, as defined by 26 U.S.C. §501(c)(3), as hereafter amended, if
such educational institution grants college credit for coursework successfully completed
through the educational program, or an approved branch campus of a foreign degree-
granting institution in compliance with Chapter 28B.90 RCW, and in accordance with
RCW 82.04.4332 or defined as a degree-granting institution under
RCW 28B.85.010(3) and accredited by an accrediting association recognized by the
United States Secretary of Education, and offering to students an educational program
of a general academic nature or those institutions which are not operated for profit and
which are privately endowed under a deed of trust to offer instruction in trade, industry,
and agriculture, but not including specialty schools, business colleges, other trade
schools, or similar institutions.
UU.VV. “Value proceeding or accruing” means the consideration, whether money,
credits, rights, or other property expressed in terms of money, a person is entitled to
receive or which is actually received or accrued. The term shall be applied, in each
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case, on a cash receipts or accrual basis according to which method of accounting is
regularly employed in keeping the books of the taxpayer.
VV.WW. “Value of Products.”
1. The value of products, including by-products, extracted or manufactured, shall be
determined by the gross proceeds derived from the sale thereof whether such sale is at
wholesale or at retail, to which shall be added all subsidies and bonuses received from
the purchaser or from any other person with respect to the extraction, manufacture, or
sale of such products or by-products by the seller.
2. Where such products, including by-products, are extracted or manufactured for
commercial or industrial use; and where such products, including by-products, are
shipped, transported or transferred out of the city, or to another person, without prior
sale or are sold under circumstances such that the gross proceeds from the sale are not
indicative of the true value of the subject matter of the sale; the value shall correspond
as nearly as possible to the gross proceeds from sales in this state of similar products of
like quality and character, and in similar quantities by other taxpayers, plus the amount
of subsidies or bonuses ordinarily payable by the purchaser or by any third person with
respect to the extraction, manufacture, or sale of such products. In the absence of sales
of similar products as a guide to value, such value may be determined upon a cost
basis. In such cases, there shall be included every item of cost attributable to the
particular article or article extracted or manufactured, including direct and indirect
overhead costs. The director may prescribe rules for the purpose of ascertaining such
values.
3. Notwithstanding subsection (VV)(2) of this section, the value of a product
manufactured or produced for purposes of serving as a prototype for the development
of a new or improved product shall correspond to (a) the retail selling price of such new
or improved product when first offered for sale; or (b) the value of materials incorporated
into the prototype in cases in which the new or improved product is not offered for sale.
WW.XX. “Warehouse” means every structure wherein facilities are offered for the
storage of tangible personal property. It includes the following:
1. “Storage warehouse” means a building or structure, or any part thereof, in which
goods, wares, or merchandise are received for storage for compensation, except field
warehouses, fruit warehouses, fruit packing plants, unroasted coffee bean warehouses,
warehouses licensed under Chapter 22.09 RCW (which are agricultural commodities
warehouses), public garages storing automobiles, railroad freight sheds, docks and
wharves, and “self-storage” or “mini-storage” facilities whereby customers have direct
access to individual storage areas by separate access.
2. “Cold storage warehouse” means a storage warehouse used to store fresh and/or
frozen perishable fruits or vegetables, meat, seafood, dairy products, or fowl, or any
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combination thereof, at a desired temperature to maintain the quality of the product for
orderly marketing. This term does not include freezer space or frozen food lockers.
3. “Automobile storage garage” means any off-street building, structure, or area where
vehicles are parked or stored, for any period of time, for a charge.
XX.YY. "Warehouse, outdoor" means an area that is outdoors and primarily used for
the storage of merchandise, goods, wares, commodities, inventory, materials, or
equipment or other items, which are not intended for immediate sale, (whether or not for
compensation) in furtherance of engaging in business.
YY.ZZ. “Wholesaling” means engaging in the activity of making sales at wholesale, and
is reported under the wholesaling classification.
ACC 3.53.040 Imposition of the tax – Tax or fee levied.
Except as provided in subsection C of this section, effective January 1, 2022, at 12:01
a.m. there is hereby levied upon and shall be collected from every person a tax for the
act or privilege of engaging in business activities within the city of Auburn, whether the
person’s office or place of business be within or without the city. The tax shall be in
amounts to be determined by application of rates against gross proceeds of sale, gross
income of business, or value of products, including by-products, as the case may be, as
follows:
A. Gross Receipts Tax.
1. Upon every person engaging within the city in business as an extractor; as to such
persons, the amount of the tax with respect to such business shall be equal to the value
of the products, including by-products, extracted within the city for sale or for
commercial or industrial use, multiplied by the rate of 0.100 of 1% (0.001). The
measure of the tax is the value of the products, including by-products, so extracted,
regardless of the place of sale or the fact that deliveries may be made to points outside
the city.
2. Upon every person engaging within the city in business as a manufacturer; as to
such persons, the amount of the tax with respect to such business shall be equal to the
value of the products, including by-products, manufactured within the city, multiplied by
the rate of 0.100 of 1% (0.001). The measure of the tax is the value of the products,
including by-products, so manufactured, regardless of the place of sale or the fact that
deliveries may be made to points outside the city.
3. Upon every person engaging within the city in the business of making sales at
wholesale; as to such persons, the amount of tax with respect to such business shall be
equal to the gross proceeds of such sales of the business multiplied by the rate of 0.180
of 1% (0.0018).
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4. Upon every person engaging within the city in the business of making sales at retail;
as to such persons, the amount of tax with respect to such business shall be equal to
the gross proceeds of such sales of the business multiplied by the rate of 0.050 of 1%
(0.0005).
5. Upon every person engaging within the city in the business of (a) printing, (b) both
printing and publishing newspapers, magazines, periodicals, books, music, and other
printed items, (c) publishing newspapers, magazines and periodicals, (d) extracting for
hire, and (e) processing for hire; as to such persons, the amount of tax on such
business shall be equal to the gross income of the business multiplied by the rate of
0.100 of 1% (0.001).
6. Upon every person engaging within the city in the business of making sales of retail
services; as to such persons, the amount of tax with respect to such business shall be
equal to the gross proceeds of sales multiplied by the rate of 0.150 of 1% (0.0015).
7. Upon every other person engaging within the city in any business activity other than
or in addition to those enumerated in the above subsections; such persons shall report
gross receipts under the “service and other tax” classification, and the amount of tax on
account of such activities shall be equal to the gross income of the business multiplied
by the rate of 0.100 of 1% (0.001). This classification includes (among others, without
limiting its scope and whether or not title to material used in the performance of such
business passes to another by accession, merger or other than by outright sale):
persons engaged in the business of developing or producing custom software or of
customizing canned software, persons producing royalties or commissions, and persons
engaged in the business of rendering any type of service which does not constitute a
sale at retail, a sale at wholesale, or a retail service.
8. Lottery Commissions are commissions received from the sales of lottery and scratch
tickets to a consumer. Taxpayers must report commissions received from such sales on
the excise tax return under Service & Other B&O tax classification. Lottery payouts do
not qualify for the payouts deduction.
9.. Persons otherwise subject to the “service and other tax” classification who engage
in business in multiple jurisdictions shall report their service income under the “service
and other apportionment” tax classification, and shall allocate their gross receipts in
accordance with ACC 3.53.080 by using the city’s service income apportionment
supplemental form.
B. Square Footage Tax.
This subsection B applies to any business that uses warehouse space within the City in
the course of or in the furtherance of its business activities, regardless of any business
activity tax classifications in subsection A of this section.
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1. Upon every person who leases, owns, occupies, or otherwise maintains a
warehouse or outdoor warehouse within the city for purposes of engaging in business
activities in the city there shall be a tax measured by the number of square feet of
business warehouse floor space or outdoor warehouse space. The amount of the tax
shall be equal to $0.10 for each quarterly period of a calendar year for each square foot
of warehouse or outdoor warehouse floor space that is leased, owned, occupied, or
otherwise maintained within the city during the reporting period, calculated to the
nearest square foot.
2. For purposes of this subsection, “warehouse” means every structure wherein
facilities are offered for the storage of tangible personal property. It includes “storage
warehouses,” “cold storage warehouses” and “automobile storage garage” as defined in
ACC 3.53.020(WW).
3. For purposes of this subsection, “outdoor warehouse” means an area that is outdoors
and is primarily used for the storage of merchandise, goods, wares, commodities,
inventory, materials, or equipment, or other items (whether or not for compensation) in
furtherance of engaging in business.
4. For purposes of this subsection, the square footage of a business warehouse shall
be computed by measuring to the inside finish of permanent outer building walls and
shall include space used by columns and projections necessary to the building. Square
footage shall not include stairs, elevator shafts, flues, pipe shafts, vertical ducts, heating
or ventilation shafts, janitor closets, and electrical or utility closets. Outdoor warehouse
space is measured based on the entire space used for outdoor warehousing and is not
measured solely based on the size of the goods, wares, merchandise, or commodities
that are being stored.
5. For purposes of this subsection, the square footage of an outdoor warehouse shall
only include those areas used and/or intended to be used for the receipt or storage of
goods, wares, merchandise, or commodities, inventory, materials, equipment, or other
items that are being received and temporarily stored, (whether or not for compensation)
in furtherance of engaging in business. Square footage shall not include: areas used
only for employee, customer, or visitor parking; dock high loading areas; used primarily
for a business warehouse, buildings or areas used only for direct sales retail floor space
or rentals to consumers; landscaped areas; storm water facilities; maneuvering areas or
drive aisles; areas used only for garbage or recycling pickup; rights-of-way; or other
areas clearly not used for the temporary storage of items described in this subsection
goods, wares, merchandise, and commodities in transit.
6. Persons with more than one business warehouse or outdoor warehouse within the
city must include all business warehouse floor space and outdoor warehouse space for
all locations within the city. When a person rents space to another person, the person
occupying the rental space is responsible for the square footage business tax on that
rental space. Space rented for the storage of goods in a warehouse or outdoor
warehouse where no walls or other barriers separate the goods, and where the
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exclusive right of possession in the space is not held by the person to whom the space
is rented, shall be included in the business warehouse floor space of the person that
operates the business warehouse, and not by the person renting the warehouse space.
7. If the square footage tax imposed in this subsection B is equal to or less than the
gross receipts tax imposed in subsection A of this section, no square footage tax will be
due. If the square footage tax imposed in this subsection B exceeds the gross receipts
tax imposed in subsection A of this section, the square footage tax will be due, but no
gross receipts tax will be due. The taxpayer shall remit the tax due on the higher of the
two categories, but not both, under subsections A and B of this section.
C. Gross Receipt and Square Footage Tax Thresholds.
1. Gross Receipts Threshold. The gross receipts tax imposed in this section shall not
apply to any person whose company-wide gross proceeds of sales, gross income of the
business, and value of products, including by-products, as the case may be, from all
activities during any calendar year is equal to or less than $500,000, nor shall it apply to
any person who does not maintain a place of business in the city whose annual value of
products, gross proceeds of sales, or gross income of the business in the city is equal to
or less than $2,000.
2. Square Footage Threshold. The square footage tax imposed in subsection B of this
section shall not apply to any person unless that person’s total area of business space
within the city exceeds one of the following thresholds:
a. Four thousand (4,000) taxable square feet of business warehouse space; or
b. Two hundred sixty-one thousand three hundred sixty (261,360) taxable square feet
(six acres) of outdoor warehouse space.
If the square footage tax applies, it applies to all business space leased, owned,
occupied, or otherwise maintained by the taxpayer during the applicable reporting
period.
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ORD. 6930 —Exhibit B
3.54.150 Waiver of penalties and interest.
A. The director may cancel any penalties imposed under ACC 3.54.140(A) if the
taxpayer shows that its failure to timely file or pay the tax was due to reasonable cause
and not willful neglect. Willful neglect is presumed unless the taxpayer shows that it
exercised ordinary business care and prudence in making arrangements to file the
return and pay the tax but was, nevertheless, due to circumstances beyond the
taxpayer’s control, unable to file or pay by the due date. The director has no authority to
cancel any other penalties or to cancel penalties for any other reason except as
provided in subsection C of this section.
B. A request for cancellation of penalties must be received by the director within 30
days after the date the finance department mails the notice that the penalties are due.
The request must be in writing and contain competent proof of all pertinent facts
supporting a reasonable cause determination. In all cases the burden of proving the
facts rests upon the taxpayer.
C. The director may waive or cancel a penalty imposed under ACC 3.54.140(A) when a
taxpayer is ineligible for a penalty waiver or cancellation under subsection A of this
section, if:
1. Was not licensed, and filing returns; and
1.2. The taxpayer has timely filed all tax returns and paid all required taxes due for 24-
months immediately preceding the period for which the waiver was requested.
D. The director may also waive or cancel interest imposed under this chapter if:
1. The timing of the taxpayer’s tax payment was in direct reliance on written instructions
from the director to the taxpayer; or
2. The timing of a taxpayer’s assessment deficiency payment was based on a due date
established for the sole convenience of the director.
E. The director may adopt rules for the waiver or cancellation of penalties and interest
under this section.
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ORD. 6930 —Exhibit C
ACC 3.62.080 Waiver of penalties and interest.
A. The director may waive penalties or interest otherwise required by this Chapter or by
ACC Chapters 3.40, 3.41, 3.42, 3.52, 3.80, 3.84 or 3.88 If a taxpayer’s failure to pay
required taxes when due was caused by circumstances beyond the taxpayer’s control.
B. A taxpayer may submit a written request to the director for the waiver of penalties or
interest under this section within 30 days after the finance department mails the
taxpayer a notice that penalties are due. The request must contain facts supporting a
waiver under this section. In all cases the burden of producing facts rests upon the
taxpayer.
C. The director may waive or cancel a penalty imposed when a taxpayer is ineligible for
a penalty waiver or cancellation under subsection A of this section, if:
1. Was not licensed and filing returns;
1.2. The taxpayer has timely filed all tax returns and paid all required taxes due under
those RCW sections for 24 months immediately preceding the period for which the
waiver was requested.
D. The director may also waive or cancel interest imposed under this chapter if:
1. The timing of the taxpayer’s tax payment was in direct reliance on written instructions
from the director to the taxpayer; or
2. The timing of a taxpayer’s assessment deficiency payment was based on a due date
established for the sole convenience of the director.
E. The director may adopt rules for the waiver or cancellation of penalties and interest
under this section.
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AGENDA BILL APPROVAL FORM
Agenda Subject:
Ordinance No. 6932 (Gaub)
Date:
January 24, 2024
Department:
Public Works
Attachments:
Ordinance No. 6932
Exhibit 1
Budget Impact:
Current Budget: $0
Proposed Revision: $0
Revised Budget: $0
Administrativ e Recommendation:
City Council to approve Ordinance No. 6932.
Background for Motion:
This Ordinance transfers Franchise Agreement No. FRN21-0003 for Sprint Communications
Company, L.P. a wholly owned subsidiary of T-Mobile to Sprint Communications Company,
L.P. a wholly owned subsidiary of Cogent.
Background Summary:
Section 20.02.040 of the Auburn City Code requires a franchise for any telecommunications
carrier or operator to use public ways of the City and to provide telecommunications services
to any person or areas inside or outside of the City.
Sprint Communications Company, L.P. (Sprint) currently holds Franchise Agreement No.
FRN21-0003 to operate existing fiber optic telecommunications facilities located in the public
way in six east/west road crossings through the Union Pacific Rail Road property that runs
north/south through the City. Sprint does not currently serve any customers inside of the city
limits from the existing facilities.
Section 20.02.290 of the Auburn City Code and Section 18 of Franchise Agreement No.
FRN21-0003 provide that the franchise will not be leased, assigned or otherwise alienated
without the express prior consent of the City by ordinance.
When the City granted Sprint’s franchise, Sprint was owned by T-Mobile USA, Inc. The City
received notice from Cogent Infrastructure, Inc (Cogent) that they were acquiring 100 percent
of Sprint’s assets and liability from T-Mobile, including the facilities and financial responsibility
associated with Franchise Agreement No. FRN21-0003. In accordance with Auburn City
Code 20.02.290 and Section 18 of Franchise Agreement No. FRN21-0003, Cogent has
submitted the required transfer application, information, and written promise to unconditionally
accept all terms and conditions of the Franchise Agreement. Sprint, now owned by Cogent,
will continue to operate the existing fiber optic telecommunications facilities located in the
public way under the current agreement.
A staff presentation was provided at the February 12, 2024 Study Session.
Page 65 of 87
Ordinance No. 6932 transfers Franchise Agreement No. FRN21-0003 for Sprint
Communications Company, L.P. a wholly owned subsidiary of T-Mobile to Sprint
Communications Company, L.P. a wholly owned subsidiary of Cogent subject to the terms
and conditions outlined in the Ordinance.
Rev iewed by Council Committees:
Councilmember:Tracy Taylor Staff:Ingrid Gaub
Meeting Date:February 20, 2024 Item Number:ORD.D
Page 66 of 87
--------------------------------
Ordinance No. 6932
FRN21-0003
January 24, 2024
Page 1 of 3 Rev. 08/23
ORDINANCE NO. 6932
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, TRANSFERRING A CITY
TELECOMMUNICATIONS FRANCHISE FROM SPRINT
COMMUNICATIONS COMPANY, L.P. (AS A T-MOBILE
SUBSIDIARY) TO SPRINT COMMUNICATIONS COMPANY,
L.P. (AS A COGENT SUBSIDIARY)
WHEREAS, by enacting Ordinance No. 6887, the City granted Sprint
Communications Company, L.P. (Sprint) a telecommunications franchise under
Franchise Agreement No. FRN21-0003 (Franchise). A copy of Ordinance No. 6887 is
attached to this Ordinance as Exhibit 1. T-Mobile USA, Inc. (T-Mobile) owned all of
Sprint’s Franchise assets at the time of the City’s Franchise approval; and
WHEREAS, after the City’s Franchise approval, Cogent Infrastructure, Inc.
(Cogent) purchased and acquired all of Sprint’s Franchise assets from T-Mobile. Sprint
will continue in existence and operation after this transaction as a Cogent subsidiary; and
WHEREAS, since it has acquired Sprint from T-Mobile, Cogent accordingly seeks
to transfer the Franchise from Sprint (as a T-Mobile subsidiary) to Sprint (as a Cogent
subsidiary). Because Cogent’s acquisition of Sprint from T-Mobile changes Sprint’s
ownership, ACC 20.02.290.G and Section 18 of the Franchise require Cogent to obtain
City consent to the Franchise transfer; and
WHEREAS, to obtain City consent, Cogent submitted the required City application
and documentation supporting its transfer request. The City has reviewed Cogent’s
application and documentation, and has determined that it is sufficient to permit Cogent’s
intended Franchise transfer.
Page 67 of 87
--------------------------------
Ordinance No. 6932
FRN21-0003
January 24, 2024
Page 2 of 3 Rev. 08/23
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section 1. Consent to Franchise Transfer. Subject to the terms and
conditions in this Ordinance and in Ordinance No. 6887, Franchise Agreement No.
FRN21-0003 (Franchise), the City consents to a transfer of the Franchise from Sprint
Communications Company, L.P. (as a wholly owned T-Mobile USA, Inc. subsidiary) to
Sprint Communications Company, L.P. (as a wholly owned Cogent Infrastructure, Inc.
subsidiary).
Section 2. Conditions of Franchise Transfer. In addition to all other Franchise
conditions, the transfer in this Ordinance is subject to the following:
A. Cogent shall update Section 3 of the Franchise with its notice information
(including its emergency contact information) with the City; and
B. Cogent must submit payment of all outstanding Franchise transfer application
fees required in the City Fee Schedule.
Cogent must complete these conditions within 30 days after the effective date of this
Ordinance or the City’s consent to the Franchise transfer in Section 1 of this Ordinance
will be null and void.
Section 3. Implementation. The Mayor is authorized to implement those
administrative procedures necessary to carry out the directives of this legislation.
Section 4. Severability. The provisions of this ordinance are declared to be
separate and severable. The invalidity of any clause, sentence, paragraph, subdivision,
section, or portion of this ordinance, or the invalidity of the application of it to any person
Page 68 of 87
--------------------------------
Ordinance No. 6932
FRN21-0003
January 24, 2024
Page 3 of 3 Rev. 08/23
or circumstance, will not affect the validity of the remainder of this ordinance, or the validity
of its application to other persons or circumstances.
Section 5. Effective date. This Ordinance will take effect and be in force five
days from and after its passage, approval, and publication as provided by law.
INTRODUCED: _______________
PASSED: ____________________
APPROVED: _________________
____________________________
NANCY BACKUS, MAYOR
ATTEST:
____________________________
Shawn Campbell, MMC, City Clerk
APPROVED AS TO FORM:
____________________________
Harry Boesche, Acting City Attorney
Published: ________________
Page 69 of 87
ORDINANCE NO. 6887
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, GRANTING TO
SPRINT COMMUNICATIONS COMPANY, L.P. A
DELAWARE CORPORATION, A FRANCHISE FOR
TELECOMMUNICATIONS.
WHEREAS, Sprint Communications Company, L.P ("Franchisee") has
applied to the City of Auburn ("City") for a non-exclusive Franchise for the right of
entry, use, and occupation of certain public ways within the City, expressly to
install, construct, erect, operate, maintain, repair, relocate and remove its facilities
in, on, over, under, along and/or across those public ways; and
WHEREAS, following proper notice, the City Council held a public hearing
on Franchisee's request for a Franchise; and
WHEREAS, based on the information presented at such public hearing, and
from facts and circumstances developed or discovered through independent study
and investigation, the City Council now deems it appropriate and in the best
interest of the City and its inhabitants to grant the franchise to Franchisee.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN
WASHINGTON, DO ORDAIN as follows:
Section 1. Grant of Right to Use Franchise Area
A. Subject to the terms and conditions stated in this Agreement, the City
grants, to the Franchisee general permission to enter, use, and occupy the
Franchise Area specified in Exhibit "A", attached hereto and incorporated by
reference. Franchisee may locate the Franchisee's Facilities within the Franchise
Area subject to all applicable laws, regulations, and permit conditions.
B. The Franchisee is authorized to install, remove, construct, erect,
operate, maintain, relocate, upgrade, replace, restore, and repair Franchisee's
Facilities to provide Franchisee's Services in the Franchise Area.
C. This Franchise does not authorize the use of the Franchise Area for
any facilities or services other than Franchisee Facilities and Franchisee Services,
and it extends no rights or privilege relative to any facilities or services of any type,
including Franchisee Facilities and Franchisee Services, on public or private
property elsewhere within the City.
D. This Franchise is non-exclusive and does not prohibit the City from
entering into other agreements, including Franchises, impacting the Franchise
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Area, for any purpose that does not interfere with Franchisee's rights under this
Franchise.
E. Except as explicitly set forth in this Agreement, this Franchise does
not waive any rights that the City has or may acquire with respect to the Franchise
Area or any other City roads, public ways, or property. This Franchise will be
subject to the power of eminent domain, and in any proceeding under eminent
domain, the Franchisee acknowledges its use of the Franchise Area shall have no
value.
F. The City reserves the right to change, regrade, relocate, abandon, or
vacate any public way within the Franchise Area. If, at any time during the term of
this Franchise, the City vacates any portion of the Franchise Area containing
Franchisee Facilities, the City shall reserve an easement for public utilities within
that vacated portion, pursuant to Chapter 35.79.030 RCW, within which the
Franchisee may continue to operate any existing Franchisee Facilities under the
terms of this Franchise for the remaining period set forth under Section 4.
G. The Franchisee agrees that its use of Franchise Area shall at all
times be subordinated to and subject to the City and the public's need for municipal
infrastructure, travel, and access to the Franchise Area, except as may be
otherwise required by law.
Section 2. Definitions
For the purpose of this agreement and enforcement thereof, definitions of words
and phrases shall be in accordance with Auburn City Code 20.02.020. In addition,
the following definitions apply:
A. "ACC" means the Auburn City Code.
B. "Franchise Area" means the public ways as specified in Exhibit "A".
Franchise Area does not include private property located outside of the public way
which the Franchisee may utilize, lease, or otherwise use for placement of
Franchisee Facilities with authorization or other permissions from third parties, and
including any necessary permits from any regulatory authority.
C. "Franchisee's Facilities" means fiber optic and broadband
communications services constructed and operated within the Franchise Area
including all cables, wires, conduits, ducts, pedestals, and any associated
converter equipment or other items necessary for Telecommunications Services
as defined in Chapter 35.99.010(7) RCW, that are located in the Franchise Area.
Franchisee's Facilities do not include facilities used to provide wireless services,
including antennas or other equipment, appliances, attachments and
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appurtenances associated with wireless telecommunications facilities.
Franchisee's facilities do not include small wireless facilities, microcell, minor
facility, or small cell facilities, as defined in Chapter 80.36.375 RCW. Franchisee's
facilities do not include any facilities that are not located within the Franchise Area
or that are covered under a separate Franchise Agreement or agreement.
D. "Franchisee's Services" means any telecommunications service,
telecommunications capacity, or dark fiber, provided by the Franchisee using
Franchisee's Facilities in the Franchise Area, including, but not limited to, the
transmission of voice, data or other electronic information, or other subsequently
developed technology that carries a signal over fiber optic cable. Franchisee's
Services will also include non-switched, dedicated and private line, high capacity
fiber optic transmission services to firms, businesses or institutions within the
Franchise Area and other lawful services not prohibited by this Ordinance
However, Franchisee's Services will not include the provision of "cable services",
as defined by 47 U.S.C. §522, as amended, for which a separate franchise would
be required.
Section 3. Notice
A. Written notices to the parties shall be sent by a nationally recognized
overnight courier or by certified mail to the following addresses, unless a different
address is designated in writing and delivered to the other party. Any such notice
shall become effective upon receipt by certified mail, confirmed delivery by
overnight courier.
City:Right-of-Way Specialist,
Public Works Department - Transportation
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Telephone: (253) 931-3010;
with a copy to: City Clerk
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Franchisee: Sprint Communications Company L.P.
Mailstop: KSOPHT0101-Z2040
6220 Sprint Parkway
Overland Park, KS 66251-2650
Attn: Manager, Wireline Real Estate
Telephone: 913-315-3229
Email: ROWRenewals@t-mobile.com
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August 29, 2022
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With a Copy to: Sprint Communications Company L.P. do T-Mobile
Attn: Managing Attorney, Real Estate
12920 SE 38th Street
Bellevue, Washington 98006
B. Any changes to the above-stated Franchisee information shall be
sent to the City's Right-of-Way Specialist, Public Works Department —
Transportation Division, with copies to the City Clerk, referencing the title of this
Agreement.
C. The above-stated Franchisee voice telephone numbers shall be
staffed at least during normal business hours, Pacific time zone. The City may
contact Franchisee at the following number for emergency needs: 800-877-6627,
Option 1, provided, however, that the use of such phone number shall not
constitute notice pursuant to the term of this Agreement.
Section 4. Term of Agreement
A. This Franchise shall run for a period of five (5) years, from the date
of Franchise Acceptance as described in Section 5 of this Agreement. Franchisee
may apply for renewal of this Franchise for one additional five year term by filing a
complete application not less than 180 days before expiration of this Franchise
following the process specified under ACC 20.04 as it now exists or is amended.
B. Automatic Extension. If the Franchisee fails to formally apply for a
new franchise agreement prior to the expiration of this Franchise's term or any
extension thereof, this Franchise automatically continues month to month until a
new franchise agreement is applied for and approved under the then current
process or until either party gives written notice at least one hundred and eighty
180) days in advance of intent to cancel this Franchise.
C. Notwithstanding the above provisions, Franchisee may terminate
this Franchise at any time with 180 days' written notice. Such termination requires
removal of Franchisee's Facilities under ACC 20.02.220.
Section 5. Acceptance of Franchise
A. This Franchise will not become effective until Franchisee files with
the City Clerk (1) the Statement of Acceptance (Exhibit "B"), (2) all verifications of
insurance coverage specified under Section 16, (3) the financial security specified
in Section 17, and (4) payment of any outstanding application fees required in the
City Fee Schedule. These four items will collectively be the "Franchise
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Acceptance". The date that such Franchise Acceptance is filed with the City Clerk
will be the effective date of this Franchise.
B. If the Franchisee fails to file the Franchise Acceptance with the City
Clerk within thirty (30) days after the effective date of the ordinance approving the
Franchise as described in Section 28 of this Agreement, the City's grant of the
Franchise will be null and void.
Section 6. Construction and Maintenance
A. The Franchisee shall apply for, obtain, and comply with the terms of
all permits required under applicable law for any work done within the City.
Franchisee will comply with all applicable City, State, and Federal codes, rules,
regulations, and orders in undertaking such work.
B. Franchisee agrees to coordinate its activities with the City and all
other utilities located within the public way within which Franchisee is undertaking
its activity.
C. The City expressly reserves the right to prescribe how and where
Franchisee's Facilities will be installed within the public way and may require the
removal, relocation and/or replacement thereof in the public interest and safety at
the expense of the Franchisee as provided for in Chapter 35.99 RCW.
D. Before beginning any work within the public way, the Franchisee will
comply with the One Number Locator provisions of Chapter 19.122 RCW to identify
existing utility infrastructure.
E. Tree Trimming. Upon prior written approval of the City the
Franchisee shall have the authority to trim trees upon and overhanging streets,
public ways and places in the Franchise Area so as to prevent the branches of
such trees from coming in physical contact with the Franchisee's Facilities.
Franchisee shall be responsible for debris removal from such activities. If such
debris is not removed within 24 hours, the City may, at its sole discretion, remove
such debris and charge the Franchisee for the cost thereof. This section does not,
in any instance, grant automatic authority to clear vegetation for purposes of
providing a clear path for radio signals. Any such general vegetation clearing will
require other permits as necessary from the city.
Section 7. Trench Repair for Street Restorations.
A. At any time during the term of this Franchise, if a Franchisee Facility
or trench within the Franchise Area causes a street to crack, settle, or otherwise
fail, the City will notify Franchisee of the deficiency and Franchisee agrees to
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restore the deficiency and repair the damage within thirty (30)days of written notice
by the City.
B. For purposes of the Section, "street" shall mean all City owned
improvements within a public way, including, but is not limited to, the following:
pavement, sidewalks, curbing, above and below-ground utility facilities, and traffic
control devices.
Section 8. Repair and Emergency Work
In the event of an emergency, the Franchisee may commence repair and
emergency response work as required under the circumstances. The Franchisee
will notify the City telephonically during normal business hours (at 253-931-3010)
and during non-business hours (at 253-876-1985) as promptly as possible, before
such repair or emergency work commences, and in writing as soon thereafter as
possible. Such notification shall include the Franchisee's emergency contact
phone number for corresponding response activity. The City may commence
emergency response work, at any time, without prior written notice to the
Franchisee, but will notify the Franchisee in writing as promptly as possible under
the circumstances. Franchisee will reimburse the City for the City's actual cost of
performing emergency response work to the extent such emergency response
work is required as a direct result of Franchisee's Facilities. Franchisee will
reimburse the City for Franchisee's proportionate share of any direct and non-
direct emergency response cost incurred by the City where the Franchisee's
Facilities are determined by the City to be a contributing factor to such emergency
response work.
Section 9. Damages to City and Third-Party Property
Franchisee agrees that if any of its actions, or the actions of any person,
agent, or contractor acting on behalf of the Franchisee under this Franchise
impairs or damages any City property, survey monument, or property owned by a
third-party, Franchisee will restore, at its own cost and expense, the property to a
safe condition. Upon returning the property to a safe condition, the property shall
then be returned to the condition it was in immediately prior to being damaged (if
the safe condition of the property is not the same as that which existed prior to
damage). All repair work shall be performed and completed to the satisfaction of
the City Engineer.
Section 10. Location Preference
A. Any structure, equipment, appurtenance or tangible property of a
utility or other franchisee, other than the Franchisee's, which was installed,
constructed, completed or in place prior in time to Franchisee's application for a
permit to construct or repair Franchisee's Facilities under this Franchise shall have
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preference as to positioning and location with respect to the Franchisee's Facilities.
However, to the extent that the Franchisee's Facilities are completed and installed
before another utility or other franchisee's submittal of a permit for new or
additional structures, equipment, appurtenances or tangible property, then the
Franchisee's Facilities will have priority. These rules governing preference shall
continue when relocating or changing the grade of any City road or public way. A
relocating utility or franchisee will not cause the relocation of another utility or
franchisee that otherwise would not require relocation. This Section will not apply
to any City facilities or utilities that may in the future require the relocation of
Franchisee's Facilities. Such relocations will be governed by Section 11 and
Chapter 35.99 RCW.
B. Franchisee will maintain a minimum underground horizontal
separation of five (5) feet from City water, sanitary sewer and storm sewer facilities
and ten (10) feet from above-ground City water facilities; provided, that for
development of new areas, the City, in consultation with Franchisee and other
utility purveyors or authorized users of the public way, will develop guidelines and
procedures for determining specific utility locations.
Section 11. Relocation of Franchisee Facilities
A. Except as otherwise so required by law, Franchisee agrees to
relocate, remove, or reroute Franchisee's Facilities as ordered by the City
Engineer at no expense or liability to the City, except as may be required by
Chapter 35.99 RCW. Pursuant to the provisions of Section 15, Franchisee agrees
to protect and save harmless the City from any customer or third-party claims for
service interruption or other losses in connection with any such change, relocation,
abandonment, or vacation of the public way.
B. If a readjustment or relocation of the Franchisee Facilities is
necessitated by a request from a party other than the City, that party shall pay the
Franchisee the actual costs associated with such relocation.
Section 12. Abandonment and or Removal of Franchisee Facilities
A. Within one hundred and eighty days (180) of Franchisee's
permanent cessation of use of the Franchisee's Facilities, the Franchisee will, at
the City's discretion, either abandon in place or remove the affected facilities.
B. Franchisee may ask the City in writing to abandon, in whole or in
part, all or any part of the Franchisee's Facilities. Any plan for abandonment of
Franchisee Facilities must be approved in writing by the City.
C. The parties expressly agree that this Section will survive the
expiration, revocation or termination of this Franchise.
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August 29, 2022
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Section 13. Undergrounding
A. The parties agree that this Franchise does not limit the City's
authority under federal law, state law, or local ordinance, to require the
undergrounding of utilities.
B. Whenever the City requires the undergrounding of aerial utilities in
the Franchise Area, the Franchisee will underground the Franchisee's Facilities in
the manner specified by the City Engineer at no expense or liability to the City,
except as may be required by Chapter 35.99 RCW. Where other utilities are
present and involved in the undergrounding project, Franchisee will only be
required to pay its fair share of common costs borne by all utilities, in addition to
the costs specifically attributable to the undergrounding of Franchisee's Facilities.
Common costs will include necessary costs for common trenching and utility
vaults. Fair share will be determined in comparison to the total number and size
of all other utility facilities being undergrounded.
Section 14. Franchisee Information
A. Franchisee agrees to supply, at no cost to the City, any information
reasonably requested by the City to coordinate municipal functions with
Franchisee's activities and fulfill any municipal obligations under state law. Said
information will include, at a minimum, as-built drawings of Franchisee's Facilities,
installation inventory, and maps and plans showing the location of existing or
planned facilities within the City. Said information may be requested either in hard
copy or electronic format, compatible with the City's data base system, including
the City's Geographic Information System (GIS) data base. Franchisee will keep
the City informed of its long-range plans for coordination with the City's long-range
plans.
B. The parties understand that Chapter 42.56 RCW and other
applicable law may require public disclosure of information given to the City.
Section 15. Indemnification and Hold Harmless
A. Franchisee shall defend, indemnify, and hold harmless the City, its
officers, officials, employees and volunteers from and against any and all claims,
suits, actions, or liabilities for injury or death of any person, or for loss or damage
to property, which arises out of Franchisee's acts, errors or omissions, or from any
activity, work or thing done, permitted, or suffered by Franchisee arising from or in
connection with this Franchise Agreement, except to the extent those claims, suits,
action, liabilities, losses or damages are caused by the sole negligence or willful
misconduct of the City.
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However, should a court of competent jurisdiction determine that this Agreement
is subject to RCW 4.24.115, then, in the event of liability for damages arising out
of bodily injury to persons or damages to property caused by or resulting from the
concurrent negligence of the Franchisee and the City, its officers, officials,
employees, and volunteers, the Franchisee's liability hereunder shall be only to the
extent of the Franchisee's negligence. It is further specifically and expressly
understood that the indemnification provided herein constitutes the Franchisee's
waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the
purposes of this indemnification. This waiver has been mutually negotiated by the
parties. The provisions of this section shall survive the expiration or termination of
this Agreement.
B. The Franchisee will hold the City harmless from any liability arising
out of or in connection with any damage or loss to the Franchisee's Facilities
caused by maintenance and/or construction work performed by, or on behalf of,
the City within the Franchise Area or any other City road, public way, or other
property, except to the extent any such damage or loss is directly caused by the
negligence of the City, or its agent performing such work.
C. The Franchisee acknowledges that neither the City nor any other
public agency with responsibility for firefighting, emergency rescue, public safety
or similar duties within the City has the capability to provide trench, close trench or
confined space rescue. The Franchisee, and its agents, assigns, successors, or
contractors, will make such arrangements as Franchisee deems fit for the provision
of such services. The Franchisee will hold the City harmless from any liability
arising out of or in connection with any damage or loss to the Franchisee for the
City's failure or inability to provide such services, and, pursuant to the terms of
Section 15(A), the Franchisee will indemnify the City against any and all third-party
costs, claims, injuries, damages, losses, suits, or liabilities based on the City's
failure or inability to provide such services.
Section 16. Insurance
A. The Franchisee shall procure and maintain for the duration of this
Agreement and as long as Franchisee has Facilities in the rights-of-way, insurance
against claims for injuries to persons or damage to property which may arise from
or in connection with the Agreement and use of the public way.
B. No Limitation. The Franchisee's maintenance of insurance as
required by this Agreement shall not be construed to limit the liability of the
Franchisee to the coverage provided by such insurance, or otherwise limit the
City's recourse to any remedy available at law or in equity.
C. Minimum Scope of Insurance. The Franchisee shall obtain
insurance of the types and coverage described below:
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1. Commercial General Liability insurance shall be at least as
broad as ISO occurrence form CG 00 01 and shall cover liability arising from
premises, operations, stop gap liability, products-completed operations,
personal injury and advertising injury, and liability assumed under an
insured contract. There shall' be no exclusion for liability arising from
explosion, collapse or underground property damage. The City shall be
named as a Certificate Holder and included as an additional insured under
the Franchisee's Commercial General Liability insurance policy with respect
this Franchise Agreement using ISO endorsement CG 20 12 05 09 if the
franchise agreement is considered a master permit as defined by RCW
35.99.010, or CG 20 26 07 04 if it is not, or substitute endorsement providing
at least as broad coverage.
2. Automobile Liability insurance covering all owned, non-
owned, hired and leased vehicles. Coverage shall be at least as broad as
Insurance Services Office (ISO) form CA 00 01.
3. Contractors Pollution Liability insurance shall be in effect
throughout the entire Franchise Agreement covering losses caused by
pollution conditions that arise from the operations of the Franchisee.
Contractors Pollution Liability shall cover bodily injury, property damage,
cleanup costs and defense, including costs and expenses incurred in the
investigation, defense, or settlement of claims.
4. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington.
5.Excess or Umbrella Liability insurance shall be excess over
and at least as broad in coverage as the Franchisee's Commercial General
Liability and Automobile Liability insurance. The City shall be included as
an additional insured on the Franchisee's Excess or Umbrella Liability
insurance policy.
D. Minimum Amounts of Insurance. The Franchisee shall maintain the
following insurance limits:
1. Commercial General Liability insurance shall be written with
limits no less than $5,000,000 each occurrence, $5,000,000 general
aggregate.
2. Automobile Liability insurance with a minimum combined
single limit for bodily injury and property damage of $5,000,000 per
accident.
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August 29, 2022
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3. Contractors Pollution Liability insurance shall be written in an
amount of at least$2,000,000 per loss, with an annual aggregate of at least
2,000,000.
4. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington and employer's liability
insurance with limits of not less than $1,000,000.00.
5. Excess or Umbrella Liability insurance shall be written with
limits of not less than $5,000,000 per occurrence and annual aggregate.
The Excess or Umbrella Liability requirement and limits may be satisfied
instead through Franchisee's Commercial General Liability and Automobile
Liability insurance, or any combination thereof that achieves the overall
required limits.
E. Other Insurance Provisions. Franchisee's Commercial General
Liability, Automobile Liability, Excess or Umbrella Liability, Contractors Pollution
Liability insurance policy or policies are to contain, or be endorsed to contain, that
they shall be primary insurance for all alleged and actual negligence and
intentional acts arising out of Franchisee operations as respect to the City. Any
insurance, self-insurance, or self-insured pool coverage maintained by the City
shall be excess of the Franchisee's insurance and shall not contribute with it.
F. Acceptability of Insurers. Insurance is to be placed with insurers with
a current A.M. Best rating of not less than A: VII.
G. Subcontractors and Independent Contractors. The Franchisee shall
cause each and every subcontractor and independent contractor to provide
insurance coverage that complies with all applicable requirements of the
Franchisee-provided insurance as set forth herein, including limits no less than
what is required of Franchisee under this Agreement. The Franchisee shall ensure
that the City is a named certificate holder and included as an additional insured on
each and every subcontractor's and independent contractor's Commercial General
liability insurance policy using an endorsement as least as broad as ISO CG 20
26.
H. Verification of Coverage. The Franchisee shall furnish the City with
original certificates and a copy of the amendatory endorsements, including but not
necessarily limited to the additional insured endorsement, evidencing the
insurance requirements of this Agreement. Upon request by the City, the
Franchisee shall furnish evidence of all subcontractors' and independent
contractors' coverage.
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August 29, 2022
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I.Notice of Cancellation. Franchisee shall provide the City with written
notice of any policy cancellation within two business days of their receipt of such
notice.
J.Failure to Maintain Insurance. Failure on the part of the Franchisee
to maintain the insurance as required shall constitute a material breach of
Agreement, upon which the City may, after giving five business days' notice to the
Franchisee to correct the breach, terminate the Agreement or, at its discretion,
procure or renew such insurance and pay any and all premiums in connection
therewith, with any sums so expended to be repaid to the City on demand.
K. Franchisee — Self-Insurance. Franchisee will have the right to self-
insure any or all of the above-required insurance. Any such self-insurance is
subject to approval by the City. If the Franchisee is self-insured or becomes self-
insured during the term of the Franchise Agreement, Franchisee or its affiliated
parent entity shall comply with the following: (i) provide the City, upon request, a
copy of Franchisee's or its parent company's most recent audited financial
statements, if such financial statements are not otherwise publicly available; (ii)
Franchisee or its parent company is responsible for all payments within the self-
insured retention; and (iii) Franchisee assumes all defense and indemnity
obligations as outlined in Section 15.
Section 17. Financial Security
The Franchisee will provide the City with a financial security in the amount
of Fifty Thousand Dollars ($50,000.00) in the form of a performance bond running
for, or renewable for, the term of this Franchise, in a form and substance
acceptable to the City. If Franchisee fails to substantially comply with any one or
more of the provisions of this Franchise, beyond all applicable notice and cure
periods, the City may recover jointly and severally from the principal and any surety
of that financial security any damages suffered by the City as a result Franchisee's
failure to comply, including but not limited to staff time, material and equipment
costs, compensation or indemnification of third parties, and the cost of removal or
abandonment of facilities Prior to City accessing the Performance Bond, it shall
first give Franchisee written notice of its intention to do so and with that notice shall
provide to Franchisee written documentation of the loss, damage or expense for
which the City seeks compensation from the Performance Bond. Such notice and
documentation shall be provided by City as soon as practicable as determined by
the City, after the date of the occurrence which gives rise to City's claimed loss,
damage or expense. Franchisee specifically agrees that its failure to comply with
the terms of Section 20 will constitute damage to the City in the monetary amount
set forth in that section. Any financial security will not be construed to limit the
Franchisee's liability to the security amount, or otherwise limit the City's recourse
to any remedy to which the City is otherwise entitled at law or in equity.
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August 29, 2022
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Section 18. Successors and Assignees
A. All the provisions, conditions, regulations and requirements
contained in this Franchise are binding upon the successors, assigns of, and
independent contractors of the Franchisee, and all rights and privileges, as well as
all obligations and liabilities of the Franchisee will inure to its successors,
assignees and contractors equally as if they were specifically mentioned herein
wherever the Franchisee is mentioned.
B. This Franchise will not be leased, assigned or otherwise alienated
without the express prior consent of the City by ordinance.
C. Franchisee and any proposed assignee or transferee will provide
and certify the following to the City not less than ninety (90) days prior to the
proposed date of transfer: (a) Complete information setting forth the nature, term
and conditions of the proposed assignment or transfer; (b) All information required
by the City of an applicant for a Franchise with respect to the proposed assignee
or transferee; and, (c) An application fee in the amount established by the City's
fee schedule, plus any other costs actually and reasonably incurred by the City in
processing, and investigating the proposed assignment or transfer.
D. Before the City's consideration of a request by Franchisee to consent
to a Franchise assignment or transfer, the proposed Assignee or Transferee will
file with the City a written promise to unconditionally accept all terms of the
Franchise, effective upon such transfer or assignment of the Franchise. The City
is under no obligation to undertake any investigation of the transferor's state of
compliance and failure of the City to insist on full compliance before transfer does
not waive any right to insist on full compliance thereafter.
Section 19. Dispute Resolution
A. In the event of a dispute between the City and the Franchisee arising
by reason of this Agreement, the dispute will first be referred to the operational
officers or representatives designated by City and Franchisee to have oversight
over the administration of this Agreement. The officers or representatives will meet
within thirty (30) calendar days of either party's request for a meeting, whichever
request is first, and the parties will make a good faith effort to achieve a resolution
of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this manner,
either party may then pursue any available judicial remedies. This Franchise will
be governed by and construed in accordance with the laws of the State of
Washington. If any suit, arbitration, or other proceeding is instituted to enforce any
term of this Agreement, the parties specifically understand and agree that venue
Ordinance No. 6887
Franchise Agreement No. FRN21-0003
August 29, 2022
Page 13 of 18
Page 82 of 87
will be exclusively in King County, Washington. The prevailing party in any such
action will be entitled to its attorneys' fees and costs.
Section 20. Enforcement and Remedies
A. If the Franchisee willfully violates, or fails to comply with any of the
provisions of this Franchise through willful or unreasonable negligence, or fails to
comply with any notice given to Franchisee under the provisions of this agreement,
the City may, at its discretion, provide Franchisee with written notice to cure the
breach within thirty (30) days of notification. If the City determines the breach
cannot be cured within thirty days, the City may specify a longer cure period, and
condition the extension of time on Franchisee's submittal of a plan to cure the
breach within the specified period, commencement of work within the original thirty
day cure period, and diligent prosecution of the work to completion. If the breach
is not cured within the specified time, or the Franchisee does not comply with the
specified conditions, the City may, at its discretion, either (1) revoke the Franchise
with no further notification, or (2) claim damages of Two Hundred Fifty Dollars
250.00) per day against the financial security set forth in Section 17 for every
day after the expiration of the cure period that the breach is not cured.
B. If the City determines that Franchisee is acting beyond the scope of
permission granted in this Franchise for Franchisee Facilities and Franchisee
Services, the City reserves the right to cancel this Franchise and require the
Franchisee to apply for, obtain, and comply with all applicable City permits,
franchises, or other City permissions for such actions, and if the Franchisee's
actions are not allowed under applicable federal and state or City laws, to compel
Franchisee to cease those actions.
Section 21. Compliance with Laws and Regulations
A. This Franchise is subject to, and the Franchisee will comply with all
applicable federal and state or City laws, regulations and policies (including all
applicable elements of the City's comprehensive plan), in conformance with federal
laws and regulations, affecting performance under this Franchise. The Franchisee
will be subject to the police power of the City to adopt and enforce general
ordinances necessary to protect the safety and welfare of the general public in
relation to the rights granted in the Franchise Area.
B. The City reserves the right at any time to amend this Franchise to
conform to any federal or state statute or regulation relating to the public health,
safety, and welfare, or relating to roadway regulation, or a City Ordinance enacted
pursuant to such federal or state statute or regulation enacted, amended, or
adopted after the effective date of this Franchise if it provides Franchisee with thirty
30) days written notice of its action setting forth the full text of the amendment and
identifying the statute, regulation, or ordinance requiring the amendment. The
Ordinance No. 6887
Franchise Agreement No. FRN21-0003
August 29, 2022
Page 14 of 18
Page 83 of 87
amendment will become automatically effective on expiration of the notice period
unless, before expiration of that period, the Franchisee makes a written call for
negotiations over the terms of the amendment. If the parties do not reach
agreement as to the terms of the amendment within thirty (30) days of the call for
negotiations, the City may enact the proposed amendment, by incorporating the
Franchisee's concerns to the maximum extent the City deems possible.
C. The City may terminate this Franchise upon thirty (30) days written
notice to the Franchisee, if the Franchisee fails to comply with such amendment or
modification.
Section 22. License, Tax and Other Charges
This Franchise will not exempt the Franchisee from any future license, tax,
or charge which the City may adopt under authority granted to it under state or
federal law for revenue or as reimbursement for use and occupancy of the
Franchise Area.
Section 23. Consequential Damages Limitation
Notwithstanding any other provision of this Agreement, in no event will
either party be liable for any special, incidental, indirect, punitive, reliance,
consequential or similar damages.
Section 24. Severability
If any portion of this Franchise is deemed invalid, the remainder portions
will remain in effect.
Section 25. Titles
The section titles used are for reference only and should not be used for the
purpose of interpreting this Franchise.
Section 26. Implementation.
The Mayor is authorized to implement those administrative procedures
necessary to carry out the directions of this legislation.
Section 27. Entire Agreement
This Agreement, as subject to the appropriate city, state, and federal laws,
codes, and regulations, and the attachments hereto represent the entire
understanding and agreement between the parties with respect to the subject
matter and it supersedes all prior oral negotiations between the parties. All
Ordinance No. 6887
Franchise Agreement No. FRN21-0003
August 29, 2022
Page 15 of 18
Page 84 of 87
previous agreements between the parties pertaining to Franchisee's operation of
Franchisee's Facilities are hereby superseded.
Section 28. Effective date.
This Ordinance will take effect and be in force five days from and after its
passage, approval and publication as provided by law.
INTRODUCED:
S® 9.022 2022
PASSED:
NOV O 72022APPROVED:
R1:
i1S,10#
ATTEST:
Shawn Campbe , ity C erk
APPROVED AS TO FORM:
Kendra Comeau, City Attorney
Published: 10[011\06
IV4'
20-1- Th-The52 UG Tnes
Ordinance No. 6887
Franchise Agreement No. FRN21-0003
August 29, 2022
Page 16 of 18
Page 85 of 87
DocuSign Envelope ID.65337A95-E523-417F-968A-8249DA3419AD
EXHIBIT "A"
FRANCHISE AREA
Sprint fiber optic cable is located in the Union Pacific Railroad Road property that
runs north/south through the City and occupies Five Hundred and Forty-Two
542) +/- linear feet of City public way through six east/west road crossings
pursuant to City of Auburn, WA Public Works Department ROW Use Permit No.
87-02 issued September 15, 1987. The specific crossing locations that make up
the Franchise Area are adjacent to the Union Pacific Rail line and are as follows:
1. Crossing at S 277th Street, 80 feet 4 inches.
2. Crossing S 285th Street (aka 44th Street NW), 110 feet 4 inches.
3. Crossing 37th Street NW, 90 feet 4 inches.
4. Crossing 29th Street NW, 30 feet.
5. Crossing West Main Street, 90 feet 4 inches.
6. Crossing 15th Street SW, 140 feet 4 inches.
Ordinance No. 6887
Franchise Agreement No. FRN21-0003
August 29, 2022
Page 17 of 18
Page 86 of 87
DocuSign Envelope ID:65337A95-E523-417F-968A-8249DA3419AD
EXHIBIT "B"
STATEMENT OF ACCEPTANCE
Sprint Communications Company L.P., for itself, its successors and
assigns, hereby accepts and agrees to be bound by all lawful terms, conditions
and provisions of the Franchise attached hereto and incorporated herein by this
reference.
Franchisee Name:_Sprint Communications Company L:P.
Address: 6200 Sprint Parkway; KSOPHD1010-Z2040
City, State, Zi.•• Overland Park, Kansas 66251
B jA, bate: 1 (..2g . 22
Namepike Simpson
Title: SVP and Chief Procurement Officer oi°YeSL9e AI pproval'
e-vi.w frowohai
nn Magri'''.
Senior Corporate Counsel
STATE OF .
sS. :
COUNTY OF / W
On this day of A/jI/PJi1/&Jr , 2022, before me the undersigned, a
Notary Public in and for the State of WR-: . , duly commissioned and sworn,
personally appeared, Ake 51.11/67y-k ': : of r nb/719 , the company that
executed the within and foregoing instrument, and acknowledged the said
instrument to be the free and voluntary act and deed of said company, for the uses
and purposes therein mentioned, and on oath stated that he/she is authorized to
execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affix_ed my official seal
on the date hereinabove set forth.
V q0/
Notary
JIM E BAKERtgiliaturePublic
State of Washington
im 7/ I Commission#206994
My Comm. Expires May 2, 2023NOTTAIYPUBLICinandfortheStateof
residing at - 0/s0 Ur?. - >f6.141/t)
MY COMMISSION EXPIRES: /4a
Ordinance Na. 6887
Franchise Agreement No. FRN21-0003
August 29, 2022
Page 18 of 18
Page 87 of 87