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HomeMy WebLinkAbout10-21-2013 CITY COUNCIL AGENDA PACKET City Council Meeting October 21, 2013 - 7:30 PM Auburn City Hall AGENDA Watch the meeting video Meeting videos are not available until 72 hours after the meeting has concluded. I.CALL TO ORDER A.Flag Salute B.Roll Call C.Announcements, Appointments, and Presentations D.Agenda Modifications II.CITIZEN INPUT, PUBLIC HEARINGS & CORRESPONDENCE A.Public Hearings 1. Public Hearing on Moratorium Established by Resolution 4992* (Backus/Heid) Resolution No. 4992, adopted September 16, 2013, established an initial one year moratorium prohibiting the City from accepting or processing applications for business licenses and other licenses, permits and approvals for marijuana/cannabis related businesses and uses in all zoning districts in the city of Auburn and set today's date for a public hearing on the moratorium. (RECOMMENDED ACTION: City Council conduct the public hearing and confirm the moratorium and the findings outlined in Resolution No. 4992.) B.Audience Participation This is the place on the agenda where the public is invited to speak to the City Council on any issue. Those wishing to speak are reminded to sign in on the form provided. C.Correspondence There is no correspondence for Council review. III.COUNCIL COMMITTEE REPORTS A.Municipal Services 1. October 14, 2013 Minutes* (Peloza) B.Planning & Community Development 1. October 14, 2013 Minutes* (Backus) Page 1 of 246 C.Public Works 1. October 7, 2013 Minutes* (Wagner) D.Finance 1. October 7, 2013 Minutes* (Partridge) E.Les Gove Community Campus 1. October 10, 2013 Minutes* (Wagner) F.Council Operations Committee IV.CONSENT AGENDA 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. October 7, 2013 Regular Meeting Minutes* B. Claims Vouchers (Partridge/Coleman) Claims voucher numbers 425614 through 425853 in the amount of $7,403,386.03 and dated October 21, 2013. C. Payroll Vouchers (Partridge/Coleman) Payroll check numbers 534156 through 534193 in the amount of $915,812.51 and electronic deposit transmissions in the amount of $1,276,753.01 for a grand total of $2,192,565.52 for the period covering October 3, 2013 to October 16, 2013. D. Public Works Project No. C0915* (Wagner/Dowdy) City Council approve Final Pay Estimate No. 8 to Contract No. 12-04 in the amount of $0.00 and accept construction of Project No. CP0915, Well 1 Transmission Main E. Public Works Project No. CP1003* (Peloza/Faber) City Council approve final pay estimate and accept completed construction of Lea Hill Park Project, Contract No. 12-13, to Bargmann Enterprises, LLC. F. Call for Public Hearing - 2013-2014 Biennial Budget Mid-biennial Review (Partridge/Coleman) City Council to call for a second public hearing to be held November 4, 2013 to receive public comments and suggestions with regard to the proposed mid- biennial modifications to the 2013-2014 adopted Biennial Budget. (RECOMMENDED ACTION: City Council approve the Consent Agenda.) V.UNFINISHED BUSINESS There is no unfinished business. VI.NEW BUSINESS There is no new business. VII.RESOLUTIONS Page 2 of 246 A. Resolution No. 4995* (Partridge/Dowdy) A Resolution of the City Council of the City of Auburn, Washington, declaring certain items of property as surplus and authorizing their disposal (RECOMMENDED ACTION: City Council adopt Resolution No. 4995.) B. Resolution No. 4996* (Wagner/Dowdy) A Resolution of the City Council of the City of Auburn, Washington, authorizing the Mayor to execute a Payback Agreement between the City of Auburn and SFGVI Properties LLC for Developer's Sanitary Sewer Extension (RECOMMENDED ACTION: City Council adopt Resolution No. 4996.) C. Resolution No. 4997* (Peloza/Coleman) A Resolution of the City Council of the City of Auburn, Washington, authorizing the acceptance of grant funds in the amount of One Hundred Eight Thousand Eight Hundred Sixty-nine Dollars ($108,869.00), and authorizing the Mayor to execute an interlocal agreement between the Department of Ecology and the City of Auburn to accept said funds for implementation of the 2013-2015 Coordinated Prevention Grant Program (RECOMMENDED ACTION: City Council adopt Resolution No. 4997.) D. Resolution No. 4998* (Wagner/Dowdy) A Resolution of the City Council of the City of Auburn, Washington, authorizing the Mayor and City Clerk to execute a contract between the City of Auburn and the City of Algona for decant facilities usage and street sweeping services (RECOMMENDED ACTION: City Council adopt Resolution No. 4998.) VIII. REPORTS 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 Mayor IX.ADJOURNMENT 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. *Denotes attachments included in the agenda packet. Page 3 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: Public Hearing on Moratorium Established by Resolution 4992 Date: October 15, 2013 Department: Administration Attachments: Public Hearing Notice Res 4992 Proposed Rules I502 Chapeter 69.51A Budget Impact: $0 Administrative Recommendation: City Council conduct the public hearing and confirm the moratorium and the findings outlined in Resolution No. 4992. Background Summary: Resolution No. 4992, adopted September 16, 2013, established an initial one year moratorium prohibiting the City from accepting or processing applications for business licenses and other licenses, permits and approvals for marijuana/cannabis related businesses and uses in all zoning districts in the City of Auburn. The Washington State Legislature approved Engrossed Second Substitute Senate Bill (E2SSB) 5073, effective July 22, 2011, that allows cannabis to be grown in collective gardens. Parts of this Bill were vetoed by the Governor, leaving other parts of the Bill vulnerable to inconsistent interpretation. Washington Initiative 502 (I-502), and initiative "on marijuana reform" was passed by the voters on the November 2012 general ballot. This initiative called for regulations for marijuana activities to be promulgated by the Washington State Liquor Control Board. Draft regulations are being circulated for review, and these regulations and the initiative contain terms that are different than E2SSB 5073. The City of Auburn does not currently have any specific provisions in its business licensing codes and its zoning and land use codes addressing the use of marijuana/cannabis or activities related thereto, as would be encompassed by either E2SSB 5073 or I-502. In order to fully consider the potential negative impacts of any future use of property for such use of marijuana/cannabis or activities related thereto in the City of Auburn, and in order to fully consider all the options and alternatives for local regulations, the City needs time to complete such reviews. RCW 35A.63.220 and 36.70A.390 authorize cities to adopt moratoria for such purposes. AUBURN * MORE THAN YOU IMAGINEDPH.1 Page 4 of 246 Reviewed by Council Committees: Planning And Community Development Councilmember:Backus Staff:Heid Meeting Date:October 21, 2013 Item Number:PH.1 AUBURN * MORE THAN YOU IMAGINEDPH.1 Page 5 of 246 CITY OF AUBURN NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that a public hearing will be held before the Auburn City Council at 7:30 PM on Monday, October 21, 2013, in the Council Chambers located on the first floor of Auburn City Hall, 25 West Main Street, Auburn, Washington, 98001 on the following: MORATORIUM Resolution No. 4992, adopted September 16, 2013, establishes an initial one year moratorium prohibiting the City from accepting or processing applications for business licenses and other licenses, permits and approvals for marijuana/cannabis related businesses and uses in all zoning districts in the City of Auburn. The Washington State Legislature approved Engrossed Second Substitute Senate Bill (E2SSB) 5073, effective July 22, 2011, that allows cannabis to be grown in collective gardens. Parts of this Bill were vetoed by the Governor, leaving other parts of the Bill vulnerable to inconsistent interpretation. Washington Initiative 502 (I-502), and initiative "on marijuana reform" was passed by the voters on the November 2012 general ballot. This initiative called for regulations for marijuana activities to be promulgated by the Washington State Liquor Control Board. Draft regulations are being circulated for review, and these regulations and the initiative contain terms that are different than E2SSB 5073. The City of Auburn does not currently have any specific provisions in its business licensing codes and its zoning and land use codes addressing the use of marijuana/cannabis or activities related thereto, as would be encompassed by either E2SSB 5073 or I-502. In order to fully consider the potential negative impacts of any future use of property for such use of marijuana/cannabis or activities related thereto in the City of Auburn, and in order to fully consider all the options and alternatives for local regulations, the City needs time to complete such reviews. RCW 35A.63.220 and 36.70A.390 authorize cities to adopt moratoria for such purposes. Non-English speaking residents wishing to review documents pertaining to this issue should contact the City of Auburn City Clerk’s Office. Citizens with speech, sight or hearing disabilities wishing to review documents should contact the City of Auburn within 10 calendar days prior to the Council meeting, as to the type of service or equipment needed. Each request will be considered individually according to the type of request, the availability of resources and the financial ability of the City to provide the requested services or equipment. Written comments and/or suggestions may be sent to the City of Auburn, c/o Auburn City Clerk, 25 W. Main Street, Auburn, 98001, or faxed to (253)804-3116. -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (Do not publish below this line.) Publish in the Seattle Times on Thursday, October 10, 2013 PH.1 Page 6 of 246 RESOLUTION NO. 4 9 9 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, ESTABLISHING A MORATORIUM ON ACCEPTANCE OR PROCESSING OF APPLICATIONS FOR BUSINESS LICENSES AND OTHER LICENSES, PERMITS AND APPROVALS FOR MARIJUANA/CANNABIS RELATED BUSINESSES AND USES WHEREAS, Washington State's Initiative 502 (1-502) was an initiative to the Washington State Legislature seeking reform of the laws in this state on marijuana, which Initiative appeared on the November 2012 general election ballot, and was passed by a margin of approximately 56 percent to 44 percent; and WHEREAS, notwithstanding the State Initiative, the City of Auburn has in its City Code a provision that precludes enactment of city ordinances that are in conflict with state or federal law, as follows. 1 04.060 Conflict of ordinances with state or federal law. All ordinances and city code provisions, and regulations therein, shall not be in conflict with all other regulations and/or requirements of state and federal law, insofar as not permitting or allowing any action, use or conduct which is in violation of or prohibited by any state or federal laws, regulations or codes. Any such provisions that cannot be implemented or enforced because of provisions of state or federal law, or that cannot be reconciled with any state or federal law, shall be deemed to be in conflict therewith. Any provisions of city ordinances or of the city code deemed by the city council to be in conflict with state or federal law shall be null and void This provision does not allow any action, use or conduct which is in violation of any local, state or federal laws, regulations, codes and/or ordinances. Any action, use or conduct which is not permitted or allowed is prohibited (Ord 6416 § 3, 2012.) and WHEREAS, notwithstanding the State Initiative, there are clear conflicts between the State and Federal law on marijuana/cannabis, as cannabis is still classified as a schedule I controlled substance under federal law and subject to federal prosecution under the doctrine of dual sovereignty; and Resolution No. 4992 September 10, 2013 Page 1 of 7PH.1 Page 7 of 246 WHEREAS, in addition to the conflict between the State Initiative and Federal law, the practices of those involved in marketing marijuana/cannabis products are changing, so that how certain things would be addressed by the State of Washington is in flux and fraught with uncertainties, and WHEREAS, following the passage of 1-502, the State of Washington has moved forward with the development of processes and regulations for marijuana licenses, requirements for an application process and for reporting, and other requirements for marijuana/cannabis related businesses, and WHEREAS, Chapter 69 51A of the Revised Code of Washington (RCW), most recently amended by Laws of the State of Washington, Chapter 181 in 2011, contains provisions regarding medical cannabis that are not addressed in the State Initiative These most recent amendments, combined with the State Initiative, appear to create a two tiered" system regarding marijuana/cannabis, depending on whether the use is recreational or medical There continues to be uncertainty as to how to reconcile the differences between recreational and medical cannabis WHEREAS, it is appropriate that the (currently "draft") provisions of the Washington Administrative Code (WAC) — Chapter 314-55 WAC — be thoroughly evaluated in terms of what they mean for the City of Auburn, how the City should address these State regulations and the possible effect on Chapter 69 51A RCW; and WHEREAS, the City of Auburn does not currently have a specific provision in its zoning and land use codes addressing the use of property for marijuana/cannabis related businesses or medical marijuana, and Resolution No. 4992 September 10, 2013 Page 2 of 7PH.1 Page 8 of 246 WHEREAS, in conformity with the responsibilities of the City of Auburn to provide for zoning and land use regulations pursuant to state law, and the City's authority to regulate land use activity within its corporate limits, the City intends to explore and evaluate how it can develop appropriate zoning and land use regulations for marijuana/cannabis related businesses and medical marijuana related activities, and WHEREAS, the City Council understands, based on information compiled by other jurisdictions and publicly available, that the secondary impacts associated with marijuana/cannabis related businesses and medical marijuana related activities could include crimes against the businesses themselves as a result of the products maintained on the site, increased criminal activity in areas around the businesses, loss of revenue for neighboring businesses, and exposure of marijuana/cannabis products to minors, and WHEREAS, the City Council further understands, based on information compiled by other jurisdiction and publicly available, that indiscriminately and inappropriately allowing state licensed marijuana/cannabis related businesses to be located within the City may result in diminution of real estate property values, and may, as well, result in adverse impacts to the affected neighborhoods, and WHEREAS, to avoid or minimize the potential negative impacts of any future use of property for such marijuana/cannabis related businesses in the City of Auburn, it will be necessary for there to be City regulations in place to 1) properly review and assess the impacts a marijuana/cannabis related business may have on the City and the immediate neighborhood; and 2) determine reasonable and appropriate measures to be taken to mitigate those identified negative impacts, and Resolution No. 4992 September 10, 2013 Page 3 of 7PH.1 Page 9 of 246 WHEREAS, in order to fully consider all the options and alternatives for such regulations, including evaluation of State regulations, and to fully investigate and review all of the factors involved in developing potential appropriate regulation of marijuana/cannabis related businesses, the City needs time to complete such reviews and put into place such regulations prior to accepting applications for siting State licensed marijuana/cannabis related businesses and medical marijuana related activities, and WHEREAS, RCW Sections 35A.63.220 and 36 70A.390 authorize cities to adopt moratoria; and WHEREAS, consistent with the provisions of RCW 35A.63.220, it is appropriate for the City Council to hold public hearings and to authorize the holding of public hearings and/or other means to gather information and adopt findings of fact supporting and justifying the moratorium, and to implement a work plan for review of the issues related to marijuana/cannabis related businesses in the development of the City's business and land use regulations. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, HEREBY RESOLVES as follows. Section 1 Moratorium Established Pursuant to RCW 35A.63.220, a moratorium is hereby imposed prohibiting the City from receiving and/or processing any applications for any marijuana/cannabis related business in any and all zoning districts in the City of Auburn. For the purposes hereof, marijuana/cannabis related businesses includes any activities licensable by the State and/or activities addressed by 1-502 or by Resolution No. 4992 September 10, 2013 Page 4 of 7PH.1 Page 10 of 246 other State Law regarding commercial, recreation and medical marijuana growing operations, collective gardens, and activities related thereto. Section 2. Term of Moratorium. The moratorium imposed by this resolution shall become effective on the date hereof, and shall continue in effect for an initial period of one year, unless repealed, extended or modified by the City Council after subsequent public hearing(s) and entry of appropriate findings of fact pursuant to RCW 35A.63.220, provided that the moratorium shall automatically expire upon the effective date of zoning and land use regulations adopted by the City Council to address the implementation of the State's licensing of any marijuana/cannabis related business to be located in the City of Auburn. Section 3 Preliminary Findings The following preliminary findings of fact are hereby adopted: A. That marijuana/cannabis related businesses have the potential for significant impacts on neighborhoods and the community B That because of the potential impacts of these marijuana/cannabis related businesses, special care and attention needs to be employed in evaluating, considering and developing appropriate legislation that satisfactorily addresses the concerns of the City while also conforming to legal requirements. C It is appropriate to collect and compile documentation, information, testimony and statements of concerned citizens of the City and of other persons interested in or familiar with the issues of transitory accommodations and their impacts to fully explore ways to protect the City and its citizens from the adverse impacts of marijuana/cannabis related businesses. Section 4 Conclusion. Based on the above Findings of Fact, the City Council concludes that the City has the authority to establish a moratorium, and that it is necessary to establish a moratorium, concerning the establishment, operation, and processing of applications for marijuana/cannabis related businesses, to act as a stop- gap measures in order to 1) to provide the City with an opportunity to study the issues concerning the siting of such State licensed marijuana/cannabis related businesses and prepare appropriate revisions to the City's codes and regulations, and 2) to protect the Resolution No. 4992 September 10, 2013 Page 5 of 7PH.1 Page 11 of 246 health, safety and welfare of the citizens of Auburn by ameliorating negative impacts of marijuana/cannabis related businesses. Section 5 Work Plan.The following work plan is adopted to address the issues involving marijuana/cannabis related business regulations. A. That the City of Auburn Planning Commission shall be authorized and directed to hold public hearings and public meetings to fully receive and consider statements, testimony, positions and other documentation or evidence related to the issue of marijuana/cannabis related businesses. B That the Planning Commission and City staff are authorized and directed to review the experiences of other jurisdictions, the status of legal cases, and statistical data, information, studies and other evidence compiled by other municipalities, of adverse impacts of marijuana/cannabis related businesses, and to review State and Federal law and regulations and the regulations, ordinances and codes adopted and implemented by other municipalities to address marijuana/cannabis related business land uses, and any other information that is pertinent to consideration of marijuana/cannabis related businesses. C That the City of Auburn Planning Commission shall work with City staff and the citizenry of the City to develop proposals for regulation of marijuana/cannabis related business land uses and zoning considerations, to be forwarded in their recommendations to the City Council for inclusion in ordinances and ultimate adoption as a part of the City Code of the City of Auburn. D That the Mayor, in consultation with the City Attorney, Planning & Development Director, the Police Chief and other staff, shall periodically advise and report to the City Council as to the status of hearings, meetings and information development regarding activities of the Planning Commission and City staff relative to the evaluation, consideration and development of regulations related to marijuana/cannabis related business land uses, with such reports to be scheduled approximately every six (6) months or as appropriate throughout the period of the moratorium and any extensions thereof, until adoption of a comprehensive ordinance as developed, relating to marijuana/cannabis related business land uses becoming effective in conjunction with the termination of the moratorium referred to in this Resolution. Section 6 Public Hearing. A public hearing shall /bye scheduled for 7 30 p.m or as soon thereafter as the matter may be heard, on the 9 1 day of 2013, in City Council Chambers, 25 West Main Street, Auburn, Washington 98001, to Resolution No 4992 September 10, 2013 Page 6 of 7PH.1 Page 12 of 246 hear and consider the comments and testimony of those wishing to speak at such public hearing regarding the moratorium. Section 7 Severability If any sections, sentence, clause or phrase of this Resolution shall be held to be invalid or unconstitutional by a court of competent jurisdiction, or its application held inapplicable to any person, property or circumstance, such invalidity or unconstitutionality or inapplicability shall not effect the validity or constitutionality of any other section, sentence, clause or phrase of this Resolution or its application to any other person, property or circumstance Section 8 Effective Date.That this Resolution shall take effect and be in full force upon passage and signatures hereon. Dated and Signed this -V day of,yt s. 2013 CITY A PET R B LEWIS, MAYOR ATTEST Danielle E. Daskam, City Clerk APPR D FORM: D B Hei ity At orney Resolution No 4992 September 10, 2013 Page 7 of 7PH.1 Page 13 of 246 Chapter 314-55 WAC MARIJUANA LICENSES, APPLICATION PROCESS, REQUIREMENTS, AND REPORTING NEW SECTION WAC 314-55-005 What is the purpose of this chapter? The purpose of this chapter is to outline the application process, qualifications and requirements to obtain and maintain a marijuana license and the reporting requirements for a marijuana licensee. NEW SECTION WAC 314-55-010 Definitions. Following are definitions for the purpose of this chapter. Other definitions are in RCW 69.50.101. (1) "Applicant" or "marijuana license applicant" means any person or business entity who is considered by the board as a true party of interest in a marijuana license, as outlined in WAC 314-55-035. (2) "Batch" means a quantity of marijuana-infused product con- taining material from one or more lots of marijuana. (3) "Business name" or "trade name" means the name of a licensed business as used by the licensee on signs and advertising. (4) "Child care center" means an entity that regularly provides child day care and early learning services for a group of children for periods of less than twenty-four hours licensed by the Washington state department of early learning under chapter 170-295 WAC. (5) "Elementary school" means a school for early education that provides the first four to eight years of basic education and recog- nized by the Washington state superintendent of public instruction. (6) "Financier" means any person or entity, other than a banking institution, that has made or will make an investment in the licensed business. A financier can be a person or entity that provides money as a gift, loans money to the applicant/business and expects to be paid back the amount of the loan with or without interest, or expects any percentage of the profits from the business in exchange for a loan or expertise. (7) "Game arcade" means an entertainment venue featuring primari- ly video games, simulators, and/or other amusement devices where per- sons under twenty-one years of age are not restricted. (8) "Library" means an organized collection of resources made ac- cessible to the public for reference or borrowing supported with money derived from taxation. (9) "Licensee" or "marijuana licensee" means any person or entity that holds a marijuana license, or any person or entity who is a true party of interest in a marijuana license, as outlined in WAC 314-55-035. (10) "Lot" means either of the following: (a) The flowers from one or more marijuana plants of the same strain. A single lot of flowers cannot weigh more than five pounds; or [ 1 ]OTS-5501.3PH.1 Page 14 of 246 (b) The trim, leaves, or other plant matter from one or more mar- ijuana plants. A single lot of trim, leaves, or other plant matter cannot weigh more than fifteen pounds. (11) "Marijuana strain" means a pure breed or hybrid variety of Cannabis reflecting similar or identical combinations of properties such as appearance, taste, color, smell, cannabinoid profile, and po- tency. (12) "Member" means a principal or governing person of a given entity, including but not limited to: LLC member/manager, president, vice-president, secretary, treasurer, CEO, director, stockholder, partner, general partner, limited partner. This includes all spouses of all principals or governing persons named in this definition and referenced in WAC 314-55-035. (13) "Pesticide" means, but is not limited to: (a) Any substance or mixture of substances intended to prevent, destroy, control, repel, or mitigate any insect, rodent, snail, slug, fungus, weed, and any other form of plant or animal life or virus, except virus on or in a living person or other animal which is normally considered to be a pest; (b) any substance or mixture of substances intended to be used as a plant regulator, defoliant, or desiccant; and (c) any spray adju- vant. Pesticides include substances commonly referred to as herbi- cides, fungicides, and insecticides. (14) "Perimeter" means a property line that encloses an area. (15) "Plant canopy" means the square footage dedicated to live plant production, such as maintain mother plants, propagating plants from seed to plant tissue, clones, vegetative or flowering area. Plant canopy does not include areas such as space used for the storage of fertilizers, pesticides, or other products, quarantine, office space, etc. (16) "Playground" means a public outdoor recreation area for children, usually equipped with swings, slides, and other playground equipment, owned and/or managed by a city, county, state, or federal government. (17) "Public park" means an area of land for the enjoyment of the public, having facilities for rest and/or recreation, such as a base- ball diamond or basketball court, owned and/or managed by a city, county, state, federal government, or metropolitan park district. Pub- lic park does not include trails. (18) "Public transit center" means a facility located outside of the public right of way that is owned and managed by a transit agency or city, county, state, or federal government for the express purpose of staging people and vehicles where several bus or other transit routes converge. They serve as efficient hubs to allow bus riders from various locations to assemble at a central point to take advantage of express trips or other route to route transfers. (19) "Recreation center or facility" means a supervised center that provides a broad range of activities and events intended primari- ly for use by persons under twenty-one years of age, owned and/or man- aged by a charitable nonprofit organization, city, county, state, or federal government. (20) "Residence" means a person's address where he or she physi- cally resides and maintains his or her abode. (21) "Secondary school" means a high and/or middle school: A school for students who have completed their primary education, usual- ly attended by children in grades seven to twelve and recognized by the Washington state superintendent of public instruction. [ 2 ]OTS-5501.3PH.1 Page 15 of 246 (22) "Unit" means an individually packaged marijuana-infused sol- id or liquid product meant to be eaten or swallowed, not to exceed ten servings or one hundred milligrams of active tetrahydrocannabinol (THC), or Delta 9. NEW SECTION WAC 314-55-015 General information about marijuana licenses. (1) A person or entity must meet certain qualifications to receive a mari- juana license, which are continuing qualifications in order to main- tain the license. (2) All applicants and employees working in each licensed estab- lishment must be at least twenty-one years of age. (3) Minors restricted signs must be posted at all marijuana li- censed premises. (4) A marijuana license applicant may not exercise any of the privileges of a marijuana license until the board approves the license application. (5) The board will not approve any marijuana license for a loca- tion where law enforcement access, without notice or cause, is limi- ted. This includes a personal residence. (6) The board will not approve any marijuana license for a loca- tion on federal lands. (7) The board will not approve any marijuana retailer license for a location within another business. More than one license could be lo- cated in the same building if each licensee has their own area separa- ted by full walls with their own entrance. Product may not be commin- gled. (8) Every marijuana licensee must post and keep posted its li- cense, or licenses, and any additional correspondence containing con- ditions and restrictions imposed by the board in a conspicuous place on the premises. (9) In approving a marijuana license, the board reserves the right to impose special conditions as to the involvement in the opera- tions of the licensed business of any former licensees, their former employees, or any person who does not qualify for a marijuana license. (10) A marijuana processor or retailer licensed by the board shall conduct the processing, storage, and sale of marijuana-infused products using sanitary practices and ensure facilities are construc- ted, kept, and maintained in a clean and sanitary condition in accord- ance with rules and as prescribed by the Washington state department of agriculture under chapters 16-165 and 16-167 WAC. (11) Marijuana licensees may not allow the consumption of mari- juana or marijuana-infused products on the licensed premises. NEW SECTION WAC 314-55-020 Marijuana license qualifications and application process. Each marijuana license application is unique and investigated individually. The board may inquire and request documents regarding all matters in connection with the marijuana license application. The [ 3 ]OTS-5501.3PH.1 Page 16 of 246 application requirements for a marijuana license include, but are not necessarily limited to, the following: (1) Per RCW 69.50.331, the board shall send a notice to cities and counties, and may send a notice to tribal governments or port au- thorities regarding the marijuana license application. The local au- thority has twenty days to respond with a recommendation to approve or an objection to the applicant, location, or both. (2) The board will verify that the proposed business meets the minimum requirements for the type of marijuana license requested. (3) The board will conduct an investigation of the applicants' criminal history and administrative violation history, per WAC 314-55-040 and 314-55-045. (a) The criminal history background check will consist of comple- tion of a personal/criminal history form provided by the board and submission of fingerprints to a vendor approved by the board. The ap- plicant will be responsible for paying all fees required by the vendor for fingerprinting. These fingerprints will be submitted to the Wash- ington state patrol and the Federal Bureau of Investigation for com- parison to their criminal records. The applicant will be responsible for paying all fees required by the Washington state patrol and the Federal Bureau of Investigation. (b) Financiers will also be subject to criminal history investi- gations equivalent to that of the license applicant. Financiers will also be responsible for paying all fees required for the criminal his- tory check. Financiers must meet the three month residency require- ment. (4) The board will conduct a financial investigation in order to verify the source of funds used for the acquisition and startup of the business, the applicants' right to the real and personal property, and to verify the true party(ies) of interest. (5) The board may require a demonstration by the applicant that they are familiar with marijuana laws and rules. (6) The board may conduct a final inspection of the proposed li- censed business, in order to determine if the applicant has complied with all the requirements of the license requested. (7) Per RCW 69.50.331 (1)(b), all applicants applying for a mari- juana license must have resided in the state of Washington for at least three months prior to application for a marijuana license. All partnerships, employee cooperatives, associations, nonprofit corpora- tions, corporations and limited liability companies applying for a marijuana license must be formed in Washington. All members must also meet the three month residency requirement. Managers or agents who manage a licensee's place of business must also meet the three month residency requirement. (8) Submission of an operating plan that demonstrates the appli- cant is qualified to hold the marijuana license applied for to the satisfaction of the board. The operating plan shall include the fol- lowing elements in accordance with the applicable standards in the Washington Administrative Code (WAC). (9) As part of the application process, each applicant must sub- mit in a format supplied by the board an operating plan detailing the following as it pertains to the license type being sought. This oper- ating plan must also include a floor plan or site plan drawn to scale which illustrates the entire operation being proposed. The operating plan must include the following information: [ 4 ]OTS-5501.3PH.1 Page 17 of 246 Producer Processor Retailer Security Security Security Traceability Traceability Traceability Employee qualifications and training Employee qualifications and training Employee qualifications and training Transportation of product including packaging of product for transportation Transportation of product Destruction of waste product Destruction of waste product Destruction of waste product Description of growing operation in- clude growing media, size of grow space allocated for plant production, space allocated for any other business activity, description of all equipment used in the production process, and a list of soil amendments, fertilizers, oth- er crop production aids, or pesticides, utilized in the production process Description of the types of products to be processed at this location together with a complete description of all equipment and solvents, gases, chemi- cals and other compounds used to cre- ate extracts and for processing of mar- ijuana-infused products Testing procedures and protocols Testing procedures and protocols Description of the types of products to be processed at this location together with a complete description of pro- cessing of marijuana-infused products Description of packaging and labeling of products to be processed What array of products are to be sold and how are the products to be dis- played to consumers After obtaining a license, the license holder must notify the board in advance of any substantial change in their operating plan. Depending on the degree of change, prior approval may be required be- fore the change is implemented. (10) Applicants applying for a marijuana license must be current in any tax obligations to the Washington state department of revenue, as an individual or as part of any entity in which they have an owner- ship interest. Applicants must sign an attestation that, under penalty of denial or loss of licensure, that representation is correct. (11) The issuance or approval of a license shall not be construed as a license for, or an approval of, any violations of local rules or ordinances including, but not limited to: Building and fire codes, zoning ordinances, and business licensing requirements. (12) Upon failure to respond to the board licensing and regula- tion division's requests for information within the timeline provided, the application may be administratively closed or denial of the appli- cation will be sought. NEW SECTION WAC 314-55-035 What persons or entities have to qualify for a marijuana license? A marijuana license must be issued in the name(s) of the true party(ies) of interest. (1) True parties of interest - For purposes of this title, "true party of interest" means: [ 5 ]OTS-5501.3PH.1 Page 18 of 246 True party of interest Persons to be qualified Sole proprietorship Sole proprietor and spouse. General partnership All partners and spouses. Limited partnership, limited liability partner- ship, or limited liability limited partnership • • All general partners and their spouses. All limited partners and spouses. Limited liability compa- ny •All members and their spouses. •All managers and their spouses. Privately held corpora- tion •All corporate officers (or persons with equiva- lent title) and their spouses. •All stockholders and their spouses. Publicly held corpora- tion All corporate officers (or per- sons with equivalent title) and their spouses. All stockholders and their spouses. Multilevel ownership structures All persons and entities that make up the ownership struc- ture (and their spouses). Any entity or person (inclusive of financiers) that are expecting a per- centage of the profits in exchange for a mone- tary loan or expertise. Any entity or person who is in receipt of, or has the right to receive, a percentage of the gross or net profit from the licensed business during any full or partial calendar or fiscal year. Any entity or person who ex- ercises control over the li- censed business in exchange for money or expertise. For the purposes of this chap- ter: •"Gross profit" includes the entire gross receipts from all sales and serv- ices made in, upon, or from the licensed busi- ness. •"Net profit" means gross sales minus cost of goods sold. Nonprofit corporations All individuals and spouses, and entities having member- ship rights in accordance with the provisions of the ar- ticles of incorporation or the bylaws. (2) For purposes of this section, "true party of interest" does not mean: (a) A person or entity receiving reasonable payment for rent on a fixed basis under a bona fide lease or rental obligation, unless the [ 6 ]OTS-5501.3PH.1 Page 19 of 246 lessor or property manager exercises control over or participates in the management of the business. (b) A person who receives a bonus as an employee, if: The employ- ee is on a fixed wage or salary and the bonus is not more than twenty- five percent of the employee's prebonus annual compensation; or the bonus is based on a written incentive/bonus program that is not out of the ordinary for the services rendered. (c) A person or entity contracting with the applicant(s) to sell the property, unless the contract holder exercises control over or participates in the management of the licensed business. (3) Financiers - The board will conduct a financial investigation as well as a criminal background of financiers. (4) Persons who exercise control of business - The board will conduct an investigation of any person or entity who exercises any control over the applicant's business operations. This may include both a financial investigation and/or a criminal history background. NEW SECTION WAC 314-55-040 What criminal history might prevent a marijuana license applicant from receiving or keeping a marijuana license? (1) When the board processes a criminal history check on an applicant, it uses a point system to determine if the person qualifies for a li- cense. The board will not normally issue a marijuana license or renew a license to an applicant who has accumulated eight or more points as indicated below: Description Time period during which points will be assigned Points assigned Felony convic- tion Ten years 12 points Gross misde- meanor convic- tion Three years 5 points Misdemeanor conviction Three years 4 points Currently under federal or state supervision for a felony convic- tion n/a 8 points Nondisclosure of any of the above n/a 4 points each (2) If a case is pending for an alleged offense that would earn eight or more points, the board will hold the application for the dis- position of the case. If the disposition is not settled within ninety days, the board will administratively close the application. (3) The board may not issue a marijuana license to anyone who has accumulated eight or more points as referenced above. This is a dis- cretionary threshold and it is further recommended that the following exceptions to this standard be applied: [ 7 ]OTS-5501.3PH.1 Page 20 of 246 Exception to criminal history point assignment. This exception to the criminal history point assignment will expire on July 1, 2014: (a) Prior to initial license application, two federal or state misdemeanor convictions for the possession only of marijuana within the previous three years may not be applicable to the criminal history points accumulated. All criminal history must be reported on the per- sonal/criminal history form. (i) Regardless of applicability, failure to disclose full crimi- nal history will result in point accumulation; (ii) State misdemeanor possession convictions accrued after De- cember 6, 2013, exceeding the allowable amounts of marijuana, usable marijuana, and marijuana-infused products described in chapter 69.50 RCW shall count toward criminal history point accumulation. (b) Prior to initial license application, any single state or federal conviction for the growing, possession, or sale of marijuana will be considered for mitigation on an individual basis. Mitigation will be considered based on the quantity of product involved and other circumstances surrounding the conviction. (4) Once licensed, marijuana licensees must report any criminal convictions to the board within fourteen days. NEW SECTION WAC 314-55-045 What marijuana law or rule violation history might prevent an applicant from receiving a marijuana license? The board will conduct an investigation of all applicants' marijuana law or rule administrative violation history. The board will not normally issue a marijuana license to a person, or to an entity with a true party of interest, who has the following violation history; or to any person who has demonstrated a pattern of disregard for laws or rules. Violation Type (see WAC 314-55-515)Period of Consideration •Three or more public safety violations; •Violations issued within three years of the date the applica- tion is received by the board's licensing and regulation division. •Four or more regulato- ry violations; or •One to four, or more license violations. •Violations issued within the last three years the true par- ty(ies) of interest were licensed. NEW SECTION WAC 314-55-050 Reasons the board may seek denial, suspension, or cancellation of a marijuana license application or license. Following is a list of reasons the board may deny, suspend, or cancel a marijua- [ 8 ]OTS-5501.3PH.1 Page 21 of 246 na license application or license. Per RCW 66.50.331, the board has broad discretionary authority to approve or deny a marijuana license application for reasons including, but not limited to, the following: (1) Failure to meet qualifications or requirements for the spe- cific marijuana producer, processor, or retail license, as outlined in this chapter and chapter 69.50 RCW. (2) Failure or refusal to submit information or documentation re- quested by the board during the evaluation process. (3) The applicant makes a misrepresentation of fact, or fails to disclose a material fact to the board during the application process or any subsequent investigation after a license has been issued. (4) Failure to meet the criminal history standards outlined in WAC 314-55-040. (5) Failure to meet the marijuana law or rule violation history standards outlined in WAC 314-55-045. (6) The source of funds identified by the applicant to be used for the acquisition, startup and operation of the business is ques- tionable, unverifiable, or determined by the board to be gained in a manner which is in violation by law. (7) Denies the board or its authorized representative access to any place where a licensed activity takes place or fails to produce any book, record or document required by law or board rule. (8) Has been denied or had a marijuana license or medical mari- juana license suspended or canceled in another state or local juris- diction. (9) Where the city, county, tribal government, or port authority has submitted a substantiated objection per the requirements in RCW 69.50.331 (7) and (9). (10) The board shall not issue a new marijuana license if the proposed licensed business is within one thousand feet of the perime- ter of the grounds of any of the following entities. The distance shall be measured along the most direct route over or across estab- lished public walks, streets, or other public passageway between the proposed building/business location to the perimeter of the grounds of the entities listed below: (a) Elementary or secondary school; (b) Playground; (c) Recreation center or facility; (d) Child care center; (e) Public park; (f) Public transit center; (g) Library; or (h) Any game arcade (where admission is not restricted to persons age twenty-one or older). (11) Has failed to pay taxes or fees required under chapter 69.50 RCW or failed to provide production, processing, inventory, sales and transportation reports to documentation required under this chapter. (12) Failure to submit an attestation that they are current in any tax obligations to the Washington state department of revenue. (13) Has been denied a liquor license or had a liquor license suspended or revoked in this or any other state. (14) The operating plan does not demonstrate, to the satisfaction of the board, the applicant is qualified for a license. (15) Failure to operate in accordance with the board approved op- erating plan. [ 9 ]OTS-5501.3PH.1 Page 22 of 246 (16) The board determines the issuance of the license will not be in the best interest of the welfare, health, or safety of the people of the state. NEW SECTION WAC 314-55-070 Process if the board denies a marijuana license application. If the board denies a marijuana license application, the applicants may: (1) Request an administrative hearing per chapter 34.05 RCW, the Administrative Procedure Act. (2) Reapply for the license no sooner than one year from the date on the final order of denial. NEW SECTION WAC 314-55-075 What is a marijuana producer license and what are the requirements and fees related to a marijuana producer license? (1) A marijuana producer license allows the licensee to produce marijuana for sale at wholesale to marijuana processor licensees and to other marijuana producer licensees. Marijuana production must take place within a fully enclosed secure indoor facility or greenhouse with rig- id walls, a roof, and doors. Outdoor production may take place in non- rigid greenhouses, other structures, or an expanse of open or cleared ground fully enclosed by a physical barrier. To obscure public view of the premises, outdoor production must be enclosed by a sight obscure wall or fence at least eight feet high. Outdoor producers must meet security requirements described in WAC 314-55-083. (2) The application fee for a marijuana producer license is two hundred fifty dollars. The applicant is also responsible for paying the fees required by the approved vendor for fingerprint evaluation. (3) The annual fee for issuance and renewal of a marijuana pro- ducer license is one thousand dollars. The board will conduct random criminal history checks at the time of renewal that will require the licensee to submit fingerprints for evaluation from the approved ven- dor. The licensee will be responsible for all fees required for the criminal history checks. (4) The board will initially limit the opportunity to apply for a marijuana producer license to a thirty-day calendar window beginning with the effective date of this section. In order for a marijuana pro- ducer application license to be considered it must be received no lat- er than thirty days after the effective date of the rules adopted by the board. The board may reopen the marijuana producer application window after the initial evaluation of the applications received and at subsequent times when the board deems necessary. (5) Any entity and/or principals within any entity are limited to no more than three marijuana producer licenses. (6) The maximum amount of space for marijuana production is limi- ted to two million square feet. Applicants must designate on their op- erating plan the size category of the production premises and the [ 10 ]OTS-5501.3PH.1 Page 23 of 246 amount of actual square footage in their premises that will be desig- nated as plant canopy. There are three categories as follows: (a) Tier 1 – Less than two thousand square feet; (b) Tier 2 – Two thousand square feet to ten thousand square feet; and (c) Tier 3 – Ten thousand square feet to thirty thousand square feet. (7) The board may reduce a licensee's or applicant's square foot- age designated to plant canopy for the following reasons: (a) If the amount of square feet of production of all licensees exceeds the maximum of two million square feet the board will reduce the allowed square footage by the same percentage. (b) If fifty percent production space used for plant canopy in the licensee's operating plan is not met by the end of the first year of operation the board may reduce the tier of licensure. (8) If the total amount of square feet of marijuana production exceeds two million square feet, the board reserves the right to re- duce all licensee's production by the same percentage or reduce licen- see production by one or more tiers by the same percentage. (9) The maximum allowed amount of marijuana on a producer's prem- ises at any time is as follows: (a) Outdoor or greenhouse grows – One and one-quarter of a year's harvest; or (b) Indoor grows – Six months of their annual harvest. NEW SECTION WAC 314-55-077 What is a marijuana processor license and what are the requirements and fees related to a marijuana processor license? (1) A marijuana processor license allows the licensee to process, package, and label usable marijuana and marijuana-infused products for sale at wholesale to marijuana retailers. (2) A marijuana processor is allowed to blend tested useable mar- ijuana from multiple lots into a single package for sale to a marijua- na retail licensee providing the label requirements for each lot used in the blend are met and the percentage by weight of each lot is also included on the label. (3) The application fee for a marijuana processor license is two hundred fifty dollars. The applicant is also responsible for paying the fees required by the approved vendor for fingerprint evaluation. (4) The annual fee for issuance and renewal of a marijuana pro- cessor license is one thousand dollars. The board will conduct random criminal history checks at the time of renewal that will require the licensee to submit fingerprints for evaluation from the approved ven- dor. The licensee will be responsible for all fees required for the criminal history checks. (5) The board will initially limit the opportunity to apply for a marijuana processor license to a thirty-day calendar window beginning with the effective date of this section. In order for a marijuana pro- cessor application license to be considered it must be received no later than thirty days after the effective date of the rules adopted by the board. The board may reopen the marijuana processor application window after the initial evaluation of the applications that are re- [ 11 ]OTS-5501.3PH.1 Page 24 of 246 ceived and processed, and at subsequent times when the board deems necessary. (6) Any entity and/or principals within any entity are limited to no more than three marijuana processor licenses. (7) Marijuana processor licensees are allowed to have a maximum of six months of their average useable marijuana and six months aver- age of their total production on their licensed premises at any time. NEW SECTION WAC 314-55-079 What is a marijuana retailer license and what are the requirements and fees related to a marijuana retailer license? (1) A marijuana retailer license allows the licensee to sell only usable marijuana, marijuana-infused products, and marijuana paraphernalia at retail in retail outlets to persons twenty-one years of age and older. (2) Marijuana extracts, such as hash, hash oil, shatter, and wax can be infused in products sold in a marijuana retail store, but RCW 69.50.354 does not allow the sale of extracts that are not infused in products. A marijuana extract does not meet the definition of a mari- juana-infused product per RCW 69.50.101. (3) Internet sales and delivery of product is prohibited. (4) The application fee for a marijuana retailer's license is two hundred fifty dollars. The applicant is also responsible for paying the fees required by the approved vendor for fingerprint evaluation. (5) The annual fee for issuance and renewal of a marijuana re- tailer's license is one thousand dollars. The board will conduct ran- dom criminal history checks at the time of renewal that will require the licensee to submit fingerprints for evaluation from the approved vendor. The licensee will be responsible for all fees required for the criminal history checks. (6) Marijuana retailers may not sell marijuana products below their acquisition cost. (7) Marijuana retailer licensees are allowed to have a maximum of four months of their average inventory on their licensed premises at any given time. NEW SECTION WAC 314-55-081 Who can apply for a marijuana retailer license? (1) Using estimated consumption data and population data obtained from the office of financial management (OFM) population data, the liquor control board will determine the maximum number of marijuana retail locations per county. The number of retail locations will be determined using a method that distributes the number of locations proportionate to the most populous cities within each county. Locations not assigned to a spe- cific city will be at large. At large locations can be used for unin- corporated areas in the county or in cities within the county that have no retail licenses designated. Once the number of locations per city and at large have been identified, the eligible applicants will be selected by lottery in the event the number of applications exceeds [ 12 ]OTS-5501.3PH.1 Page 25 of 246 the allotted amount for the cities and county. Any lottery conducted by the board will be witnessed by an independent third party. (2) The number of marijuana retail licenses determined by the board can be found on the liquor control board web site at www.liq.wa.gov. (3) Any entity and/or principals within any entity are limited to no more than three retail marijuana licenses with no multiple location licensee allowed more than thirty-three percent of the allowed licen- ses in any county or city. (4) The board will initially limit the opportunity to apply for a marijuana retailer license to a thirty-day calendar window beginning with the effective date of this section. In order for a marijuana re- tailer license application to be considered it must be received no later than thirty days after the effective date of the rules adopted by the board. The board may reopen the marijuana retailer application window after the initial evaluation of the applications received and at subsequent times when the board deems necessary. NEW SECTION WAC 314-55-082 Insurance requirements. Marijuana licensees shall provide insurance coverage as set out in this section. The intent of the required insurance is to protect the consumer should there be any claims, suits, actions, costs, damages or expenses arising from any negligent or intentional act or omission of the marijuana licensees. Marijuana licensees shall furnish evidence in the form of a certifi- cate of insurance satisfactory to the board that insurance, in the following kinds and minimum amounts, has been secured. Failure to pro- vide proof of insurance, as required, may result in license cancella- tion. (1) Commercial general liability insurance: The licensee shall at all times carry and maintain commercial general liability insurance and if necessary, commercial umbrella insurance for bodily injury and property damage arising out of licensed activities. This insurance shall cover such claims as may be caused by any act, omission, or neg- ligence of the licensee or its officers, agents, representatives, as- signs, or servants. The insurance shall also cover bodily injury, in- cluding disease, illness and death, and property damage arising out of the licensee's premises/operations, products, and personal injury. The limits of liability insurance shall not be less than one million dol- lars. (2) Insurance carrier rating: The insurance required in subsec- tion (1) of this section shall be issued by an insurance company au- thorized to do business within the state of Washington. Insurance is to be placed with a carrier that has a rating of A - Class VII or bet- ter in the most recently published edition of Best's Reports. If an insurer is not admitted, all insurance policies and procedures for is- suing the insurance policies must comply with chapters 48.15 RCW and 284-15 WAC. (3) Additional insured. The board shall be named as an additional insured on all general liability, umbrella, and excess insurance poli- cies. All policies shall be primary over any other valid and collecta- ble insurance. [ 13 ]OTS-5501.3PH.1 Page 26 of 246 NEW SECTION WAC 314-55-083 What are the security requirements for a marijuana licensee? The security requirements for a marijuana licensee are as follows: (1) Display of identification badge. All employees on the li- censed premises shall be required to hold and properly display an identification badge issued by the licensed employer at all times while on the licensed premises. (2) Alarm systems. At a minimum, each licensed premises must have a security alarm system on all perimeter entry points and perimeter windows. Motion detectors, pressure switches, duress, panic, and hold- up alarms may also be utilized. (3) Surveillance system. At a minimum, a complete video surveil- lance with minimum camera resolution of 640x470 pixel and must be in- ternet protocol (IP) compatible and recording system for controlled areas within the licensed premises and entire perimeter fencing and gates enclosing an outdoor grow operation, to ensure control of the area. The requirements include image acquisition, video recording, management and monitoring hardware and support systems. All recorded images must clearly and accurately display the time and date. Time is to be measured in accordance with the U.S. National Institute Stand- ards and Technology standards. (a) All controlled access areas, security rooms/areas and all points of ingress/egress to limited access areas, all points of in- gress/egress to the exterior of the licensed premises, and all point- of-sale (POS) areas must have fixed camera coverage capable of identi- fying activity occurring within a minimum of twenty feet of all entry and exit points. (b) Camera placement shall allow for the clear and certain iden- tification of any individual on the licensed premises. (c) All entrances and exits to the facility shall be recorded from both indoor and outdoor vantage points, and capable of clearly identifying any activities occurring within the facility or within the grow rooms in low light conditions. The surveillance system storage device must be secured on-site in a lock box, cabinet, closet, or se- cured in another manner to protect from employee tampering or criminal theft. (d) All perimeter fencing and gates enclosing an outdoor grow op- eration must have full video surveillance capable of clearly identify- ing any activities occurring within twenty feet of the exterior of the perimeter. Any gate or other entry point that is part of the enclosure for an outdoor growing operation must have fixed camera coverage capa- ble of identifying activity occurring within a minimum of twenty feet of the exterior, twenty-four hours a day. A motion detection lighting system may be employed to illuminate the gate area in low light condi- tions. (e) Areas where marijuana is grown, cured or manufactured includ- ing destroying waste, shall have a camera placement in the room facing the primary entry door, and in adequate fixed positions, at a height which will provide a clear, unobstructed view of the regular activity without a sight blockage from lighting hoods, fixtures, or other equipment, allowing for the clear and certain identification of per- sons and activities at all times. (f) All marijuana or marijuana-infused products that are intended to be removed or transported from marijuana producer to marijuana pro- [ 14 ]OTS-5501.3PH.1 Page 27 of 246 cessor and/or marijuana processor to marijuana retailer shall be stag- ed in an area known as the "quarantine" location for a minimum of twenty-four hours. Transport manifest with product information and weights must be affixed to the product. At no time during the quaran- tine period can the product be handled or moved under any circumstan- ces and is subject to auditing by the liquor control board or design- ees. (g) All camera recordings must be continuously recorded twenty- four hours a day. All surveillance recordings must be kept for a mini- mum of forty-five days on the licensee's recording device. All videos are subject to inspection by any liquor control board employee or law enforcement officer, and must be copied and provided to the board or law enforcement officer upon request. (4) Traceability: To prevent diversion and to promote public safety, marijuana licensees must track marijuana from seed to sale. Licensees must provide the required information on a system specified by the board. All costs related to the reporting requirements are borne by the licensee. Marijuana seedlings, clones, plants, lots of usable marijuana or trim, leaves, and other plant matter, batches of extracts and marijuana-infused products must be traceable from produc- tion through processing, and finally into the retail environment in- cluding being able to identify which lot was used as base material to create each batch of extracts or infused products. The following in- formation is required and must be kept completely up-to-date in a sys- tem specified by the board: (a) Key notification of "events," such as when a plant enters the system (moved from the seedling or clone area to the vegetation pro- duction area at a young age); (b) When plants are to be partially or fully harvested or de- stroyed; (c) When a lot or batch of marijuana-infused product is to be de- stroyed; (d) When usable marijuana or marijuana-infused products are transported; (e) Any theft of marijuana seedlings, clones, plants, trim or other plant material, extract, infused product, or other item contain- ing marijuana; (f) There is a seventy-two hour mandatory waiting period after the notification described in this subsection is given before any plant may be destroyed or a lot or batch of marijuana or marijuana-in- fused product may be destroyed; (g) There is a twenty-four hour mandatory waiting period after the notification described in this subsection to allow for inspection before a lot of marijuana is transported from a producer to a process- or; (h) There is a twenty-four hour mandatory waiting period after the notification described in this subsection to allow for inspection before useable marijuana, or marijuana-infused products are transpor- ted from a processor to a retailer. (i) Prior to reaching eight inches in height or width, each mari- juana plant must be tagged and tracked individually, which typically should happened when a plant is moved from the seed germination or clone area to the vegetation production area; (j) A complete inventory of all marijuana seedlings, clones, all plants, lots of usable marijuana or trim, leaves, and other plant mat- ter, batches of extract and marijuana-infused products; (k) All point of sale records; [ 15 ]OTS-5501.3PH.1 Page 28 of 246 (l) Marijuana excise tax records; (m) All samples sent to an independent testing lab and the quali- ty assurance test results; (n) All free samples provided to another licensee for purposes of negotiating a sale; (o) All samples used for testing for quality by the producer or processor; (p) Samples containing usable marijuana provided to retailers; (q) Samples provided to the board or their designee for quality assurance compliance checks; and (r) Other information specified by the board. (5) Start-up inventory for marijuana producers. Within fifteen days of starting production operations a producer must have all non- flowering marijuana plants physically on the licensed premises. The producer must immediately record each marijuana plant that enters the facility in the traceability system during this fifteen day time frame. No flowering marijuana plants may be brought into the facility during this fifteen day time frame. After this fifteen day time frame expires, a producer may only start plants from seed or create clones from a marijuana plant located physically on their licensed premises, or purchase marijuana seeds, clones, or plants from another licensed producer. (6) Samples. Free samples of usable marijuana may be provided by producers or processors, or used for product quality testing, as set forth in this section. (a) Samples are limited to two grams and a producer may not pro- vide any one licensed processor more than four grams of usable mari- juana per month free of charge for the purpose of negotiating a sale. The producer must record the amount of each sample and the processor receiving the sample in the traceability system. (b) Samples are limited to two grams and a processor may not pro- vide any one licensed retailer more than four grams of usable marijua- na per month free of charge for the purpose of negotiating a sale. The processor must record the amount of each sample and the retailer re- ceiving the sample in the traceability system. (c) Samples are limited to two units and a processor may not pro- vide any one licensed retailer more than six ounces of marijuana in- fused in solid form per month free of charge for the purpose of nego- tiating a sale. The processor must record the amount of each sample and the retailer receiving the sample in the traceability system. (d) Samples are limited to two units and a processor may not pro- vide any one licensed retailer more than twenty-four ounces of mari- juana-infused liquid per month free of charge for the purpose of nego- tiating a sale. The processor must record the amount of each sample and the retailer receiving the sample in the traceability system. (e) Samples are limited to one-half gram and a processor may not provide any one licensed retailer more than one gram of marijuana-in- fused extract meant for inhalation per month free of charge for the purpose of negotiating a sale. The processor must record the amount of each sample and the retailer receiving the sample in the traceability system. (f) Producers may sample one gram of useable marijuana per strain, per month for quality sampling. Sampling for quality may not take place at a licensed premises. Only the producer or employees of the licensee may sample the useable marijuana for quality. The produc- er must record the amount of each sample and the employee(s) conduct- ing the sampling in the traceability system. [ 16 ]OTS-5501.3PH.1 Page 29 of 246 (g) Processors may sample one unit, per batch of a new edible marijuana-infused product to be offered for sale on the market. Sam- pling for quality may not take place at a licensed premises. Only the processor or employees of the licensee may sample the edible marijua- na-infused product. The processor must record the amount of each sam- ple and the employee(s) conducting the sampling in the traceability system. (h) Processors may sample up to one quarter gram, per batch of a new marijuana-infused extract for inhalation to be offered for sale on the market. Sampling for quality may not take place at a licensed premises. Only the processor or employee(s) of the licensee may sample the marijuana-infused extract for inhalation. The processor must re- cord the amount of each sample and the employee(s) conducting the sam- pling in the traceability system. (i) The limits described in subsection (3) of this section do not apply to the usable marijuana in sample jars that may be provided to retailers described in WAC 314-55-105(8). (j) Retailers may not provide free samples to customers. NEW SECTION WAC 314-55-084 Production of marijuana. Only the following speci- fied soil amendments, fertilizers, other crop production aids, and pesticides may be used in the production of marijuana: (1) Materials listed or registered by the Washington state de- partment of agriculture (WSDA) or Organic Materials Review Institute (OMRI) as allowable for use in organic production, processing, and handling under the U.S. Department of Agriculture's national organics standards, also called the National Organic Program (NOP), consistent with requirements at 7 C.F.R. Part 205. (2) Pesticides registered by WSDA under chapter 15.58 RCW as al- lowed for use in the production, processing, and handling of marijua- na. Pesticides must be used consistent with the label requirements. (3) Commercial fertilizers registered by WSDA under chapter 15.54 RCW. (4) Potting soil and other growing media available commercially in the state of Washington may be used in marijuana production. Pro- ducers growing outdoors are not required to meet land eligibility re- quirements outlined in 7 C.F.R. Part 205.202. NEW SECTION WAC 314-55-085 What are the transportation requirements for a marijuana licensee? (1) Notification of shipment. Upon transporting any marijuana or marijuana product, a producer, processor or retailer shall notify the board of the type and amount and/or weight of mari- juana and/or marijuana products being transported, the name of trans- porter, times of departure and expected delivery. This information must be reported in the traceability system described in WAC 314-55-083(4). [ 17 ]OTS-5501.3PH.1 Page 30 of 246 (2) Receipt of shipment. Upon receiving the shipment, the licen- see receiving the product shall report the amount and/or weight of marijuana and/or marijuana products received in the traceability sys- tem. (3) Transportation manifest. A complete transport manifest con- taining all information required by the board must be kept with the product at all times. (4) Records of transportation. Records of all transportation must be kept for a minimum of three years at the licensee's location. (5) Transportation of product. Marijuana or marijuana products that are being transported must meet the following requirements: (a) Only the marijuana licensee or an employee of the licensee may transport product; (b) Marijuana or marijuana products must be in a sealed package or container approved by the board pursuant to WAC 314-55-105; (c) Sealed packages or containers cannot be opened during trans- port; (d) Marijuana or marijuana products must be in a locked, safe and secure storage compartment that is secured to the inside body/compart- ment of the vehicle transporting the marijuana or marijuana products; (e) Any vehicle transporting marijuana or marijuana products must travel directly from the shipping licensee to the receiving licensee and must not make any unnecessary stops in between except to other fa- cilities receiving product. NEW SECTION WAC 314-55-086 What are the mandatory signs a marijuana licensee must post on a licensed premises? (1) Notices regarding persons under twenty-one years of age must be conspicuously posted on the premises as follows: Type of licensee Sign must contain the following language: Required location of sign Marijuana produc- er, marijuana pro- cessor, and mari- juana retailer "Persons under twenty- one years of age not permitted on these premises." Conspicuous loca- tion at each entry to premises. The board will provide the required notices, or licensees may design their own notices as long as they are legible and contain the required language. (2) Signs provided by the board prohibiting opening a package of marijuana or marijuana-infused product in public or consumption of marijuana or marijuana-infused products in public, must be posted as follows: Type of premises Required location of sign Marijuana retail Posted in plain view at the main entrance to the establishment. (3) The premises' current and valid master license with appropri- ate endorsements must be conspicuously posted on the premises and available for inspection by liquor enforcement officers. [ 18 ]OTS-5501.3PH.1 Page 31 of 246 NEW SECTION WAC 314-55-087 What are the recordkeeping requirements for mari- juana licensees? (1) Marijuana licensees are responsible to keep re- cords that clearly reflect all financial transactions and the finan- cial condition of the business. The following records must be kept and maintained on the licensed premises for a three-year period and must be made available for inspection if requested by an employee of the liquor control board: (a) Purchase invoices and supporting documents, to include the items and/or services purchased, from whom the items were purchased, and the date of purchase; (b) Bank statements and canceled checks for any accounts relating to the licensed business; (c) Accounting and tax records related to the licensed business and each true party of interest; (d) Records of all financial transactions related to the licensed business, including contracts and/or agreements for services performed or received that relate to the licensed business; (e) All employee records, to include training; (f) Records of each daily application of pesticides applied to the marijuana plants or growing medium. For each application, the pro- ducer shall record the following information on the same day the ap- plication is made: (i) Full name of each employee who applied the pesticide; (ii) The date the pesticide was applied; (iii) The name of the pesticide or product name listed on the registration label which was applied; (iv) The concentration and total amount of pesticide per plant; and (v) For outdoor production, the concentration of pesticide that was applied to the field. Liquor applications may be recorded as, but are not limited to, amount of product per one hundred gallons of liq- uor spray, gallons per acre of output volume, ppm, percent product in tank mix (e.g., one percent). For chemigation applications, record "inches of water applied" or other appropriate measure. (g) Soil amendment, fertilizers, or other crop production aids applied to the growing medium or used in the process of growing mari- juana; (h) Production and processing records, including harvest and cur- ing, weighing, destruction of marijuana, creating batches of marijua- na-infused products and packaging into lots and units; (i) Records of each batch of extracts or infused marijuana prod- ucts made, including at a minimum, the lots of usable marijuana or trim, leaves, and other plant matter used (including the total weight of the base product used), any solvents or other compounds utilized, and the product type and the total weight of the end product produced, such as hash oil, shatter, tincture, infused dairy butter, etc.; (j) Transportation records as described in WAC 314-55-085; (k) Inventory records; (l) All samples sent to an independent testing lab and the quali- ty assurance test results; (m) All free samples provided to another licensee for purposes of negotiating a sale; (n) All samples used for testing for quality by the producer or processor; [ 19 ]OTS-5501.3PH.1 Page 32 of 246 (o) Sample jars containing usable marijuana provided to retail- ers; and (p) Records of any theft of marijuana seedlings, clones, plants, trim or other plant material, extract, marijuana-infused product, or other item containing marijuana. (2) If the marijuana licensee keeps records within an automated data processing (ADP) and/or point-of-sale (POS) system, the system must include a method for producing legible records that will provide the same information required of that type of record within this sec- tion. The ADP and/or POS system is acceptable if it complies with the following guidelines: (a) Provides an audit trail so that details (invoices and vouch- ers) underlying the summary accounting data may be identified and made available upon request. (b) Provides the opportunity to trace any transaction back to the original source or forward to a final total. If printouts of transac- tions are not made when they are processed, the system must have the ability to reconstruct these transactions. (c) Has available a full description of the ADP and/or POS por- tion of the accounting system. This should show the applications being performed, the procedures employed in each application, and the con- trols used to ensure accurate and reliable processing. (3) The provisions contained in subsections (1) and (2) of this section do not eliminate the requirement to maintain source documents, but they do allow the source documents to be maintained in some other location. NEW SECTION WAC 314-55-089 What are the tax and reporting requirements for marijuana licensees? (1) Marijuana licensees must submit monthly re- port(s) and payments to the board. The required monthly reports must be: (a) On a form or electronic system designated by the board; (b) Filed every month, including months with no activity or pay- ment due; (c) Submitted, with payment due, to the board on or before the twentieth day of each month, for the previous month. (For example, a report listing transactions for the month of January is due by Febru- ary 20th.) When the twentieth day of the month falls on a Saturday, Sunday, or a legal holiday, the filing must be postmarked by the U.S. Postal Service no later than the next postal business day; (d) Filed separately for each marijuana license held; and (e) All records must be maintained and available for review for a three-year period on licensed premises (see WAC 314-55-087). (2) Marijuana producer licensees: On a monthly basis, marijuana producers must maintain records and report purchases from other li- censed marijuana producers, current production and inventory on hand, sales by product type, and lost and destroyed product in a manner pre- scribed by the board. A marijuana producer licensee must pay to the board a marijuana excise tax of twenty-five percent of the selling price on each whole- sale sale to a licensed marijuana processor. [ 20 ]OTS-5501.3PH.1 Page 33 of 246 (3) Marijuana processor licensees: On a monthly basis, marijuana processors must maintain records and report purchases from licensed marijuana producers, production of marijuana-infused products, sales by product type to marijuana retailers, and lost and/or destroyed product in a manner prescribed by the board. A marijuana processor licensee must pay to the board a marijuana excise tax of twenty-five percent of the selling price on each whole- sale sale of usable marijuana and marijuana-infused product to a li- censed marijuana retailer. (4) Marijuana retailer's licensees: On a monthly basis, marijuana retailers must maintain records and report purchases from licensed marijuana processors, sales by product type to consumers, and lost and/or destroyed product in a manner prescribed by the board. A marijuana retailer licensee must pay to the board a marijuana excise tax of twenty-five percent of the selling price on each retail sale of usable marijuana or marijuana-infused products. NEW SECTION WAC 314-55-092 What if a marijuana licensee fails to report or pay, or reports or pays late? (1) If a marijuana licensee does not submit its monthly reports and payment(s) to the board as required in WAC 314-55-089: The licensee is subject to penalties. Penalties: A penalty of two percent per month will be assessed on any payments postmarked after the twentieth day of the month following the month of sale. When the twentieth day of the month falls on a Sat- urday, Sunday, or a legal holiday, the filing must be postmarked by the U.S. Postal Service no later than the next postal business day. (2) Failure to make a report and/or pay the license taxes and/or penalties in the manner and dates outlined in WAC 314-55-089 will be sufficient grounds for the board to suspend or revoke a marijuana li- cense. NEW SECTION WAC 314-55-095 Marijuana servings and transaction limitations. Marijuana dosage and transaction limitations are as follows: (1) Single serving. A single serving of a marijuana-infused prod- uct amounts to ten milligrams active tetrahydrocannabinol (THC), or Delta 9. (2) Maximum number of servings. The maximum number of servings in any one single unit of marijuana-infused product meant to be eaten or swallowed is ten servings or one hundred milligrams of active THC, or Delta 9. A single unit of marijuana-infused extract for inhalation cannot exceed one gram. (3) Transaction limitation. A single transaction is limited to one ounce of usable marijuana, sixteen ounces of marijuana-infused product in solid form, seven grams of marijuana-infused extract for inhalation, and seventy-two ounces of marijuana-infused product in liquid form for persons twenty-one years of age and older. [ 21 ]OTS-5501.3PH.1 Page 34 of 246 NEW SECTION WAC 314-55-097 Marijuana waste disposal—Liquids and solids. (1) Solid and liquid wastes generated during marijuana production and pro- cessing must be stored, managed, and disposed of in accordance with applicable state and local laws and regulations. (2) Wastewater generated during marijuana production and process- ing must be disposed of in compliance with applicable state and local laws and regulations. (3) Wastes from the production and processing of marijuana plants must be evaluated against the state's dangerous waste regulations (chapter 173-303 WAC) to determine if those wastes designate as dan- gerous waste. It is the responsibility of each waste generator to properly evaluate their waste to determine if it designates as a dan- gerous waste. If a generator's waste does designate as a dangerous waste, then that waste(s) is subject to the applicable management standards found in chapter 173-303 WAC. (a) Wastes that must be evaluated against the dangerous waste regulations include, but are not limited to, the following: (i) Waste from marijuana flowers, trim and solid plant material used to create an extract (per WAC 315-55-104). (ii) Waste solvents used in the marijuana process (per WAC 315-55-104). (iii) Discarded plant waste, spent solvents and laboratory wastes from any marijuana processing or quality assurance testing. (iv) Marijuana extract that fails to meet quality testing. (b) Marijuana wastes that do not designate as dangerous shall be managed in accordance with subsection (4) of this section. (c) A marijuana plant, usable marijuana, trim and other plant ma- terial in itself is not considered dangerous waste as defined under chapter 173-303 WAC unless it has been treated or contaminated with a solvent. (4) Marijuana waste that does not designate as dangerous waste (per subsection (3) of this section) must be rendered unusable follow- ing the methods in subsection (5) of this section prior to leaving a licensed producer, processor, retail facility, or laboratory. Disposal of the marijuana waste rendered unusable must follow the methods under subsection (6) of this section. (a) Wastes that must be rendered unusable prior to disposal in- clude, but are not limited to, the following: (i) Waste evaluated per subsection (3) of this section and deter- mined to not designate as "Dangerous Waste." (ii) Marijuana plant waste, including roots, stalks, leaves, and stems that have not been processed with solvent. (iii) Solid marijuana sample plant waste possessed by third-party laboratories accredited by the board to test for quality assurance that must be disposed of. (iv) Other wastes as determined by the LCB. (b) A producer or processor must provide the board a minimum of seventy-two hours notice in the traceability system described in WAC 314-55-083(4) prior to rendering the product unusable and disposing of it. (5) The allowable method to render marijuana plant waste unusable is by grinding and incorporating the marijuana plant waste with other ground materials so the resulting mixture is at least fifty percent [ 22 ]OTS-5501.3PH.1 Page 35 of 246 nonmarijuana waste by volume. Other methods to render marijuana waste unusable must be approved by LCB before implementation. Material used to grind with the marijuana falls into two catego- ries: Compostable waste and noncompostable waste. (a) Compostable mixed waste: Marijuana waste to be disposed as compost feedstock or in another organic waste method (for example, anaerobic digester) may be mixed with the following types of waste ma- terials: (i) Food waste; (ii) Yard waste; (iii) Vegetable based grease or oils; or (iv) Other wastes as approved by the LCB. (b) Noncompostable mixed waste: Marijuana waste to be disposed in a landfill or another disposal method (for example, incinerator) may be mixed with the following types of waste materials: (i) Paper waste; (ii) Cardboard waste; (iii) Plastic waste; (iv) Soil; or (v) Other wastes as approved by the LCB. (6) Marijuana wastes rendered unusable following the method de- scribed in subsection (4) of this section can be disposed. (a) Disposal of the marijuana waste rendered unusable may be de- livered to a permitted solid waste facility for final disposition. Ex- amples of acceptable permitted solid waste facilities include: (i) Compostable mixed waste: Compost, anaerobic digester, or oth- er facility with approval of the jurisdictional health department. (ii) Noncompostable mixed waste: Landfill, incinerator, or other facility with approval of the jurisdictional health department. (b) Disposal of the marijuana waste rendered unusable may be man- aged on-site by the generator in accordance with the standards of chapter 173-350 WAC. (c) A record of the final destination of marijuana waste rendered unusable. NEW SECTION WAC 314-55-099 Standardized scales. (1) Marijuana producer and processor licensees must have at least one scale on the licensed prem- ises for the traceability and inventory of products. (2) The scales and other measuring devices are subject to chapter 19.94 RCW, and must meet the requirements of the most current version of chapters 16-662 and 16-664 WAC. (3) Licensees must register scales on a business license applica- tion with business license services through the department of revenue as required under chapter 19.94 RCW. NEW SECTION WAC 314-55-102 Quality assurance testing. (1) A person with fi- nancial interest in an accredited third-party testing lab may not have [ 23 ]OTS-5501.3PH.1 Page 36 of 246 direct or indirect financial interest in a licensed marijuana producer or processor for whom they are conducting required quality assurance tests. (2) As a condition of accreditation, each lab must employ a sci- entific director responsible to ensure the achievement and maintenance of quality standards of practice. The scientific director shall meet the following minimum qualifications: (a) Has earned, from a college or university accredited by a na- tional or regional certifying authority a doctorate in the chemical or biological sciences and a minimum of two years' post-degree laboratory experience; or (b) Has earned a master's degree in the chemical or biological sciences and has a minimum of four years' of post-degree laboratory experience; or (c) Has earned a bachelor's degree in the chemical or biological sciences and has a minimum of six years of post-education laboratory experience. (3) As a condition of accreditation, labs must follow the most current version of the Cannabis Inflorescence and Leaf monograph pub- lished by the American Herbal Pharmacopoeia or notify the board what alternative scientifically valid testing methodology the lab is fol- lowing for each quality assurance test. The board may require third- party validation of any monograph or analytical method followed by the lab to ensure the methodology produces scientifically accurate results prior to them using those standards when conducting required quality assurance tests. (4) As a condition of accreditation, the board may require third- party validation and ongoing monitoring of a lab's basic proficiency to correctly execute the analytical methodologies employed by the lab. (5) Labs must adopt and follow minimum good lab practices (GLPs), and maintain internal standard operating procedures (SOPs), and a quality control/quality assurance (QC/QA) program as specified by the board. The board or authorized third-party organization can conduct audits of a lab's GLPs, SOPs, QC/QA, and inspect all other related re- cords. (6) The general body of required quality assurance tests for mar- ijuana flowers, infused products, and extracts may include moisture content, potency analysis, foreign matter inspection, microbiological screening, pesticide and other chemical residue and metals screening, and residual solvents levels. (7) Table of required quality assurance tests. Product Test(s) Required Sample Size Needed to Complete all Tests Flowers to be sold as usable marijuana (see note below) 1. Moisture content 2. Potency analysis 3. Foreign matter inspection 4. Microbiological screening Up to 7 grams Flowers to be used to make an extract (nonsol- vent) like kief, hashish, bubble hash, or infused dairy butter, or oils or fats derived from natural sources None None Extract (nonsolvent) like kief, hashish, bubble hash or infused dairy butter, or oils or fats de- rived from natural sources 1. Potency analysis 2. Foreign matter inspection 3. Microbiological screening Up to 7 grams Flowers to be used to make an extract (solvent based), made with a CO2 extractor, or with a food grade ethanol or glycerin 1. Foreign matter inspection 2. Microbiological screening Up to 7 grams [ 24 ]OTS-5501.3PH.1 Page 37 of 246 Product Test(s) Required Sample Size Needed to Complete all Tests Extract (solvent based) made using n-butane, isobutane, propane, heptane, or other solvents or gases approved by the board of at least 99% pu- rity 1. Potency analysis 2. Residual solvent test 3. Microbiological screening (only if using flowers and other plant material that failed ini- tial test) Up to 2 grams Extract made with a CO2 extractor like hash oil 1. Potency analysis 2. Microbiological screening (only if using flowers and other plant material that failed ini- tial test) Up to 2 grams Extract made with food grade ethanol 1. Potency analysis 2. Microbiological screening (only if using flowers and other plant material that failed ini- tial test) Up to 2 grams Extract made with food grade glycerin or propy- lene glycol 1. Potency analysis Up to 1 gram Infused edible 1. Potency analysis 2. Microbiological screening 1 unit Infused liquid like a soda or tonic 1. Potency analysis 2. Microbiological screening 1 unit Infused topical 1. Potency analysis 1 unit (8) Independent testing labs may request additional sample mate- rial in excess of amounts listed in the table in subsection (7) of this section for the purposes of completing required quality assurance tests. Labs meeting the board's accreditation requirements may re- trieve samples from a marijuana licensee's licensed premises and transport the samples directly to the lab. (9) Labs meeting the board's accreditation requirements are not limited in the amount of useable marijuana and marijuana products they may have on their premises at any given time, but they must have re- cords to prove all marijuana and marijuana-infused products only for the testing purposes described in WAC 314-55-102. (10) At the discretion of the board, a producer or processor must provide an employee of the board or their designee samples in the amount listed in subsection (7) of this section for random compliance checks. Samples may be screened for pesticides and chemical residues, unsafe levels of metals, and used for other quality assurance tests deemed necessary by the board. All costs of this testing will be borne by the producer or processor. (11) No lot of usable flower or batch of marijuana-infused prod- uct may be sold or transported until the completion of all required quality assurance testing. (12) Any useable marijuana or marijuana-infused product that passed the required quality assurance tests may be labeled as "Class A." Only "Class A" useable marijuana or marijuana-infused product will be allowed to be sold. (13) If a lot of marijuana flowers fail a quality assurance test, any marijuana plant trim, leaf and other usable material from the same plants automatically fails quality assurance testing also. Upon appro- val of the board, a lot that fails a quality assurance test may be used to make a CO2 or solvent based extract. After processing, the CO2 or solvent based extract must still pass all required quality assur- ance tests in WAC 314-55-102. (14) At the request of the producer or processor, the board may authorize a retest to validate a failed test result on a case-by-case basis. All costs of the retest will be borne by the producer or the processor. [ 25 ]OTS-5501.3PH.1 Page 38 of 246 NEW SECTION WAC 314-55-104 Marijuana processor license extraction require- ments. (1) Processors are limited to certain methods, equipment, sol- vents, gases and mediums when creating marijuana extracts. (2) Processors may use the hydrocarbons N-butane, isobutane, pro- pane, or heptane or other solvents or gases exhibiting low to minimal potential human health-related toxicity approved by the board. These solvents must be of at least ninety-nine percent purity and a process- or must use them in a professional grade closed loop extraction system designed to recover the solvents, work in a spark free environment with proper ventilation, and follow all applicable local fire, safety and building codes in processing and the storage of the solvents. (3) Processors may use a professional grade closed loop CO2 gas extraction system where every vessel is rated to a minimum of nine hundred pounds per square inch and follow all applicable local fire, safety and building codes in processing and the storage of the sol- vents. The CO2 must be of at least ninety-nine percent purity. (4) Processors may use heat, screens, presses, steam distilla- tion, ice water, and other methods without employing solvents or gases to create kief, hashish, bubble hash, or infused dairy butter, or oils or fats derived from natural sources, and other extracts. (5) Processors may use food grade glycerin, ethanol, and propy- lene glycol solvents to create extracts. (6) Processors creating marijuana extracts must develop standard operating procedures, good manufacturing practices, and a training plan prior to producing extracts for the marketplace. Any person using solvents or gases in a closed looped system to create marijuana ex- tracts must be fully trained on how to use the system, have direct ac- cess to applicable material safety data sheets and handle and store the solvents and gases safely. (7) Parts per million for one gram of finished extract cannot ex- ceed 500 parts per million or residual solvent or gas when quality as- surance tested per RCW 69.50.348. NEW SECTION WAC 314-55-105 Packaging and labeling requirements. (1) All usa- ble marijuana and marijuana products must be stored behind a counter or other barrier to ensure a customer does not have direct access to the product. (2) Any container or packaging containing usable marijuana or marijuana products must protect the product from contamination and must not impart any toxic or deleterious substance to the usable mari- juana or marijuana product. (3) Upon the request of a retail customer, a retailer must dis- close the name of the accredited third-party testing lab and results of the required quality assurance test for any usable marijuana or other marijuana product the customer is considering purchasing. (4) usable marijuana and marijuana products may not be labeled as organic unless permitted by the United States Department of Agricul- ture in accordance with the Organic Foods Production Act. [ 26 ]OTS-5501.3PH.1 Page 39 of 246 (5) The accredited third-party testing lab and required results of the quality assurance test must be included with each lot and dis- closed to the customer buying the lot. (6) A marijuana producer must make quality assurance test results available to any processor purchasing product. A marijuana producer must label each lot of marijuana with the following information: (a) Lot number; (b) UBI number of the producer; and (c) Weight of the product. (7) Marijuana-infused products meant to be eaten, swallowed, or inhaled, must be packaged in child resistant packaging in accordance with Title 16 C.F.R. 1700 of the Poison Prevention Packaging Act or use standards specified in this subsection. Marijuana-infused product in solid or liquid form may be packaged in plastic four mil or greater in thickness and be heat sealed with no easy-open tab, dimple, corner, or flap as to make it difficult for a child to open and as a tamper- proof measure. Marijuana-infused product in liquid form may also be sealed using a metal crown cork style bottle cap. (8) A processor may provide a retailer free samples of usable marijuana packaged in a sample jar protected by a plastic or metal mesh screen to allow customers to smell the product before purchase. The sample jar may not contain more than three and one-half grams of usable marijuana. The sample jar and the usable marijuana within may not be sold to a customer and must be either returned to the licensed processor who provide the usable marijuana and sample jar or destroyed by the retailer after use in the manner described in WAC 314-55-097 and noted in the traceability system. (9) A producer or processor may not treat or otherwise adulterate usable marijuana with any organic or nonorganic chemical or other com- pound whatsoever to alter the color, appearance, weight, or smell of the usable marijuana. (10) Labels must comply with the version of NIST Handbook 130, Uniform Packaging and Labeling Regulation adopted in chapter 16-662 WAC. (11) All usable marijuana when sold at retail must include accom- panying material that contains the following warnings that state: (a) "Warning: This product has intoxicating effects and may be habit forming. Smoking is hazardous to your health"; (b) "There may be health risks associated with consumption of this product"; (c) "Should not be used by women that are pregnant or breast feeding"; (d) "For use only by adults twenty-one and older. Keep out of reach of children"; (e) "Marijuana can impair concentration, coordination, and judg- ment. Do not operate a vehicle or machinery under the influence of this drug"; (f) Statement that discloses all pesticides applied to the mari- juana plants and growing medium during production and processing. (12) All marijuana-infused products sold at retail must include accompanying material that contains the following warnings that state: (a) "There may be health risks associated with consumption of this product"; (b) "This product is infused with marijuana or active compounds of marijuana"; (c) "Should not be used by women that are pregnant or breast feeding"; [ 27 ]OTS-5501.3PH.1 Page 40 of 246 (d) "For use only by adults twenty-one and older. Keep out of reach of children"; (e) "Products containing marijuana can impair concentration, co- ordination, and judgment. Do not operate a vehicle or machinery under the influence of this drug"; (f) "Caution: When eaten or swallowed, the intoxicating effects of this drug may be delayed by two or more hours." (g) Statement that discloses all pesticides applied to the mari- juana plants and growing medium during production of the base marijua- na used to create the extract added to the infused product; and (h) Statement that discloses the type of extraction method, in- cluding any solvents, gases, or other chemicals or compounds used to produce or that are added to the extract. (13) Labels affixed to the container or package containing usable marijuana sold at retail must include: (a) The business or trade name and Washington state unified busi- ness identifier number of the licensees that produced, processed, and sold the usable marijuana; (b) Lot number; (c) Concentration of THC, THCA, CBD, including a total of active cannabinoids (potency profile); (d) Net weight in ounces and grams or volume as appropriate; (e) Warnings that state: "This product has intoxicating effects and may be habit forming"; (f) Statement that "This product may be unlawful outside of Wash- ington state"; (g) Date of harvest. (h) The board may create a logo that must be placed on all usable marijuana and marijuana-infused products. (14) Sample label mock up for a container or package containing usable marijuana sold at retail with required information: (15) Labels affixed to the container or package containing mari- juana-infused products sold at retail must include: (a) The business or trade name and Washington state unified busi- ness identifier number of the licensees that produced, processed, and sold the usable marijuana; (b) Lot numbers of all base marijuana used to create the extract; (c) Batch number; (d) Date manufactured; [ 28 ]OTS-5501.3PH.1 Page 41 of 246 (e) Best by date; (f) Recommended serving size and the number of servings contained within the unit, including total milligrams of active tetrahydrocanna- binol (THC), or Delta 9; (g) Net weight in ounces and grams, or volume as appropriate; (h) List of all ingredients and any allergens; (i) "Caution: When eaten or swallowed, the intoxicating effects of this drug may be delayed by two or more hours." (j) If a marijuana extract was added to the product, disclosure of the type of extraction process and any solvent, gas, or other chem- ical used in the extraction process, or any other compound added to the extract; (k) Warnings that state: "This product has intoxicating effects and may be habit forming"; (l) Statement that "This product may be unlawful outside of Wash- ington state"; (m) The board may create a logo that must be placed on all usable marijuana and marijuana-infused products. (16) Sample label mock up (front and back) for a container or package containing marijuana-infused products sold at retail with re- quired information: (Front of label) (Back of label) NEW SECTION WAC 314-55-120 Ownership changes. (1) Licensees must receive pri- or board approval before making any of the following ownership changes (see WAC 314-55-035 for the definition of "true party of interest"): [ 29 ]OTS-5501.3PH.1 Page 42 of 246 Type of change Type of application Fee Change in the qualifying per- sons in a: Sole proprietorship, general partner- ship, limited partnership, or limited liability partnership. New application.Application fee and annual fee for current li- cense privilege. Change in the qualifying per- sons for a pub- licly or privately held corporation. The board will waive the fee for a corporate change when the proposed change consists solely of dropping an approved offi- cer. Application for change in corpo- rate officer and/or stock- holder. $75 Change in the qualifying per- sons in a limited liability compa- ny. Application for change of limi- ted liability company mem- ber and/or man- ager. $75 (2) The board may inquire into all matters in connection with any such sale of stock/units or proposed change in officers/members. NEW SECTION WAC 314-55-125 Change of location. (1) Changing your marijuana license to a new location requires an application, per the process outlined in WAC 314-55-020. (2) A change of location occurs any time a move by the licensee results in any change to the physical location address. NEW SECTION WAC 314-55-130 Change of business name. (1) If you wish to change the name of your business, you must apply for a change of trade name with the department of revenue, business license service. (2) If you wish to change your corporation or limited liability company name, you must apply for a change of name through the secreta- ry of state. (3) See chapter 434-12 WAC for guidelines for trade names. [ 30 ]OTS-5501.3PH.1 Page 43 of 246 NEW SECTION WAC 314-55-135 Discontinue marijuana sales. You must notify the board's enforcement and education division in writing if you plan to stop doing business for more than thirty days, or if you plan to per- manently discontinue marijuana sales. NEW SECTION WAC 314-55-140 Death or incapacity of a marijuana licensee. (1) The appointed guardian, executor, administrator, receiver, trustee, or assignee must notify the board's licensing and regulation division in the event of the death, incapacity, receivership, bankruptcy, or as- signment for benefit of creditors of any licensee. (2) The board may give the appointed guardian, executor, adminis- trator, receiver, trustee, or assignee written approval to continue marijuana sales on the licensed business premises for the duration of the existing license and to renew the license when it expires. (a) The person must be a resident of the state of Washington. (b) A criminal background check may be required. (3) When the matter is resolved by the court, the true party(ies) of interest must apply for a marijuana license for the business. NEW SECTION WAC 314-55-145 Are marijuana license fees refundable? When a li- cense is suspended or canceled, or the licensed business is discontin- ued, the unused portion of the marijuana license fee will not be re- funded. NEW SECTION WAC 314-55-147 What hours may a marijuana retailer licensee con- duct sales? A marijuana retailer licensee may sell usable marijuana, marijuana-infused products, and marijuana paraphernalia between the hours of 8 a.m. and 12 a.m. NEW SECTION WAC 314-55-150 What are the forms of acceptable identification? (1) Following are the forms of identification that are acceptable to verify a person's age for the purpose of purchasing marijuana: (a) Driver's license, instruction permit, or identification card of any state, or province of Canada, from a U.S. territory or the Dis- [ 31 ]OTS-5501.3PH.1 Page 44 of 246 trict of Columbia, or "identicard" issued by the Washington state de- partment of licensing per RCW 46.20.117; (b) United States armed forces identification card issued to ac- tive duty, reserve, and retired personnel and the personnel's depend- ents, which may include an embedded, digital signature in lieu of a visible signature; (c) Passport; (d) Merchant Marine identification card issued by the United States Coast Guard; and (e) Enrollment card issued by the governing authority of a feder- ally recognized Indian tribe located in Washington, if the enrollment card incorporates security features comparable to those implemented by the department of licensing for Washington driver's licenses. (2) The identification document is not acceptable to verify age if expired. NEW SECTION WAC 314-55-155 Advertising. (1) Advertising by retail licensees. The board limits each retail licensed premises to one sign identifying the retail outlet by the licensee's business name or trade name that is affixed or hanging in the windows or on the outside of the premises that is visible to the general public from the public right of way. The size of the sign is limited to sixteen hundred square inches. (2) General. All marijuana advertising and labels of useable mar- ijuana and marijuana-infused products sold in the state of Washington may not contain any statement, or illustration that: (a) Is false or misleading; (b) Promotes over consumption; (c) Represents the use of marijuana has curative or therapeutic effects; (d) Depicts a child or other person under legal age to consume marijuana, or includes: (i) Objects, such as toys, characters, or cartoon characters sug- gesting the presence of a child, or any other depiction designed in any manner to be especially appealing to children or other persons un- der legal age to consume marijuana; or (ii) Is designed in any manner that would be especially appealing to children or other persons under twenty-one years of age. (3) No licensed marijuana producer, processor, or retailer shall place or maintain, or cause to be placed or maintained, an advertise- ment of marijuana, usable marijuana, or a marijuana-infused product in any form or through any medium whatsoever: (a) Within one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, library, or a game arcade admission to which it is not restricted to persons aged twenty-one years or older; (b) On or in a public transit vehicle or public transit shelter; or (c) On or in a publicly owned or operated property. (4) Giveaways, coupons, and distribution of branded merchandise are banned. (5) All advertising must contain the following warnings: [ 32 ]OTS-5501.3PH.1 Page 45 of 246 (a) "This product has intoxicating effects and may be habit form- ing."; (b) "Marijuana can impair concentration, coordination, and judg- ment. Do not operate a vehicle or machinery under the influence of this drug."; (c) "There may be health risks associated with consumption of this product."; and (d) "For use only by adults twenty-one and older. Keep out of the reach of children." NEW SECTION WAC 314-55-160 Objections to marijuana license applications. (1) How can persons, cities, counties, tribal governments, or port author- ities object to the issuance of a marijuana license? Per RCW 69.50.331, the board will notify cities, counties, tribal governments, and port authorities of the following types of marijuana applications. In addition to these entities, any person or group may comment in writing to the board regarding an application. Type of application Entities the board will/may notify •Applications for an annual marijuana li- cense at a new loca- tion. •Cities and counties in which the premises is located will be noti- fied. Tribal governments and port authorities in which the premises is located may be no- tified. •Applications to change the class of an existing annual mari- juana license. •Changes of owner- ship at existing li- censed premises. •Cities and counties in which the premises is located will be noti- fied. Tribal governments and port authorities in which the premises is located may be no- tified. (2) What will happen if a person or entity objects to a marijuana license application? When deciding whether to issue or deny a marijua- na license application, the board will give substantial weight to in- put from governmental jurisdictions in which the premises is located based upon chronic illegal activity associated with the applicant's operations of the premises proposed to be licensed or the applicant's operation of any other licensed premises; and other persons or groups. Note: Per RCW 69.50.331, the board shall not issue a new marijuana li- cense if any of the following are within one thousand feet of the premises to be licensed: Any elementary or secondary schools, play- grounds, recreation centers or facilities, child care centers, public [ 33 ]OTS-5501.3PH.1 Page 46 of 246 parks, public transit centers, libraries, game arcade where admission is not restricted to persons twenty-one years of age or older. (a) If the board contemplates issuing a license over the objec- tion of a governmental jurisdiction in which the premises is located, the government subdivision may request an adjudicative hearing under the provisions of the Administrative Procedure Act, chapter 34.05 RCW. If the board, in its discretion, grants the governmental jurisdic- tion(s) an adjudicative hearing, the applicant will be notified and given the opportunity to present evidence at the hearing. (b) If the board denies a marijuana license application based on the objection from a governmental jurisdiction, the applicant(s) may either: (i) Reapply for the license no sooner than one year from the date on the final order of denial; or (ii) Submit a written request on a form provided by the board for an adjudicative hearing under the provisions of the Administrative Procedure Act, chapter 34.05 RCW. The request must be received within twenty days of the date the intent to deny notification was mailed. NEW SECTION WAC 314-55-165 Objections to marijuana license renewals. (1) How can local cities, counties, tribal governments, or port authorities object to the renewal of a marijuana license? (a) The board will give governmental jurisdictions approximately ninety days written notice of premises that hold annual marijuana li- censes in that jurisdiction that are up for renewal. (b) Per RCW 69.50.331, if a county, city, tribal government, or port authority wants to object to the renewal of a marijuana license in its jurisdiction, it must submit a letter to the board detailing the reason(s) for the objection and a statement of all facts on which the objections are based. (c) The county, city, tribal government, or port authority may submit a written request to the board for an extension for good cause shown. (d) This letter must be received by the board at least thirty days before the marijuana license expires. The objection must state specific reasons and facts that show issuance of the marijuana license at the proposed location or to the applicant business how it will det- rimentally impact the safety, health, or welfare of the community. (e) If the objection is received within thirty days of the expi- ration date or the licensee has already renewed the license, the ob- jection will be considered as a complaint and possible license revoca- tion may be pursued by the enforcement division. (f) Objections from the public will be referred to the appropri- ate city, county, tribal government, or port authority for action un- der subsection (2) of this section. Upon receipt of the objection, the board licensing and regulation division will acknowledge receipt of the objection(s) and forward to the appropriate city, county, tribal government, or port authority. Such jurisdiction may or may not, based on the public objection, request nonrenewal. (2) What will happen if a city, county, tribal government, or port authority objects to the renewal of a marijuana license? The board will give substantial weight to a city, county, tribal govern- [ 34 ]OTS-5501.3PH.1 Page 47 of 246 ment, or port authority objection to a marijuana license renewal of a premises in its jurisdiction based upon chronic illegal activity asso- ciated with the licensee's operation of the premises. Based on the ju- risdiction's input and any information in the licensing file, the board will decide to either renew the marijuana license, or to pursue nonrenewal. (a) Board decides to renew the marijuana license: (b) Board decides to pursue nonrenewal of the marijuana license: (i) The board will notify the jurisdiction(s) in writ- ing of its intent to renew the license, stating the rea- son for this decision. (i) The board will notify the licensee in writing of its intent to not renew the license, stating the reason for this decision. (ii) The jurisdiction(s) may contest the renewal and re- quest an adjudicative hear- ing under the provisions of the Administrative Proce- dure Act (chapter 34.05 RCW) by submitting a written request on a form provided by the board. The request must be received within twenty days of the date the intent to renew notification was mailed. If the board, in its discretion, grants the governmental jurisdiction(s) an adjudica- tive hearing, the applicant will be notified and given the opportunity to present evidence at the hearing. (ii) The licensee may con- test the nonrenewal action and request an adjudica- tive hearing under the pro- visions of the Administra- tive Procedure Act (chap- ter 34.05 RCW) by sub- mitting a written request on a form provided by the board. The request must be received within twenty days of the date the intent to deny notification was mailed. (iii) If the licensee requests a hearing, the governmen- tal jurisdiction will be no- tified. (iv) During the hearing and any subsequent appeal process, the licensee is is- sued a temporary operat- ing permit for the marijua- na license until a final de- cision is made. NEW SECTION WAC 314-55-505 What are the procedures for notifying a licensee of an alleged violation of a liquor control board statute or regula- tion? (1) When an enforcement officer believes that a licensee has violated a board statute or regulation, the officer may prepare an ad- ministrative violation notice (AVN) and mail or deliver the notice to the licensee, licensee's agent, or employee. (2) The AVN notice will include: (a) A complete narrative description of the violation(s) the of- ficer is charging; (b) The date(s) of the violation(s); (c) A copy of the law(s) and/or regulation(s) allegedly violated; (d) An outline of the licensee's options as outlined in WAC 314-55-510; and (e) The recommended penalty. [ 35 ]OTS-5501.3PH.1 Page 48 of 246 (i) If the recommended penalty is the standard penalty, see WAC 314-55-520 through 314-55-535 for licensees. (ii) For cases in which there are aggravating or mitigating cir- cumstances, the penalty may be adjusted from the standard penalty. NEW SECTION WAC 314-55-506 What is the process once the board summarily sus- pends a marijuana license? (1) The board may summarily suspend any li- cense after the board's enforcement division has completed a prelimi- nary staff investigation of the violation and upon a determination that immediate cessation of the licensed activities is necessary for the protection or preservation of the public health, safety, or wel- fare. (2) Suspension of any license under this provision shall take ef- fect immediately upon personal service on the licensee or employee thereof of the summary suspension order unless otherwise provided in the order. (3) When a license has been summarily suspended by the board, an adjudicative proceeding for revocation or other action must be prompt- ly instituted before an administrative law judge assigned by the of- fice of administrative hearings. If a request for an administrative hearing is timely filed by the licensee or permit holder, then a hear- ing shall be held within ninety days of the effective date of the sum- mary suspension ordered by the board. NEW SECTION WAC 314-55-507 How may a licensee challenge the summary suspen- sion of his or her marijuana license? (1) Upon summary suspension of a license by the board pursuant to WAC 314-55-506, an affected licensee may petition the board for a stay of suspension pursuant to RCW 34.05.467 and 34.05.550(1). A petition for a stay of suspension must be received by the board within fifteen days of service of the summary suspension order. The petition for stay shall state the basis on which the stay is sought. (2) A hearing shall be held before an administrative law judge within fourteen days of receipt of a timely petition for stay. The hearing shall be limited to consideration of whether a stay should be granted, or whether the terms of the suspension may be modified to al- low the conduct of limited activities under current licenses or per- mits. (3) Any hearing conducted pursuant to subsection (2) of this sec- tion shall be a brief adjudicative proceeding under RCW 34.05.485. The agency record for the hearing shall consist of the documentary infor- mation upon which the summary suspension was based. The licensee or permit holder shall have the burden of demonstrating by clear and con- vincing evidence that: (a) The licensee is likely to prevail upon the merits at hearing; [ 36 ]OTS-5501.3PH.1 Page 49 of 246 (b) Without relief, the licensee will suffer irreparable injury. For purposes of this section, elimination of income from licensed ac- tivities shall not be deemed irreparable injury; (c) The grant of relief will not substantially harm other parties to the proceedings; and (d) The threat to the public health, safety, or welfare is not sufficiently serious to justify continuation of the suspension, or that modification of the terms of the suspension will adequately pro- tect the public interest. (4) The initial order on stay shall be effective immediately upon service unless another date is specified in the order. NEW SECTION WAC 314-55-508 Review of orders on stay. (1) The licensee, or agency, may petition the board for review of an initial order on stay. Any petition for review must be in writing and received by the board within ten days of service of the initial order. If neither party has requested review within ten days of service, the initial order shall be deemed the final order of the board for purposes of RCW 34.05.467. (2) If the board receives a timely petition for review, the board shall consider the petition within fifteen days of service of the pe- tition for review. Consideration on review shall be limited to the re- cord of the hearing on stay. (3) The order of the board on the petition for review shall be effective upon personal service unless another date is specified in the order and is final pursuant to RCW 34.05.467. Final disposition of the petition for stay shall not affect subsequent administrative pro- ceedings for suspension or revocation of a license. NEW SECTION WAC 314-55-510 What options does a licensee have once he/she re- ceives a notice of an administrative violation? (1) A licensee has twenty days from receipt of the notice to: (a) Accept the recommended penalty; or (b) Request a settlement conference in writing; or (c) Request an administrative hearing in writing. A response must be submitted on a form provided by the agency. (2) What happens if a licensee does not respond to the adminis- trative violation notice within twenty days? (a) If a licensee does not respond to the administrative viola- tion notice within twenty days, the recommended suspension penalty will go into effect. (b) If the penalty does not include a suspension, the licensee must pay a twenty-five percent late fee in addition to the recommended penalty. The recommended penalty plus the late fee must be received within thirty days of the violation notice issue date. (3) What are the procedures when a licensee requests a settlement conference? [ 37 ]OTS-5501.3PH.1 Page 50 of 246 (a) If the licensee requests a settlement conference, the hearing examiner or designee will contact the licensee to discuss the viola- tion. (b) Both the licensee and the hearing examiner or designee will discuss the circumstances surrounding the charge, the recommended pen- alty, and any aggravating or mitigating factors. (c) If a compromise is reached, the hearing examiner or designee will prepare a compromise settlement agreement. The hearing examiner or designee will forward the compromise settlement agreement, author- ized by both parties, to the board, or designee, for approval. (i) If the board, or designee, approves the compromise, a copy of the signed settlement agreement will be sent to the licensee and will become part of the licensing history. (ii) If the board, or designee, does not approve the compromise, the licensee will be notified of the decision. The licensee will be given the option to renegotiate with the hearings examiner or desig- nee, of accepting the originally recommended penalty, or of requesting an administrative hearing on the charges. (d) If the licensee and the hearing examiner or designee cannot reach agreement on a settlement proposal, the licensee may accept the originally recommended penalty, or the hearing examiner or designee will forward a request for an administrative hearing to the board's hearings coordinator. NEW SECTION WAC 314-55-515 What are the penalties if a marijuana license holder violates a marijuana law or rule? (1) The purpose of WAC 314-55-515 through 314-55-540 is to outline what penalty a marijuana licensee can expect if a licensee or employee violates a liquor con- trol board law or rule. (WAC rules listed in the categories provide reference areas, and may not be all inclusive.) (2) Penalties for violations by marijuana licensees or employees are broken down into four categories: (a) Group One—Public safety violations, WAC 314-55-520. (b) Group Two—Regulatory violations, WAC 314-55-525. (c) Group Three—License violations, WAC 314-55-530. (d) Group Four—Producer violations involving the manufacture, supply, and/or distribution of marijuana by nonretail licensees and prohibited practices between nonretail licensees and retail licensees, WAC 314-55-535. (3) For the purposes of chapter 314-55 WAC, a three-year window for violations is measured from the date one violation occurred to the date a subsequent violation occurred. (4) The following schedules are meant to serve as guidelines. Based on mitigating or aggravating circumstances, the liquor control board may impose a different penalty than the standard penalties out- lined in these schedules. Based on mitigating circumstances, the board may offer a monetary option in lieu of suspension, or alternate penal- ty, during a settlement conference as outlined in WAC 314-55-510(3). [ 38 ]OTS-5501.3PH.1 Page 51 of 246 (a) Mitigating circumstances (b) Aggravating circumstances Mitigating circumstan- ces that may result in fewer days of suspen- sion and/or a lower monetary option may in- clude demonstrated business policies and/or practices that reduce the risk of future violations. Aggravating circumstances that may result in increased days of suspension, and/or increased monetary option, and/or cancellation of mari- juana license may include business operations or be- haviors that create an in- creased risk for a violation and/or intentional commis- sion of a violation. Examples include:Examples include: • Having a signed ac- knowledgment of the business' responsible handling and sales poli- cies on file for each em- ployee; • Failing to call 911 for local law enforcement or medical assistance when requested by a customer, a liquor control board officer, or when peo- ple have sustained injuries. • Having an employee training plan that in- cludes annual training on marijuana laws. NEW SECTION WAC 314-55-520 Group 1 violations against public safety. Group 1 violations are considered the most serious because they present a di- rect threat to public safety. Based on chapter 69.50 RCW, some viola- tions have only a monetary option. Some violations beyond the first violation do not have a monetary option upon issuance of a violation notice. The liquor control board may offer a monetary option in lieu of suspension days based on mitigating circumstances as outlined in WAC 314-55-515(4). Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Violations involving mi- nors: 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Sale or service to minor: Sale of marijuana and/or paraphernalia to a person under twenty-one years of age WAC 314-55-079 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Allowing a minor to fre- quent a restricted area. RCW 69.50.357 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine Employee under legal age. RCW 69.50.357 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine Licensee and/or employee open and/or consuming marijuana on a retail li- censed premises. RCW 69.50.357 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine Conduct violations: Criminal conduct: Permit- ting or engaging in crimi- nal conduct. 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license [ 39 ]OTS-5501.3PH.1 Page 52 of 246 Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Using unauthorized pesti- cides, soil amendments, fertilizers, other crop pro- duction aids. WAC 314-55-020(8) WAC 314-55-083(4) WAC 314-55-087 (1)(f) 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Adulterate usable marijua- na with organic or nonor- ganic chemical or other compound WAC 314-55-105(8) 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Using unauthorized sol- vents or gases in process- ing WAC 314-55-104 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Refusal to allow an inspec- tion and/or obstructing a law enforcement officer from performing their offi- cial duties. WAC 314-55-050 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Marijuana purchased from an unauthorized source. Cancellation of license Marijuana sold to an un- authorized source. Cancellation of license Sales in excess of transac- tion limitations. WAC 314-55-095(3) Cancellation of license NEW SECTION WAC 314-55-525 Group 2 regulatory violations. Group 2 violations are violations involving general regulation and administration of re- tail or nonretail licenses. Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Hours of service: Sales of marijuana between 12:00 a.m. and 8:00 a.m. 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Advertising: Violations (statements/illustrations). WAC 314-55-155(2) 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Advertising violations – Sign exceeding 1600 square inches; within 1000 feet of prohibited areas; on or in public transit vehicles, shelters, or publicly owned or operated property. RCW 69.50.357 RCW 69.50.369 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine Packaging and/or label- ing violations (processor/ retailer). WAC 314-55-105 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Licensee/employee failing to display required secur- ity badge. WAC 314-55-083(1) 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license [ 40 ]OTS-5501.3PH.1 Page 53 of 246 Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Failure to maintain re- quired security alarm and surveillance systems. WAC 314-55-083 (2) and (3) 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Records: Improper record- keeping. WAC 314-55-087 WAC 314-55-089 (3), (4), and (5) 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Failure to submit month- ly tax reports and/or pay- ments. WAC 314-55-089 WAC 314-55-092 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Signs: Failure to post re- quired signs. WAC 314-55-086 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Failure to utilize and/or maintain traceability (processor or retail licen- see). WAC 314-55-083(4) 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Violation of transporta- tion requirements. WAC 314-55-085 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Exceeding maximum serving requirements for marijuana-infused prod- ucts. WAC 314-55-095(2) 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Failure for a processor to meet marijuana waste disposal requirements. WAC 314-55-097 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Failure to maintain standardized scale re- quirements (processor/ retailer). WAC 314-55-099 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Marijuana processor ex- traction requirements. WAC 314-55-104 5-day suspension or $500 monetary option 10-day suspension or $2,500 monetary option 30-day suspension Cancellation of license Retail outlet selling unau- thorized products. RCW 69.50.357 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine Retailer displaying prod- ucts in a manner visible to the general public from a public right of way. RCW 69.50.357 $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine $1,000 monetary fine NEW SECTION WAC 314-55-530 Group 3 license violations. Group 3 violations are violations involving licensing requirements, license classification, and special restrictions. [ 41 ]OTS-5501.3PH.1 Page 54 of 246 Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window True party of interest vio- lation. WAC 314-55-035 Cancellation of license Failure to furnish re- quired documents. WAC 314-55-050 Cancellation of license Misrepresentation of fact. WAC 314-55-050 Cancellation of license Operating plan: Violations of a board-ap- proved operating plan. WAC 314-55-020 5-day suspension or $500 monetary option 10-day suspension or $1,500 monetary option 30-day suspension Cancellation of license Failing to gain board ap- proval for changes in ex- isting ownership. WAC 314-55-120 30-day suspension Cancellation of license Failure to maintain re- quired insurance. WAC 314-55-080 30-day suspension Cancellation of license NEW SECTION WAC 314-55-535 Group 4 marijuana producer violations. Group 4 vi- olations are violations involving the manufacture, supply, and/or dis- tribution of marijuana by marijuana producer licensees and prohibited practices between a marijuana producer licensee and a marijuana re- tailer licensee. Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Unauthorized sale to a re- tail licensee. WAC 314-55-075 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Failure to utilize and/or maintain traceability. WAC 314-55-083(4) $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Packaging and/or label- ing violations (producer). WAC 314-55-105 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Unauthorized product/ unapproved storage or delivery. $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Failure for a producer to meet marijuana waste disposal requirements. WAC 314-55-097 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Records: Improper re- cordkeeping. WAC 314-55-087 WAC 314-55-089 (2) and (4) WAC 314-55-092 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Violation of transporta- tion requirements. WAC 314-55-085 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license [ 42 ]OTS-5501.3PH.1 Page 55 of 246 Violation Type 1st Violation 2nd Violation in a three-year window 3rd Violation in a three-year window 4th Violation in a three-year window Failure to maintain re- quired security alarm and surveillance systems. WAC 314-55-083 (2) and (3) $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Failure to maintain standardized scale re- quirements (producer). WAC 314-55-099 $2,500 monetary fine $5,000 monetary fine and destruction of 25% of har- vestable plants $15,000 monetary fine and destruction of 50% of har- vestable plants Cancellation of license Violation. NEW SECTION WAC 314-55-540 Information about marijuana license suspensions. (1) On the date a marijuana license suspension goes into effect, a liquor control officer will post a suspension notice in a conspicuous place on or about the licensed premises. This notice will state that the license has been suspended by order of the liquor control board due to a violation of a board law or rule. (2) During the period of marijuana license suspension, the licen- see and employees: (a) Are required to maintain compliance with all applicable mari- juana laws and rules; (b) May not remove, alter, or cover the posted suspension notice, and may not permit another person to do so; (c) May not place or permit the placement of any statement on the licensed premises indicating that the premises have been closed for any reason other than as stated in the suspension notice; (d) May not advertise by any means that the licensed premises is closed for any reason other than as stated in the liquor control board's suspension notice. (3) During the period of marijuana license suspension: (a) A marijuana retailer or marijuana processor licensee may not operate his/her business during the dates and times of suspension. (b) There is no sale, delivery, service, destruction, removal, or receipt of marijuana during a license suspension. (c) A producer of marijuana may do whatever is necessary as a part of the producing process to keep current stock that is on hand at the time of the suspension from spoiling or becoming unsalable during a suspension, provided it does not include processing the product. The producer may not receive any agricultural products used in the produc- tion of marijuana during the period of suspension. [ 43 ]OTS-5501.3PH.1 Page 56 of 246 _____________________________________________ BILL REQUEST - CODE REVISER'S OFFICE _____________________________________________ BILL REQ. #: I-2465.1/11 ATTY/TYPIST: AI:crs BRIEF DESCRIPTION: Initiative Measure No. 502 Filed July 8, 2011 PH.1 Page 57 of 246 Code Rev/AI:crs 1 I-2465.1/11 Initiative Measure No. 502 filed July 8, 2011 AN ACT Relating to marijuana; amending RCW 69.50.101, 69.50.401, 69.50.4013, 69.50.412, 69.50.4121, 69.50.500, 46.20.308, 46.61.502, 46.61.504, 46.61.50571, and 46.61.506; reenacting and amending RCW 69.50.505, 46.20.3101, and 46.61.503; adding a new section to chapter 46.04 RCW; adding new sections to chapter 69.50 RCW; creating new sections; and prescribing penalties. BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON: PART I INTENT NEW SECTION. Sec. 1. The people intend to stop treating adult marijuana use as a crime and try a new approach that: (1) Allows law enforcement resources to be focused on violent and property crimes; (2) Generates new state and local tax revenue for education, health care, research, and substance abuse prevention; and (3) Takes marijuana out of the hands of illegal drug organizations and brings it under a tightly regulated, state-licensed system similar to that for controlling hard alcohol. This measure authorizes the state liquor control board to regulate and tax marijuana for persons twenty-one years of age and older, and add a new threshold for driving under the influence of marijuana. PART II DEFINITIONS PH.1 Page 58 of 246 Code Rev/AI:crs 2 I-2465.1/11 Sec. 2. RCW 69.50.101 and 2010 c 177 s 1 are each amended to read as follows: Unless the context clearly requires otherwise, definitions of terms shall be as indicated where used in this chapter: (a) "Administer" means to apply a controlled substance, whether by injection, inhalation, ingestion, or any other means, directly to the body of a patient or research subject by: (1) a practitioner authorized to prescribe (or, by the practitioner's authorized agent); or (2) the patient or research subject at the direction and in the presence of the practitioner. (b) "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser. It does not include a common or contract carrier, public warehouseperson, or employee of the carrier or warehouseperson. (c) "Board" means the state board of pharmacy. (d) "Controlled substance" means a drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or board rules. (e)(1) "Controlled substance analog" means a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance in Schedule I or II and: (i) that has a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance included in Schedule I or II; or (ii) with respect to a particular individual, that the individual represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance included in Schedule I or II. (2) The term does not include: (i) a controlled substance; PH.1 Page 59 of 246 Code Rev/AI:crs 3 I-2465.1/11 (ii) a substance for which there is an approved new drug application; (iii) a substance with respect to which an exemption is in effect for investigational use by a particular person under Section 505 of the federal Food, Drug and Cosmetic Act, 21 U.S.C. Sec. 355, to the extent conduct with respect to the substance is pursuant to the exemption; or (iv) any substance to the extent not intended for human consumption before an exemption takes effect with respect to the substance. (f) "Deliver" or "delivery," means the actual or constructive transfer from one person to another of a substance, whether or not there is an agency relationship. (g) "Department" means the department of health. (h) "Dispense" means the interpretation of a prescription or order for a controlled substance and, pursuant to that prescription or order, the proper selection, measuring, compounding, labeling, or packaging necessary to prepare that prescription or order for delivery. (i) "Dispenser" means a practitioner who dispenses. (j) "Distribute" means to deliver other than by administering or dispensing a controlled substance. (k) "Distributor" means a person who distributes. (l) "Drug" means (1) a controlled substance recognized as a drug in the official United States pharmacopoeia/national formulary or the official homeopathic pharmacopoeia of the United States, or any supplement to them; (2) controlled substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in individuals or animals; (3) controlled substances (other than food) intended to affect the structure or any function of the body of individuals or animals; and (4) controlled substances intended for use as a component of any article specified in (1), (2), or (3) of this subsection. The term does not include devices or their components, parts, or accessories. PH.1 Page 60 of 246 Code Rev/AI:crs 4 I-2465.1/11 (m) "Drug enforcement administration" means the drug enforcement administration in the United States Department of Justice, or its successor agency. (n) "Immediate precursor" means a substance: (1) that the state board of pharmacy has found to be and by rule designates as being the principal compound commonly used, or produced primarily for use, in the manufacture of a controlled substance; (2) that is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance; and (3) the control of which is necessary to prevent, curtail, or limit the manufacture of the controlled substance. (o) "Isomer" means an optical isomer, but in RCW 69.50.101(((r))) (x)(5), 69.50.204(a) (12) and (34), and 69.50.206(b)(4), the term includes any geometrical isomer; in RCW 69.50.204(a) (8) and (42), and 69.50.210(c) the term includes any positional isomer; and in RCW 69.50.204(a)(35), 69.50.204(c), and 69.50.208(a) the term includes any positional or geometric isomer. (p) "Lot" means a definite quantity of marijuana, useable marijuana, or marijuana-infused product identified by a lot number, every portion or package of which is uniform within recognized tolerances for the factors that appear in the labeling. (q) "Lot number" shall identify the licensee by business or trade name and Washington state unified business identifier number, and the date of harvest or processing for each lot of marijuana, useable marijuana, or marijuana-infused product. (r) "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. The term does not include the preparation, compounding, packaging, repackaging, labeling, or relabeling of a controlled substance: PH.1 Page 61 of 246 Code Rev/AI:crs 5 I-2465.1/11 (1) by a practitioner as an incident to the practitioner's administering or dispensing of a controlled substance in the course of the practitioner's professional practice; or (2) by a practitioner, or by the practitioner's authorized agent under the practitioner's supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale. (((q))) (s) "Marijuana" or "marihuana" means all parts of the plant Cannabis, whether growing or not, with a THC concentration greater than 0.3 percent on a dry weight basis; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. (((r))) (t) "Marijuana processor" means a person licensed by the state liquor control board to process marijuana into useable marijuana and marijuana-infused products, package and label useable marijuana and marijuana-infused products for sale in retail outlets, and sell useable marijuana and marijuana-infused products at wholesale to marijuana retailers. (u) "Marijuana producer" means a person licensed by the state liquor control board to produce and sell marijuana at wholesale to marijuana processors and other marijuana producers. (v) "Marijuana-infused products" means products that contain marijuana or marijuana extracts and are intended for human use. The term "marijuana-infused products" does not include useable marijuana. (w) "Marijuana retailer" means a person licensed by the state liquor control board to sell useable marijuana and marijuana-infused products in a retail outlet. (x) "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable PH.1 Page 62 of 246 Code Rev/AI:crs 6 I-2465.1/11 origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis: (1) Opium, opium derivative, and any derivative of opium or opium derivative, including their salts, isomers, and salts of isomers, whenever the existence of the salts, isomers, and salts of isomers is possible within the specific chemical designation. The term does not include the isoquinoline alkaloids of opium. (2) Synthetic opiate and any derivative of synthetic opiate, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of the isomers, esters, ethers, and salts is possible within the specific chemical designation. (3) Poppy straw and concentrate of poppy straw. (4) Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives or ecgonine or their salts have been removed. (5) Cocaine, or any salt, isomer, or salt of isomer thereof. (6) Cocaine base. (7) Ecgonine, or any derivative, salt, isomer, or salt of isomer thereof. (8) Any compound, mixture, or preparation containing any quantity of any substance referred to in subparagraphs (1) through (7). (((s))) (y) "Opiate" means any substance having an addiction- forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. The term includes opium, substances derived from opium (opium derivatives), and synthetic opiates. The term does not include, unless specifically designated as controlled under RCW 69.50.201, the dextrorotatory isomer of 3-methoxy-n- methylmorphinan and its salts (dextromethorphan). The term includes the racemic and levorotatory forms of dextromethorphan. (((t))) (z) "Opium poppy" means the plant of the species Papaver somniferum L., except its seeds. (((u))) (aa) "Person" means individual, corporation, business trust, estate, trust, partnership, association, joint venture, PH.1 Page 63 of 246 Code Rev/AI:crs 7 I-2465.1/11 government, governmental subdivision or agency, or any other legal or commercial entity. (((v))) (bb) "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing. (((w))) (cc) "Practitioner" means: (1) A physician under chapter 18.71 RCW; a physician assistant under chapter 18.71A RCW; an osteopathic physician and surgeon under chapter 18.57 RCW; an osteopathic physician assistant under chapter 18.57A RCW who is licensed under RCW 18.57A.020 subject to any limitations in RCW 18.57A.040; an optometrist licensed under chapter 18.53 RCW who is certified by the optometry board under RCW 18.53.010 subject to any limitations in RCW 18.53.010; a dentist under chapter 18.32 RCW; a podiatric physician and surgeon under chapter 18.22 RCW; a veterinarian under chapter 18.92 RCW; a registered nurse, advanced registered nurse practitioner, or licensed practical nurse under chapter 18.79 RCW; a naturopathic physician under chapter 18.36A RCW who is licensed under RCW 18.36A.030 subject to any limitations in RCW 18.36A.040; a pharmacist under chapter 18.64 RCW or a scientific investigator under this chapter, licensed, registered or otherwise permitted insofar as is consistent with those licensing laws to distribute, dispense, conduct research with respect to or administer a controlled substance in the course of their professional practice or research in this state. (2) A pharmacy, hospital or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state. (3) A physician licensed to practice medicine and surgery, a physician licensed to practice osteopathic medicine and surgery, a dentist licensed to practice dentistry, a podiatric physician and surgeon licensed to practice podiatric medicine and surgery, or a veterinarian licensed to practice veterinary medicine in any state of the United States. (((x))) (dd) "Prescription" means an order for controlled substances issued by a practitioner duly authorized by law or rule in PH.1 Page 64 of 246 Code Rev/AI:crs 8 I-2465.1/11 the state of Washington to prescribe controlled substances within the scope of his or her professional practice for a legitimate medical purpose. (((y))) (ee) "Production" includes the manufacturing, planting, cultivating, growing, or harvesting of a controlled substance. (((z))) (ff) "Retail outlet" means a location licensed by the state liquor control board for the retail sale of useable marijuana and marijuana-infused products. (gg) "Secretary" means the secretary of health or the secretary's designee. (((aa))) (hh) "State," unless the context otherwise requires, means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States. (((bb))) (ii) "THC concentration" means percent of delta-9 tetrahydrocannabinol content per dry weight of any part of the plant Cannabis, or per volume or weight of marijuana product. (jj) "Ultimate user" means an individual who lawfully possesses a controlled substance for the individual's own use or for the use of a member of the individual's household or for administering to an animal owned by the individual or by a member of the individual's household. (((cc))) (kk) "Useable marijuana" means dried marijuana flowers. The term "useable marijuana" does not include marijuana-infused products. (ll) "Electronic communication of prescription information" means the communication of prescription information by computer, or the transmission of an exact visual image of a prescription by facsimile, or other electronic means for original prescription information or prescription refill information for a Schedule III-V controlled substance between an authorized practitioner and a pharmacy or the transfer of prescription information for a controlled substance from one pharmacy to another pharmacy. NEW SECTION. Sec. 3. A new section is added to chapter 46.04 RCW to read as follows: PH.1 Page 65 of 246 Code Rev/AI:crs 9 I-2465.1/11 "THC concentration" means nanograms of delta-9 tetrahydrocannabinol per milliliter of a person's whole blood. THC concentration does not include measurement of the metabolite THC-COOH, also known as carboxy-THC. PART III LICENSING AND REGULATION OF MARIJUANA PRODUCERS, PROCESSORS, AND RETAILERS NEW SECTION. Sec. 4. (1) There shall be a marijuana producer's license to produce marijuana for sale at wholesale to marijuana processors and other marijuana producers, regulated by the state liquor control board and subject to annual renewal. The production, possession, delivery, distribution, and sale of marijuana in accordance with the provisions of this act and the rules adopted to implement and enforce it, by a validly licensed marijuana producer, shall not be a criminal or civil offense under Washington state law. Every marijuana producer's license shall be issued in the name of the applicant, shall specify the location at which the marijuana producer intends to operate, which must be within the state of Washington, and the holder thereof shall not allow any other person to use the license. The application fee for a marijuana producer's license shall be two hundred fifty dollars. The annual fee for issuance and renewal of a marijuana producer's license shall be one thousand dollars. A separate license shall be required for each location at which a marijuana producer intends to produce marijuana. (2) There shall be a marijuana processor's license to process, package, and label useable marijuana and marijuana-infused products for sale at wholesale to marijuana retailers, regulated by the state liquor control board and subject to annual renewal. The processing, packaging, possession, delivery, distribution, and sale of marijuana, useable marijuana, and marijuana-infused products in accordance with the provisions of this act and the rules adopted to implement and enforce it, by a validly licensed marijuana processor, shall not be a PH.1 Page 66 of 246 Code Rev/AI:crs 10 I-2465.1/11 criminal or civil offense under Washington state law. Every marijuana processor's license shall be issued in the name of the applicant, shall specify the location at which the licensee intends to operate, which must be within the state of Washington, and the holder thereof shall not allow any other person to use the license. The application fee for a marijuana processor's license shall be two hundred fifty dollars. The annual fee for issuance and renewal of a marijuana processor's license shall be one thousand dollars. A separate license shall be required for each location at which a marijuana processor intends to process marijuana. (3) There shall be a marijuana retailer's license to sell useable marijuana and marijuana-infused products at retail in retail outlets, regulated by the state liquor control board and subject to annual renewal. The possession, delivery, distribution, and sale of useable marijuana and marijuana-infused products in accordance with the provisions of this act and the rules adopted to implement and enforce it, by a validly licensed marijuana retailer, shall not be a criminal or civil offense under Washington state law. Every marijuana retailer's license shall be issued in the name of the applicant, shall specify the location of the retail outlet the licensee intends to operate, which must be within the state of Washington, and the holder thereof shall not allow any other person to use the license. The application fee for a marijuana retailer's license shall be two hundred fifty dollars. The annual fee for issuance and renewal of a marijuana retailer's license shall be one thousand dollars. A separate license shall be required for each location at which a marijuana retailer intends to sell useable marijuana and marijuana- infused products. NEW SECTION. Sec. 5. Neither a licensed marijuana producer nor a licensed marijuana processor shall have a direct or indirect financial interest in a licensed marijuana retailer. NEW SECTION. Sec. 6. (1) For the purpose of considering any application for a license to produce, process, or sell marijuana, or PH.1 Page 67 of 246 Code Rev/AI:crs 11 I-2465.1/11 for the renewal of a license to produce, process, or sell marijuana, the state liquor control board may cause an inspection of the premises to be made, and may inquire into all matters in connection with the construction and operation of the premises. For the purpose of reviewing any application for a license and for considering the denial, suspension, revocation, or renewal or denial thereof, of any license, the state liquor control board may consider any prior criminal conduct of the applicant including an administrative violation history record with the state liquor control board and a criminal history record information check. The state liquor control board may submit the criminal history record information check to the Washington state patrol and to the identification division of the federal bureau of investigation in order that these agencies may search their records for prior arrests and convictions of the individual or individuals who filled out the forms. The state liquor control board shall require fingerprinting of any applicant whose criminal history record information check is submitted to the federal bureau of investigation. The provisions of RCW 9.95.240 and of chapter 9.96A RCW shall not apply to these cases. Subject to the provisions of this section, the state liquor control board may, in its discretion, grant or deny the renewal or license applied for. Denial may be based on, without limitation, the existence of chronic illegal activity documented in objections submitted pursuant to subsections (7)(c) and (9) of this section. Authority to approve an uncontested or unopposed license may be granted by the state liquor control board to any staff member the board designates in writing. Conditions for granting this authority shall be adopted by rule. No license of any kind may be issued to: (a) A person under the age of twenty-one years; (b) A person doing business as a sole proprietor who has not lawfully resided in the state for at least three months prior to applying to receive a license; (c) A partnership, employee cooperative, association, nonprofit corporation, or corporation unless formed under the laws of this PH.1 Page 68 of 246 Code Rev/AI:crs 12 I-2465.1/11 state, and unless all of the members thereof are qualified to obtain a license as provided in this section; or (d) A person whose place of business is conducted by a manager or agent, unless the manager or agent possesses the same qualifications required of the licensee. (2)(a) The state liquor control board may, in its discretion, subject to the provisions of section 7 of this act, suspend or cancel any license; and all protections of the licensee from criminal or civil sanctions under state law for producing, processing, or selling marijuana, useable marijuana, or marijuana-infused products thereunder shall be suspended or terminated, as the case may be. (b) The state liquor control board shall immediately suspend the license of a person who has been certified pursuant to RCW 74.20A.320 by the department of social and health services as a person who is not in compliance with a support order. If the person has continued to meet all other requirements for reinstatement during the suspension, reissuance of the license shall be automatic upon the state liquor control board's receipt of a release issued by the department of social and health services stating that the licensee is in compliance with the order. (c) The state liquor control board may request the appointment of administrative law judges under chapter 34.12 RCW who shall have power to administer oaths, issue subpoenas for the attendance of witnesses and the production of papers, books, accounts, documents, and testimony, examine witnesses, and to receive testimony in any inquiry, investigation, hearing, or proceeding in any part of the state, under rules and regulations the state liquor control board may adopt. (d) Witnesses shall be allowed fees and mileage each way to and from any inquiry, investigation, hearing, or proceeding at the rate authorized by RCW 34.05.446. Fees need not be paid in advance of appearance of witnesses to testify or to produce books, records, or other legal evidence. (e) In case of disobedience of any person to comply with the order of the state liquor control board or a subpoena issued by the state liquor control board, or any of its members, or administrative law PH.1 Page 69 of 246 Code Rev/AI:crs 13 I-2465.1/11 judges, or on the refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, the judge of the superior court of the county in which the person resides, on application of any member of the board or administrative law judge, shall compel obedience by contempt proceedings, as in the case of disobedience of the requirements of a subpoena issued from said court or a refusal to testify therein. (3) Upon receipt of notice of the suspension or cancellation of a license, the licensee shall forthwith deliver up the license to the state liquor control board. Where the license has been suspended only, the state liquor control board shall return the license to the licensee at the expiration or termination of the period of suspension. The state liquor control board shall notify all other licensees in the county where the subject licensee has its premises of the suspension or cancellation of the license; and no other licensee or employee of another licensee may allow or cause any marijuana, useable marijuana, or marijuana-infused products to be delivered to or for any person at the premises of the subject licensee. (4) Every license issued under this act shall be subject to all conditions and restrictions imposed by this act or by rules adopted by the state liquor control board to implement and enforce this act. All conditions and restrictions imposed by the state liquor control board in the issuance of an individual license shall be listed on the face of the individual license along with the trade name, address, and expiration date. (5) Every licensee shall post and keep posted its license, or licenses, in a conspicuous place on the premises. (6) No licensee shall employ any person under the age of twenty- one years. (7)(a) Before the state liquor control board issues a new or renewed license to an applicant it shall give notice of the application to the chief executive officer of the incorporated city or town, if the application is for a license within an incorporated city or town, or to the county legislative authority, if the application is for a license outside the boundaries of incorporated cities or towns. PH.1 Page 70 of 246 Code Rev/AI:crs 14 I-2465.1/11 (b) The incorporated city or town through the official or employee selected by it, or the county legislative authority or the official or employee selected by it, shall have the right to file with the state liquor control board within twenty days after the date of transmittal of the notice for applications, or at least thirty days prior to the expiration date for renewals, written objections against the applicant or against the premises for which the new or renewed license is asked. The state liquor control board may extend the time period for submitting written objections. (c) The written objections shall include a statement of all facts upon which the objections are based, and in case written objections are filed, the city or town or county legislative authority may request, and the state liquor control board may in its discretion hold, a hearing subject to the applicable provisions of Title 34 RCW. If the state liquor control board makes an initial decision to deny a license or renewal based on the written objections of an incorporated city or town or county legislative authority, the applicant may request a hearing subject to the applicable provisions of Title 34 RCW. If a hearing is held at the request of the applicant, state liquor control board representatives shall present and defend the state liquor control board's initial decision to deny a license or renewal. (d) Upon the granting of a license under this title the state liquor control board shall send written notification to the chief executive officer of the incorporated city or town in which the license is granted, or to the county legislative authority if the license is granted outside the boundaries of incorporated cities or towns. (8) The state liquor control board shall not issue a license for any premises within one thousand feet of the perimeter of the grounds of any elementary or secondary school, playground, recreation center or facility, child care center, public park, public transit center, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older. PH.1 Page 71 of 246 Code Rev/AI:crs 15 I-2465.1/11 (9) In determining whether to grant or deny a license or renewal of any license, the state liquor control board shall give substantial weight to objections from an incorporated city or town or county legislative authority based upon chronic illegal activity associated with the applicant's operations of the premises proposed to be licensed or the applicant's operation of any other licensed premises, or the conduct of the applicant's patrons inside or outside the licensed premises. "Chronic illegal activity" means (a) a pervasive pattern of activity that threatens the public health, safety, and welfare of the city, town, or county including, but not limited to, open container violations, assaults, disturbances, disorderly conduct, or other criminal law violations, or as documented in crime statistics, police reports, emergency medical response data, calls for service, field data, or similar records of a law enforcement agency for the city, town, county, or any other municipal corporation or any state agency; or (b) an unreasonably high number of citations for violations of RCW 46.61.502 associated with the applicant's or licensee's operation of any licensed premises as indicated by the reported statements given to law enforcement upon arrest. NEW SECTION. Sec. 7. The action, order, or decision of the state liquor control board as to any denial of an application for the reissuance of a license to produce, process, or sell marijuana, or as to any revocation, suspension, or modification of any license to produce, process, or sell marijuana, shall be an adjudicative proceeding and subject to the applicable provisions of chapter 34.05 RCW. (1) An opportunity for a hearing may be provided to an applicant for the reissuance of a license prior to the disposition of the application, and if no opportunity for a prior hearing is provided then an opportunity for a hearing to reconsider the application must be provided the applicant. (2) An opportunity for a hearing must be provided to a licensee prior to a revocation or modification of any license and, except as PH.1 Page 72 of 246 Code Rev/AI:crs 16 I-2465.1/11 provided in subsection (4) of this section, prior to the suspension of any license. (3) No hearing shall be required until demanded by the applicant or licensee. (4) The state liquor control board may summarily suspend a license for a period of up to one hundred eighty days without a prior hearing if it finds that public health, safety, or welfare imperatively require emergency action, and it incorporates a finding to that effect in its order. Proceedings for revocation or other action must be promptly instituted and determined. An administrative law judge may extend the summary suspension period for up to one calendar year from the first day of the initial summary suspension in the event the proceedings for revocation or other action cannot be completed during the initial one hundred eighty-day period due to actions by the licensee. The state liquor control board's enforcement division shall complete a preliminary staff investigation of the violation before requesting an emergency suspension by the state liquor control board. NEW SECTION. Sec. 8. (1) If the state liquor control board approves, a license to produce, process, or sell marijuana may be transferred, without charge, to the surviving spouse or domestic partner of a deceased licensee if the license was issued in the names of one or both of the parties. For the purpose of considering the qualifications of the surviving party to receive a marijuana producer's, marijuana processor's, or marijuana retailer's license, the state liquor control board may require a criminal history record information check. The state liquor control board may submit the criminal history record information check to the Washington state patrol and to the identification division of the federal bureau of investigation in order that these agencies may search their records for prior arrests and convictions of the individual or individuals who filled out the forms. The state liquor control board shall require fingerprinting of any applicant whose criminal history record information check is submitted to the federal bureau of investigation. PH.1 Page 73 of 246 Code Rev/AI:crs 17 I-2465.1/11 (2) The proposed sale of more than ten percent of the outstanding or issued stock of a corporation licensed under this act, or any proposed change in the officers of such a corporation, must be reported to the state liquor control board, and state liquor control board approval must be obtained before the changes are made. A fee of seventy-five dollars will be charged for the processing of the change of stock ownership or corporate officers. NEW SECTION. Sec. 9. For the purpose of carrying into effect the provisions of this act according to their true intent or of supplying any deficiency therein, the state liquor control board may adopt rules not inconsistent with the spirit of this act as are deemed necessary or advisable. Without limiting the generality of the preceding sentence, the state liquor control board is empowered to adopt rules regarding the following: (1) The equipment and management of retail outlets and premises where marijuana is produced or processed, and inspection of the retail outlets and premises; (2) The books and records to be created and maintained by licensees, the reports to be made thereon to the state liquor control board, and inspection of the books and records; (3) Methods of producing, processing, and packaging marijuana, useable marijuana, and marijuana-infused products; conditions of sanitation; and standards of ingredients, quality, and identity of marijuana, useable marijuana, and marijuana-infused products produced, processed, packaged, or sold by licensees; (4) Security requirements for retail outlets and premises where marijuana is produced or processed, and safety protocols for licensees and their employees; (5) Screening, hiring, training, and supervising employees of licensees; (6) Retail outlet locations and hours of operation; (7) Labeling requirements and restrictions on advertisement of marijuana, useable marijuana, and marijuana-infused products; PH.1 Page 74 of 246 Code Rev/AI:crs 18 I-2465.1/11 (8) Forms to be used for purposes of this act or the rules adopted to implement and enforce it, the terms and conditions to be contained in licenses issued under this act, and the qualifications for receiving a license issued under this act, including a criminal history record information check. The state liquor control board may submit any criminal history record information check to the Washington state patrol and to the identification division of the federal bureau of investigation in order that these agencies may search their records for prior arrests and convictions of the individual or individuals who filled out the forms. The state liquor control board shall require fingerprinting of any applicant whose criminal history record information check is submitted to the federal bureau of investigation; (9) Application, reinstatement, and renewal fees for licenses issued under this act, and fees for anything done or permitted to be done under the rules adopted to implement and enforce this act; (10) The manner of giving and serving notices required by this act or rules adopted to implement or enforce it; (11) Times and periods when, and the manner, methods, and means by which, licensees shall transport and deliver marijuana, useable marijuana, and marijuana-infused products within the state; (12) Identification, seizure, confiscation, destruction, or donation to law enforcement for training purposes of all marijuana, useable marijuana, and marijuana-infused products produced, processed, sold, or offered for sale within this state which do not conform in all respects to the standards prescribed by this act or the rules adopted to implement and enforce it: PROVIDED, That nothing in this act shall be construed as authorizing the state liquor control board to seize, confiscate, destroy, or donate to law enforcement marijuana, useable marijuana, or marijuana-infused products produced, processed, sold, offered for sale, or possessed in compliance with the Washington state medical use of cannabis act, chapter 69.51A RCW. NEW SECTION. Sec. 10. The state liquor control board, subject to the provisions of this act, must adopt rules by December 1, 2013, that PH.1 Page 75 of 246 Code Rev/AI:crs 19 I-2465.1/11 establish the procedures and criteria necessary to implement the following: (1) Licensing of marijuana producers, marijuana processors, and marijuana retailers, including prescribing forms and establishing application, reinstatement, and renewal fees; (2) Determining, in consultation with the office of financial management, the maximum number of retail outlets that may be licensed in each county, taking into consideration: (a) Population distribution; (b) Security and safety issues; and (c) The provision of adequate access to licensed sources of useable marijuana and marijuana-infused products to discourage purchases from the illegal market; (3) Determining the maximum quantity of marijuana a marijuana producer may have on the premises of a licensed location at any time without violating Washington state law; (4) Determining the maximum quantities of marijuana, useable marijuana, and marijuana-infused products a marijuana processor may have on the premises of a licensed location at any time without violating Washington state law; (5) Determining the maximum quantities of useable marijuana and marijuana-infused products a marijuana retailer may have on the premises of a retail outlet at any time without violating Washington state law; (6) In making the determinations required by subsections (3) through (5) of this section, the state liquor control board shall take into consideration: (a) Security and safety issues; (b) The provision of adequate access to licensed sources of marijuana, useable marijuana, and marijuana-infused products to discourage purchases from the illegal market; and (c) Economies of scale, and their impact on licensees' ability to both comply with regulatory requirements and undercut illegal market prices; PH.1 Page 76 of 246 Code Rev/AI:crs 20 I-2465.1/11 (7) Determining the nature, form, and capacity of all containers to be used by licensees to contain marijuana, useable marijuana, and marijuana-infused products, and their labeling requirements, to include but not be limited to: (a) The business or trade name and Washington state unified business identifier number of the licensees that grew, processed, and sold the marijuana, useable marijuana, or marijuana-infused product; (b) Lot numbers of the marijuana, useable marijuana, or marijuana- infused product; (c) THC concentration of the marijuana, useable marijuana, or marijuana-infused product; (d) Medically and scientifically accurate information about the health and safety risks posed by marijuana use; and (e) Language required by RCW 69.04.480; (8) In consultation with the department of agriculture, establishing classes of marijuana, useable marijuana, and marijuana- infused products according to grade, condition, cannabinoid profile, THC concentration, or other qualitative measurements deemed appropriate by the state liquor control board; (9) Establishing reasonable time, place, and manner restrictions and requirements regarding advertising of marijuana, useable marijuana, and marijuana-infused products that are not inconsistent with the provisions of this act, taking into consideration: (a) Federal laws relating to marijuana that are applicable within Washington state; (b) Minimizing exposure of people under twenty-one years of age to the advertising; and (c) The inclusion of medically and scientifically accurate information about the health and safety risks posed by marijuana use in the advertising; (10) Specifying and regulating the time and periods when, and the manner, methods, and means by which, licensees shall transport and deliver marijuana, useable marijuana, and marijuana-infused products within the state; PH.1 Page 77 of 246 Code Rev/AI:crs 21 I-2465.1/11 (11) In consultation with the department and the department of agriculture, establishing accreditation requirements for testing laboratories used by licensees to demonstrate compliance with standards adopted by the state liquor control board, and prescribing methods of producing, processing, and packaging marijuana, useable marijuana, and marijuana-infused products; conditions of sanitation; and standards of ingredients, quality, and identity of marijuana, useable marijuana, and marijuana-infused products produced, processed, packaged, or sold by licensees; (12) Specifying procedures for identifying, seizing, confiscating, destroying, and donating to law enforcement for training purposes all marijuana, useable marijuana, and marijuana-infused products produced, processed, packaged, labeled, or offered for sale in this state that do not conform in all respects to the standards prescribed by this act or the rules of the state liquor control board. NEW SECTION. Sec. 11. (1) On a schedule determined by the state liquor control board, every licensed marijuana producer and processor must submit representative samples of marijuana, useable marijuana, or marijuana-infused products produced or processed by the licensee to an independent, third-party testing laboratory meeting the accreditation requirements established by the state liquor control board, for inspection and testing to certify compliance with standards adopted by the state liquor control board. Any sample remaining after testing shall be destroyed by the laboratory or returned to the licensee. (2) Licensees must submit the results of this inspection and testing to the state liquor control board on a form developed by the state liquor control board. (3) If a representative sample inspected and tested under this section does not meet the applicable standards adopted by the state liquor control board, the entire lot from which the sample was taken must be destroyed. NEW SECTION. Sec. 12. Except as provided by chapter 42.52 RCW, no member of the state liquor control board and no employee of the PH.1 Page 78 of 246 Code Rev/AI:crs 22 I-2465.1/11 state liquor control board shall have any interest, directly or indirectly, in the producing, processing, or sale of marijuana, useable marijuana, or marijuana-infused products, or derive any profit or remuneration from the sale of marijuana, useable marijuana, or marijuana-infused products other than the salary or wages payable to him or her in respect of his or her office or position, and shall receive no gratuity from any person in connection with the business. NEW SECTION. Sec. 13. There may be licensed, in no greater number in each of the counties of the state than as the state liquor control board shall deem advisable, retail outlets established for the purpose of making useable marijuana and marijuana-infused products available for sale to adults aged twenty-one and over. Retail sale of useable marijuana and marijuana-infused products in accordance with the provisions of this act and the rules adopted to implement and enforce it, by a validly licensed marijuana retailer or retail outlet employee, shall not be a criminal or civil offense under Washington state law. NEW SECTION. Sec. 14. (1) Retail outlets shall sell no products or services other than useable marijuana, marijuana-infused products, or paraphernalia intended for the storage or use of useable marijuana or marijuana-infused products. (2) Licensed marijuana retailers shall not employ persons under twenty-one years of age or allow persons under twenty-one years of age to enter or remain on the premises of a retail outlet. (3) Licensed marijuana retailers shall not display any signage in a window, on a door, or on the outside of the premises of a retail outlet that is visible to the general public from a public right-of- way, other than a single sign no larger than one thousand six hundred square inches identifying the retail outlet by the licensee's business or trade name. (4) Licensed marijuana retailers shall not display useable marijuana or marijuana-infused products in a manner that is visible to the general public from a public right-of-way. PH.1 Page 79 of 246 Code Rev/AI:crs 23 I-2465.1/11 (5) No licensed marijuana retailer or employee of a retail outlet shall open or consume, or allow to be opened or consumed, any useable marijuana or marijuana-infused product on the outlet premises. (6) The state liquor control board shall fine a licensee one thousand dollars for each violation of any subsection of this section. Fines collected under this section must be deposited into the dedicated marijuana fund created under section 26 of this act. NEW SECTION. Sec. 15. The following acts, when performed by a validly licensed marijuana retailer or employee of a validly licensed retail outlet in compliance with rules adopted by the state liquor control board to implement and enforce this act, shall not constitute criminal or civil offenses under Washington state law: (1) Purchase and receipt of useable marijuana or marijuana-infused products that have been properly packaged and labeled from a marijuana processor validly licensed under this act; (2) Possession of quantities of useable marijuana or marijuana- infused products that do not exceed the maximum amounts established by the state liquor control board under section 10(5) of this act; and (3) Delivery, distribution, and sale, on the premises of the retail outlet, of any combination of the following amounts of useable marijuana or marijuana-infused product to any person twenty-one years of age or older: (a) One ounce of useable marijuana; (b) Sixteen ounces of marijuana-infused product in solid form; or (c) Seventy-two ounces of marijuana-infused product in liquid form. NEW SECTION. Sec. 16. The following acts, when performed by a validly licensed marijuana processor or employee of a validly licensed marijuana processor in compliance with rules adopted by the state liquor control board to implement and enforce this act, shall not constitute criminal or civil offenses under Washington state law: PH.1 Page 80 of 246 Code Rev/AI:crs 24 I-2465.1/11 (1) Purchase and receipt of marijuana that has been properly packaged and labeled from a marijuana producer validly licensed under this act; (2) Possession, processing, packaging, and labeling of quantities of marijuana, useable marijuana, and marijuana-infused products that do not exceed the maximum amounts established by the state liquor control board under section 10(4) of this act; and (3) Delivery, distribution, and sale of useable marijuana or marijuana-infused products to a marijuana retailer validly licensed under this act. NEW SECTION. Sec. 17. The following acts, when performed by a validly licensed marijuana producer or employee of a validly licensed marijuana producer in compliance with rules adopted by the state liquor control board to implement and enforce this act, shall not constitute criminal or civil offenses under Washington state law: (1) Production or possession of quantities of marijuana that do not exceed the maximum amounts established by the state liquor control board under section 10(3) of this act; and (2) Delivery, distribution, and sale of marijuana to a marijuana processor or another marijuana producer validly licensed under this act. NEW SECTION. Sec. 18. (1) No licensed marijuana producer, processor, or retailer shall place or maintain, or cause to be placed or maintained, an advertisement of marijuana, useable marijuana, or a marijuana-infused product in any form or through any medium whatsoever: (a) Within one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, or library, or any game arcade admission to which is not restricted to persons aged twenty-one years or older; (b) On or in a public transit vehicle or public transit shelter; or (c) On or in a publicly owned or operated property. PH.1 Page 81 of 246 Code Rev/AI:crs 25 I-2465.1/11 (2) Merchandising within a retail outlet is not advertising for the purposes of this section. (3) This section does not apply to a noncommercial message. (4) The state liquor control board shall fine a licensee one thousand dollars for each violation of subsection (1) of this section. Fines collected under this subsection must be deposited into the dedicated marijuana fund created under section 26 of this act. Sec. 19. RCW 69.50.401 and 2005 c 218 s 1 are each amended to read as follows: (1) Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. (2) Any person who violates this section with respect to: (a) A controlled substance classified in Schedule I or II which is a narcotic drug or flunitrazepam, including its salts, isomers, and salts of isomers, classified in Schedule IV, is guilty of a class B felony and upon conviction may be imprisoned for not more than ten years, or (i) fined not more than twenty-five thousand dollars if the crime involved less than two kilograms of the drug, or both such imprisonment and fine; or (ii) if the crime involved two or more kilograms of the drug, then fined not more than one hundred thousand dollars for the first two kilograms and not more than fifty dollars for each gram in excess of two kilograms, or both such imprisonment and fine; (b) Amphetamine, including its salts, isomers, and salts of isomers, or methamphetamine, including its salts, isomers, and salts of isomers, is guilty of a class B felony and upon conviction may be imprisoned for not more than ten years, or (i) fined not more than twenty-five thousand dollars if the crime involved less than two kilograms of the drug, or both such imprisonment and fine; or (ii) if the crime involved two or more kilograms of the drug, then fined not more than one hundred thousand dollars for the first two kilograms and not more than fifty dollars for each gram in excess of two kilograms, or both such imprisonment and fine. Three thousand dollars of the PH.1 Page 82 of 246 Code Rev/AI:crs 26 I-2465.1/11 fine may not be suspended. As collected, the first three thousand dollars of the fine must be deposited with the law enforcement agency having responsibility for cleanup of laboratories, sites, or substances used in the manufacture of the methamphetamine, including its salts, isomers, and salts of isomers. The fine moneys deposited with that law enforcement agency must be used for such clean-up cost; (c) Any other controlled substance classified in Schedule I, II, or III, is guilty of a class C felony punishable according to chapter 9A.20 RCW; (d) A substance classified in Schedule IV, except flunitrazepam, including its salts, isomers, and salts of isomers, is guilty of a class C felony punishable according to chapter 9A.20 RCW; or (e) A substance classified in Schedule V, is guilty of a class C felony punishable according to chapter 9A.20 RCW. (3) The production, manufacture, processing, packaging, delivery, distribution, sale, or possession of marijuana in compliance with the terms set forth in section 15, 16, or 17 of this act shall not constitute a violation of this section, this chapter, or any other provision of Washington state law. Sec. 20. RCW 69.50.4013 and 2003 c 53 s 334 are each amended to read as follows: (1) It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. (2) Except as provided in RCW 69.50.4014, any person who violates this section is guilty of a class C felony punishable under chapter 9A.20 RCW. (3) The possession, by a person twenty-one years of age or older, of useable marijuana or marijuana-infused products in amounts that do not exceed those set forth in section 15(3) of this act is not a violation of this section, this chapter, or any other provision of Washington state law. PH.1 Page 83 of 246 Code Rev/AI:crs 27 I-2465.1/11 NEW SECTION. Sec. 21. It is unlawful to open a package containing marijuana, useable marijuana, or a marijuana-infused product, or consume marijuana, useable marijuana, or a marijuana- infused product, in view of the general public. A person who violates this section is guilty of a class 3 civil infraction under chapter 7.80 RCW. Sec. 22. RCW 69.50.412 and 2002 c 213 s 1 are each amended to read as follows: (1) It is unlawful for any person to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance other than marijuana. Any person who violates this subsection is guilty of a misdemeanor. (2) It is unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance other than marijuana. Any person who violates this subsection is guilty of a misdemeanor. (3) Any person eighteen years of age or over who violates subsection (2) of this section by delivering drug paraphernalia to a person under eighteen years of age who is at least three years his junior is guilty of a gross misdemeanor. (4) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia. Any person who violates this subsection is guilty of a misdemeanor. PH.1 Page 84 of 246 Code Rev/AI:crs 28 I-2465.1/11 (5) It is lawful for any person over the age of eighteen to possess sterile hypodermic syringes and needles for the purpose of reducing bloodborne diseases. Sec. 23. RCW 69.50.4121 and 2002 c 213 s 2 are each amended to read as follows: (1) Every person who sells or gives, or permits to be sold or given to any person any drug paraphernalia in any form commits a class I civil infraction under chapter 7.80 RCW. For purposes of this subsection, "drug paraphernalia" means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance other than marijuana. Drug paraphernalia includes, but is not limited to objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing ((marihuana,)) cocaine((, hashish, or hashish oil)) into the human body, such as: (a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls; (b) Water pipes; (c) Carburetion tubes and devices; (d) Smoking and carburetion masks; (e) ((Roach clips: Meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; (f))) Miniature cocaine spoons and cocaine vials; (((g))) (f) Chamber pipes; (((h))) (g) Carburetor pipes; (((i))) (h) Electric pipes; (((j))) (i) Air-driven pipes; PH.1 Page 85 of 246 Code Rev/AI:crs 29 I-2465.1/11 (((k) Chillums; (l) Bongs;)) and (((m))) (j) Ice pipes or chillers. (2) It shall be no defense to a prosecution for a violation of this section that the person acted, or was believed by the defendant to act, as agent or representative of another. (3) Nothing in subsection (1) of this section prohibits legal distribution of injection syringe equipment through public health and community based HIV prevention programs, and pharmacies. Sec. 24. RCW 69.50.500 and 1989 1st ex.s. c 9 s 437 are each amended to read as follows: (a) It is hereby made the duty of the state board of pharmacy, the department, the state liquor control board, and their officers, agents, inspectors and representatives, and all law enforcement officers within the state, and of all prosecuting attorneys, to enforce all provisions of this chapter, except those specifically delegated, and to cooperate with all agencies charged with the enforcement of the laws of the United States, of this state, and all other states, relating to controlled substances as defined in this chapter. (b) Employees of the department of health, who are so designated by the board as enforcement officers are declared to be peace officers and shall be vested with police powers to enforce the drug laws of this state, including this chapter. Sec. 25. RCW 69.50.505 and 2009 c 479 s 46 and 2009 c 364 s 1 are each reenacted and amended to read as follows: (1) The following are subject to seizure and forfeiture and no property right exists in them: (a) All controlled substances which have been manufactured, distributed, dispensed, acquired, or possessed in violation of this chapter or chapter 69.41 or 69.52 RCW, and all hazardous chemicals, as defined in RCW 64.44.010, used or intended to be used in the manufacture of controlled substances; PH.1 Page 86 of 246 Code Rev/AI:crs 30 I-2465.1/11 (b) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this chapter or chapter 69.41 or 69.52 RCW; (c) All property which is used, or intended for use, as a container for property described in (a) or (b) of this subsection; (d) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, in any manner to facilitate the sale, delivery, or receipt of property described in (a) or (b) of this subsection, except that: (i) No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter or chapter 69.41 or 69.52 RCW; (ii) No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; (iii) No conveyance is subject to forfeiture under this section if used in the receipt of only an amount of marijuana for which possession constitutes a misdemeanor under RCW 69.50.4014; (iv) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission; and (v) When the owner of a conveyance has been arrested under this chapter or chapter 69.41 or 69.52 RCW the conveyance in which the person is arrested may not be subject to forfeiture unless it is seized or process is issued for its seizure within ten days of the owner's arrest; (e) All books, records, and research products and materials, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this chapter or chapter 69.41 or 69.52 RCW; PH.1 Page 87 of 246 Code Rev/AI:crs 31 I-2465.1/11 (f) All drug paraphernalia21 other than paraphernalia possessed, sold, or used solely to facilitate marijuana-related activities that are not violations of this chapter; (g) All moneys, negotiable instruments, securities, or other tangible or intangible property of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this chapter or chapter 69.41 or 69.52 RCW, all tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter or chapter 69.41 or 69.52 RCW. A forfeiture of money, negotiable instruments, securities, or other tangible or intangible property encumbered by a bona fide security interest is subject to the interest of the secured party if, at the time the security interest was created, the secured party neither had knowledge of nor consented to the act or omission. No personal property may be forfeited under this subsection (1)(g), to the extent of the interest of an owner, by reason of any act or omission which that owner establishes was committed or omitted without the owner's knowledge or consent; and (h) All real property, including any right, title, and interest in the whole of any lot or tract of land, and any appurtenances or improvements which are being used with the knowledge of the owner for the manufacturing, compounding, processing, delivery, importing, or exporting of any controlled substance, or which have been acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW, if such activity is not less than a class C felony and a substantial nexus exists between the commercial production or sale of the controlled substance and the real property. However: (i) No property may be forfeited pursuant to this subsection (1)(h), to the extent of the interest of an owner, by reason of any act or omission committed or omitted without the owner's knowledge or consent; PH.1 Page 88 of 246 Code Rev/AI:crs 32 I-2465.1/11 (ii) The bona fide gift of a controlled substance, legend drug, or imitation controlled substance shall not result in the forfeiture of real property; (iii) The possession of marijuana shall not result in the forfeiture of real property unless the marijuana is possessed for commercial purposes that are unlawful under Washington state law, the amount possessed is five or more plants or one pound or more of marijuana, and a substantial nexus exists between the possession of marijuana and the real property. In such a case, the intent of the offender shall be determined by the preponderance of the evidence, including the offender's prior criminal history, the amount of marijuana possessed by the offender, the sophistication of the activity or equipment used by the offender, whether the offender was licensed to produce, process, or sell marijuana, or was an employee of a licensed producer, processor, or retailer, and other evidence which demonstrates the offender's intent to engage in unlawful commercial activity; (iv) The unlawful sale of marijuana or a legend drug shall not result in the forfeiture of real property unless the sale was forty grams or more in the case of marijuana or one hundred dollars or more in the case of a legend drug, and a substantial nexus exists between the unlawful sale and the real property; and (v) A forfeiture of real property encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party, at the time the security interest was created, neither had knowledge of nor consented to the act or omission. (2) Real or personal property subject to forfeiture under this chapter may be seized by any board inspector or law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. Seizure of real property shall include the filing of a lis pendens by the seizing agency. Real property seized under this section shall not be transferred or otherwise conveyed until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later: PROVIDED, That real property seized under this section may be transferred or conveyed to PH.1 Page 89 of 246 Code Rev/AI:crs 33 I-2465.1/11 any person or entity who acquires title by foreclosure or deed in lieu of foreclosure of a security interest. Seizure of personal property without process may be made if: (a) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant; (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter; (c) A board inspector or law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or (d) The board inspector or law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter. (3) In the event of seizure pursuant to subsection (2) of this section, proceedings for forfeiture shall be deemed commenced by the seizure. The law enforcement agency under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property. Service of notice of seizure of real property shall be made according to the rules of civil procedure. However, the state may not obtain a default judgment with respect to real property against a party who is served by substituted service absent an affidavit stating that a good faith effort has been made to ascertain if the defaulted party is incarcerated within the state, and that there is no present basis to believe that the party is incarcerated within the state. Notice of seizure in the case of property subject to a security interest that has been perfected by filing a financing statement in accordance with chapter 62A.9A RCW, or a certificate of title, shall be made by service upon the secured party or the secured party's assignee at the address shown on the financing statement or the certificate of title. The notice of PH.1 Page 90 of 246 Code Rev/AI:crs 34 I-2465.1/11 seizure in other cases may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen day period following the seizure. (4) If no person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in subsection (1)(d), (g), or (h) of this section within forty-five days of the service of notice from the seizing agency in the case of personal property and ninety days in the case of real property, the item seized shall be deemed forfeited. The community property interest in real property of a person whose spouse or domestic partner committed a violation giving rise to seizure of the real property may not be forfeited if the person did not participate in the violation. (5) If any person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in subsection (1)(b), (c), (d), (e), (f), (g), or (h) of this section within forty-five days of the service of notice from the seizing agency in the case of personal property and ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The notice of claim may be served by any method authorized by law or court rule including, but not limited to, service by first-class mail. Service by mail shall be deemed complete upon mailing within the forty-five day period following service of the notice of seizure in the case of personal property and within the ninety-day period following service of the notice of seizure in the case of real property. The hearing shall be before the chief law enforcement officer of the seizing agency or the chief law enforcement officer's designee, except where the seizing agency is a state agency as defined in RCW 34.12.020(4), the hearing shall be before the chief law enforcement officer of the seizing agency or an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of PH.1 Page 91 of 246 Code Rev/AI:crs 35 I-2465.1/11 competent jurisdiction. Removal of any matter involving personal property may only be accomplished according to the rules of civil procedure. The person seeking removal of the matter must serve process against the state, county, political subdivision, or municipality that operates the seizing agency, and any other party of interest, in accordance with RCW 4.28.080 or 4.92.020, within forty- five days after the person seeking removal has notified the seizing law enforcement agency of the person's claim of ownership or right to possession. The court to which the matter is to be removed shall be the district court when the aggregate value of personal property is within the jurisdictional limit set forth in RCW 3.66.020. A hearing before the seizing agency and any appeal therefrom shall be under Title 34 RCW. In all cases, the burden of proof is upon the law enforcement agency to establish, by a preponderance of the evidence, that the property is subject to forfeiture. The seizing law enforcement agency shall promptly return the article or articles to the claimant upon a determination by the administrative law judge or court that the claimant is the present lawful owner or is lawfully entitled to possession thereof of items specified in subsection (1)(b), (c), (d), (e), (f), (g), or (h) of this section. (6) In any proceeding to forfeit property under this title, where the claimant substantially prevails, the claimant is entitled to reasonable attorneys' fees reasonably incurred by the claimant. In addition, in a court hearing between two or more claimants to the article or articles involved, the prevailing party is entitled to a judgment for costs and reasonable attorneys' fees. (7) When property is forfeited under this chapter the board or seizing law enforcement agency may: (a) Retain it for official use or upon application by any law enforcement agency of this state release such property to such agency for the exclusive use of enforcing the provisions of this chapter; (b) Sell that which is not required to be destroyed by law and which is not harmful to the public; PH.1 Page 92 of 246 Code Rev/AI:crs 36 I-2465.1/11 (c) Request the appropriate sheriff or director of public safety to take custody of the property and remove it for disposition in accordance with law; or (d) Forward it to the drug enforcement administration for disposition. (8)(a) When property is forfeited, the seizing agency shall keep a record indicating the identity of the prior owner, if known, a description of the property, the disposition of the property, the value of the property at the time of seizure, and the amount of proceeds realized from disposition of the property. (b) Each seizing agency shall retain records of forfeited property for at least seven years. (c) Each seizing agency shall file a report including a copy of the records of forfeited property with the state treasurer each calendar quarter. (d) The quarterly report need not include a record of forfeited property that is still being held for use as evidence during the investigation or prosecution of a case or during the appeal from a conviction. (9)(a) By January 31st of each year, each seizing agency shall remit to the state treasurer an amount equal to ten percent of the net proceeds of any property forfeited during the preceding calendar year. Money remitted shall be deposited in the state general fund. (b) The net proceeds of forfeited property is the value of the forfeitable interest in the property after deducting the cost of satisfying any bona fide security interest to which the property is subject at the time of seizure; and in the case of sold property, after deducting the cost of sale, including reasonable fees or commissions paid to independent selling agents, and the cost of any valid landlord's claim for damages under subsection (15) of this section. (c) The value of sold forfeited property is the sale price. The value of retained forfeited property is the fair market value of the property at the time of seizure, determined when possible by reference to an applicable commonly used index, such as the index used by the PH.1 Page 93 of 246 Code Rev/AI:crs 37 I-2465.1/11 department of licensing for valuation of motor vehicles. A seizing agency may use, but need not use, an independent qualified appraiser to determine the value of retained property. If an appraiser is used, the value of the property appraised is net of the cost of the appraisal. The value of destroyed property and retained firearms or illegal property is zero. (10) Forfeited property and net proceeds not required to be paid to the state treasurer shall be retained by the seizing law enforcement agency exclusively for the expansion and improvement of controlled substances related law enforcement activity. Money retained under this section may not be used to supplant preexisting funding sources. (11) Controlled substances listed in Schedule I, II, III, IV, and V that are possessed, transferred, sold, or offered for sale in violation of this chapter are contraband and shall be seized and summarily forfeited to the state. Controlled substances listed in Schedule I, II, III, IV, and V, which are seized or come into the possession of the board, the owners of which are unknown, are contraband and shall be summarily forfeited to the board. (12) Species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this chapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the board. (13) The failure, upon demand by a board inspector or law enforcement officer, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored to produce an appropriate registration or proof that he or she is the holder thereof constitutes authority for the seizure and forfeiture of the plants. (14) Upon the entry of an order of forfeiture of real property, the court shall forward a copy of the order to the assessor of the county in which the property is located. Orders for the forfeiture of real property shall be entered by the superior court, subject to court rules. Such an order shall be filed by the seizing agency in the PH.1 Page 94 of 246 Code Rev/AI:crs 38 I-2465.1/11 county auditor's records in the county in which the real property is located. (15)(a) A landlord may assert a claim against proceeds from the sale of assets seized and forfeited under subsection (7)(b) of this section, only if: (((a))) (i) A law enforcement officer, while acting in his or her official capacity, directly caused damage to the complaining landlord's property while executing a search of a tenant's residence; and (((b))) (ii) The landlord has applied any funds remaining in the tenant's deposit, to which the landlord has a right under chapter 59.18 RCW, to cover the damage directly caused by a law enforcement officer prior to asserting a claim under the provisions of this section; (((i))) (A) Only if the funds applied under (((b))) (a)(ii) of this subsection are insufficient to satisfy the damage directly caused by a law enforcement officer, may the landlord seek compensation for the damage by filing a claim against the governmental entity under whose authority the law enforcement agency operates within thirty days after the search; (((ii))) (B) Only if the governmental entity denies or fails to respond to the landlord's claim within sixty days of the date of filing, may the landlord collect damages under this subsection by filing within thirty days of denial or the expiration of the sixty-day period, whichever occurs first, a claim with the seizing law enforcement agency. The seizing law enforcement agency must notify the landlord of the status of the claim by the end of the thirty-day period. Nothing in this section requires the claim to be paid by the end of the sixty-day or thirty-day period. (((c))) (b) For any claim filed under (((b))) (a)(ii) of this subsection, the law enforcement agency shall pay the claim unless the agency provides substantial proof that the landlord either: (i) Knew or consented to actions of the tenant in violation of this chapter or chapter 69.41 or 69.52 RCW; or PH.1 Page 95 of 246 Code Rev/AI:crs 39 I-2465.1/11 (ii) Failed to respond to a notification of the illegal activity, provided by a law enforcement agency under RCW 59.18.075, within seven days of receipt of notification of the illegal activity. (16) The landlord's claim for damages under subsection (15) of this section may not include a claim for loss of business and is limited to: (a) Damage to tangible property and clean-up costs; (b) The lesser of the cost of repair or fair market value of the damage directly caused by a law enforcement officer; (c) The proceeds from the sale of the specific tenant's property seized and forfeited under subsection (7)(b) of this section; and (d) The proceeds available after the seizing law enforcement agency satisfies any bona fide security interest in the tenant's property and costs related to sale of the tenant's property as provided by subsection (9)(b) of this section. (17) Subsections (15) and (16) of this section do not limit any other rights a landlord may have against a tenant to collect for damages. However, if a law enforcement agency satisfies a landlord's claim under subsection (15) of this section, the rights the landlord has against the tenant for damages directly caused by a law enforcement officer under the terms of the landlord and tenant's contract are subrogated to the law enforcement agency. PART IV DEDICATED MARIJUANA FUND NEW SECTION. Sec. 26. (1) There shall be a fund, known as the dedicated marijuana fund, which shall consist of all marijuana excise taxes, license fees, penalties, forfeitures, and all other moneys, income, or revenue received by the state liquor control board from marijuana-related activities. The state treasurer shall be custodian of the fund. (2) All moneys received by the state liquor control board or any employee thereof from marijuana-related activities shall be deposited each day in a depository approved by the state treasurer and PH.1 Page 96 of 246 Code Rev/AI:crs 40 I-2465.1/11 transferred to the state treasurer to be credited to the dedicated marijuana fund. (3) Disbursements from the dedicated marijuana fund shall be on authorization of the state liquor control board or a duly authorized representative thereof. NEW SECTION. Sec. 27. (1) There is levied and collected a marijuana excise tax equal to twenty-five percent of the selling price on each wholesale sale in this state of marijuana by a licensed marijuana producer to a licensed marijuana processor or another licensed marijuana producer. This tax is the obligation of the licensed marijuana producer. (2) There is levied and collected a marijuana excise tax equal to twenty-five percent of the selling price on each wholesale sale in this state of useable marijuana or marijuana-infused product by a licensed marijuana processor to a licensed marijuana retailer. This tax is the obligation of the licensed marijuana processor. (3) There is levied and collected a marijuana excise tax equal to twenty-five percent of the selling price on each retail sale in this state of useable marijuana and marijuana-infused products. This tax is the obligation of the licensed marijuana retailer, is separate and in addition to general state and local sales and use taxes that apply to retail sales of tangible personal property, and is part of the total retail price to which general state and local sales and use taxes apply. (4) All revenues collected from the marijuana excise taxes imposed under subsections (1) through (3) of this section shall be deposited each day in a depository approved by the state treasurer and transferred to the state treasurer to be credited to the dedicated marijuana fund. (5) The state liquor control board shall regularly review the tax levels established under this section and make recommendations to the legislature as appropriate regarding adjustments that would further the goal of discouraging use while undercutting illegal market prices. PH.1 Page 97 of 246 Code Rev/AI:crs 41 I-2465.1/11 NEW SECTION. Sec. 28. All marijuana excise taxes collected from sales of marijuana, useable marijuana, and marijuana-infused products under section 27 of this act, and the license fees, penalties, and forfeitures derived under this act from marijuana producer, marijuana processor, and marijuana retailer licenses shall every three months be disbursed by the state liquor control board as follows: (1) One hundred twenty-five thousand dollars to the department of social and health services to design and administer the Washington state healthy youth survey, analyze the collected data, and produce reports, in collaboration with the office of the superintendent of public instruction, department of health, department of commerce, family policy council, and state liquor control board. The survey shall be conducted at least every two years and include questions regarding, but not necessarily limited to, academic achievement, age at time of substance use initiation, antisocial behavior of friends, attitudes toward antisocial behavior, attitudes toward substance use, laws and community norms regarding antisocial behavior, family conflict, family management, parental attitudes toward substance use, peer rewarding of antisocial behavior, perceived risk of substance use, and rebelliousness. Funds disbursed under this subsection may be used to expand administration of the healthy youth survey to student populations attending institutions of higher education in Washington; (2) Fifty thousand dollars to the department of social and health services for the purpose of contracting with the Washington state institute for public policy to conduct the cost-benefit evaluation and produce the reports described in section 30 of this act. This appropriation shall end after production of the final report required by section 30 of this act; (3) Five thousand dollars to the University of Washington alcohol and drug abuse institute for the creation, maintenance, and timely updating of web-based public education materials providing medically and scientifically accurate information about the health and safety risks posed by marijuana use; PH.1 Page 98 of 246 Code Rev/AI:crs 42 I-2465.1/11 (4) An amount not exceeding one million two hundred fifty thousand dollars to the state liquor control board as is necessary for administration of this act; (5) Of the funds remaining after the disbursements identified in subsections (1) through (4) of this section: (a) Fifteen percent to the department of social and health services division of behavioral health and recovery for implementation and maintenance of programs and practices aimed at the prevention or reduction of maladaptive substance use, substance-use disorder, substance abuse or substance dependence, as these terms are defined in the Diagnostic and Statistical Manual of Mental Disorders, among middle school and high school age students, whether as an explicit goal of a given program or practice or as a consistently corresponding effect of its implementation; PROVIDED, That: (i) Of the funds disbursed under (a) of this subsection, at least eighty-five percent must be directed to evidence-based and cost- beneficial programs and practices that produce objectively measurable results; and (ii) Up to fifteen percent of the funds disbursed under (a) of this subsection may be directed to research-based and emerging best practices or promising practices. In deciding which programs and practices to fund, the secretary of the department of social and health services shall consult, at least annually, with the University of Washington's social development research group and the University of Washington's alcohol and drug abuse institute; (b) Ten percent to the department of health for the creation, implementation, operation, and management of a marijuana education and public health program that contains the following: (i) A marijuana use public health hotline that provides referrals to substance abuse treatment providers, utilizes evidence-based or research-based public health approaches to minimizing the harms associated with marijuana use, and does not solely advocate an abstinence-only approach; PH.1 Page 99 of 246 Code Rev/AI:crs 43 I-2465.1/11 (ii) A grants program for local health departments or other local community agencies that supports development and implementation of coordinated intervention strategies for the prevention and reduction of marijuana use by youth; and (iii) Media-based education campaigns across television, internet, radio, print, and out-of-home advertising, separately targeting youth and adults, that provide medically and scientifically accurate information about the health and safety risks posed by marijuana use; (c) Six-tenths of one percent to the University of Washington and four-tenths of one percent to Washington State University for research on the short and long-term effects of marijuana use, to include but not be limited to formal and informal methods for estimating and measuring intoxication and impairment, and for the dissemination of such research; (d) Fifty percent to the state basic health plan trust account to be administered by the Washington basic health plan administrator and used as provided under chapter 70.47 RCW; (e) Five percent to the Washington state health care authority to be expended exclusively through contracts with community health centers to provide primary health and dental care services, migrant health services, and maternity health care services as provided under RCW 41.05.220; (f) Three-tenths of one percent to the office of the superintendent of public instruction to fund grants to building bridges programs under chapter 28A.175 RCW; and (g) The remainder to the general fund. NEW SECTION. Sec. 29. The department of social and health services and the department of health shall, by December 1, 2013, adopt rules not inconsistent with the spirit of this act as are deemed necessary or advisable to carry into effect the provisions of section 28 of this act. NEW SECTION. Sec. 30. (1) The Washington state institute for public policy shall conduct cost-benefit evaluations of the PH.1 Page 100 of 246 Code Rev/AI:crs 44 I-2465.1/11 implementation of this act. A preliminary report, and recommendations to appropriate committees of the legislature, shall be made by September 1, 2015, and the first final report with recommendations by September 1, 2017. Subsequent reports shall be due September 1, 2022, and September 1, 2032. (2) The evaluation of the implementation of this act shall include, but not necessarily be limited to, consideration of the following factors: (a) Public health, to include but not be limited to: (i) Health costs associated with marijuana use; (ii) Health costs associated with criminal prohibition of marijuana, including lack of product safety or quality control regulations and the relegation of marijuana to the same illegal market as potentially more dangerous substances; and (iii) The impact of increased investment in the research, evaluation, education, prevention and intervention programs, practices, and campaigns identified in section 16 of this act on rates of marijuana-related maladaptive substance use and diagnosis of marijuana-related substance-use disorder, substance abuse, or substance dependence, as these terms are defined in the Diagnostic and Statistical Manual of Mental Disorders; (b) Public safety, to include but not be limited to: (i) Public safety issues relating to marijuana use; and (ii) Public safety issues relating to criminal prohibition of marijuana; (c) Youth and adult rates of the following: (i) Marijuana use; (ii) Maladaptive use of marijuana; and (iii) Diagnosis of marijuana-related substance-use disorder, substance abuse, or substance dependence, including primary, secondary, and tertiary choices of substance; (d) Economic impacts in the private and public sectors, including but not limited to: (i) Jobs creation; (ii) Workplace safety; PH.1 Page 101 of 246 Code Rev/AI:crs 45 I-2465.1/11 (iii) Revenues; and (iv) Taxes generated for state and local budgets; (e) Criminal justice impacts, to include but not be limited to: (i) Use of public resources like law enforcement officers and equipment, prosecuting attorneys and public defenders, judges and court staff, the Washington state patrol crime lab and identification and criminal history section, jails and prisons, and misdemeanant and felon supervision officers to enforce state criminal laws regarding marijuana; and (ii) Short and long-term consequences of involvement in the criminal justice system for persons accused of crimes relating to marijuana, their families, and their communities; and (f) State and local agency administrative costs and revenues. PART V DRIVING UNDER THE INFLUENCE OF MARIJUANA Sec. 31. RCW 46.20.308 and 2008 c 282 s 2 are each amended to read as follows: (1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration, THC concentration, or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503. Neither consent nor this section precludes a police officer from obtaining a search warrant for a person's breath or blood. (2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of PH.1 Page 102 of 246 Code Rev/AI:crs 46 I-2465.1/11 intoxicating liquor or any drug or the person to have been driving or in actual physical control of a motor vehicle while having alcohol or THC in a concentration in violation of RCW 46.61.503 in his or her system and being under the age of twenty-one. However, in those instances where the person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample or where the person is being treated in a hospital, clinic, doctor's office, emergency medical vehicle, ambulance, or other similar facility or where the officer has reasonable grounds to believe that the person is under the influence of a drug, a blood test shall be administered by a qualified person as provided in RCW 46.61.506(5). The officer shall inform the person of his or her right to refuse the breath or blood test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver, in substantially the following language, that: (a) If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year; and (b) If the driver refuses to take the test, the driver's refusal to take the test may be used in a criminal trial; and (c) If the driver submits to the test and the test is administered, the driver's license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if: (i) The driver is age twenty-one or over and the test indicates either that the alcohol concentration of the driver's breath or blood is 0.08 or more((,)) or that the THC concentration of the driver's blood is 5.00 or more; or ((if)) (ii) The driver is under age twenty-one and the test indicates either that the alcohol concentration of the driver's breath or blood is 0.02 or more((,)) or that the THC concentration of the driver's blood is above 0.00; or ((if)) (iii) The driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504; and PH.1 Page 103 of 246 Code Rev/AI:crs 47 I-2465.1/11 (d) If the driver's license, permit, or privilege to drive is suspended, revoked, or denied the driver may be eligible to immediately apply for an ignition interlock driver's license. (3) Except as provided in this section, the test administered shall be of the breath only. If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which there has been serious bodily injury to another person, a breath or blood test may be administered without the consent of the individual so arrested. (4) Any person who is dead, unconscious, or who is otherwise in a condition rendering him or her incapable of refusal, shall be deemed not to have withdrawn the consent provided by subsection (1) of this section and the test or tests may be administered, subject to the provisions of RCW 46.61.506, and the person shall be deemed to have received the warnings required under subsection (2) of this section. (5) If, following his or her arrest and receipt of warnings under subsection (2) of this section, the person arrested refuses upon the request of a law enforcement officer to submit to a test or tests of his or her breath or blood, no test shall be given except as authorized under subsection (3) or (4) of this section. (6) If, after arrest and after the other applicable conditions and requirements of this section have been satisfied, a test or tests of the person's blood or breath is administered and the test results indicate that the alcohol concentration of the person's breath or blood is 0.08 or more, or the THC concentration of the person's blood is 5.00 or more, if the person is age twenty-one or over, or that the alcohol concentration of the person's breath or blood is 0.02 or more, or the THC concentration of the person's blood is above 0.00, if the person is under the age of twenty-one, or the person refuses to submit to a test, the arresting officer or other law enforcement officer at whose direction any test has been given, or the department, where PH.1 Page 104 of 246 Code Rev/AI:crs 48 I-2465.1/11 applicable, if the arrest results in a test of the person's blood, shall: (a) Serve notice in writing on the person on behalf of the department of its intention to suspend, revoke, or deny the person's license, permit, or privilege to drive as required by subsection (7) of this section; (b) Serve notice in writing on the person on behalf of the department of his or her right to a hearing, specifying the steps he or she must take to obtain a hearing as provided by subsection (8) of this section and that the person waives the right to a hearing if he or she receives an ignition interlock driver's license; (c) Mark the person's Washington state driver's license or permit to drive, if any, in a manner authorized by the department; (d) Serve notice in writing that the marked license or permit, if any, is a temporary license that is valid for sixty days from the date of arrest or from the date notice has been given in the event notice is given by the department following a blood test, or until the suspension, revocation, or denial of the person's license, permit, or privilege to drive is sustained at a hearing pursuant to subsection (8) of this section, whichever occurs first. No temporary license is valid to any greater degree than the license or permit that it replaces; and (e) Immediately notify the department of the arrest and transmit to the department within seventy-two hours, except as delayed as the result of a blood test, a sworn report or report under a declaration authorized by RCW 9A.72.085 that states: (i) That the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs, or both, or was under the age of twenty- one years and had been driving or was in actual physical control of a motor vehicle while having an alcohol or THC concentration in violation of RCW 46.61.503; (ii) That after receipt of the warnings required by subsection (2) of this section the person refused to submit to a test of his or her PH.1 Page 105 of 246 Code Rev/AI:crs 49 I-2465.1/11 blood or breath, or a test was administered and the results indicated that the alcohol concentration of the person's breath or blood was 0.08 or more, or the THC concentration of the person's blood was 5.00 or more, if the person is age twenty-one or over, or that the alcohol concentration of the person's breath or blood was 0.02 or more, or the THC concentration of the person's blood was above 0.00, if the person is under the age of twenty-one; and (iii) Any other information that the director may require by rule. (7) The department of licensing, upon the receipt of a sworn report or report under a declaration authorized by RCW 9A.72.085 under subsection (6)(e) of this section, shall suspend, revoke, or deny the person's license, permit, or privilege to drive or any nonresident operating privilege, as provided in RCW 46.20.3101, such suspension, revocation, or denial to be effective beginning sixty days from the date of arrest or from the date notice has been given in the event notice is given by the department following a blood test, or when sustained at a hearing pursuant to subsection (8) of this section, whichever occurs first. (8) A person receiving notification under subsection (6)(b) of this section may, within twenty days after the notice has been given, request in writing a formal hearing before the department. The person shall pay a fee of two hundred dollars as part of the request. If the request is mailed, it must be postmarked within twenty days after receipt of the notification. Upon timely receipt of such a request for a formal hearing, including receipt of the required two hundred dollar fee, the department shall afford the person an opportunity for a hearing. The department may waive the required two hundred dollar fee if the person is an indigent as defined in RCW 10.101.010. Except as otherwise provided in this section, the hearing is subject to and shall be scheduled and conducted in accordance with RCW 46.20.329 and 46.20.332. The hearing shall be conducted in the county of the arrest, except that all or part of the hearing may, at the discretion of the department, be conducted by telephone or other electronic means. The hearing shall be held within sixty days following the arrest or following the date notice has been given in the event notice PH.1 Page 106 of 246 Code Rev/AI:crs 50 I-2465.1/11 is given by the department following a blood test, unless otherwise agreed to by the department and the person, in which case the action by the department shall be stayed, and any valid temporary license marked under subsection (6)(c) of this section extended, if the person is otherwise eligible for licensing. For the purposes of this section, the scope of the hearing shall cover the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or any drug or had been driving or was in actual physical control of a motor vehicle within this state while having alcohol in his or her system in a concentration of 0.02 or more, or THC in his or her system in a concentration above 0.00, if the person was under the age of twenty-one, whether the person was placed under arrest, and (a) whether the person refused to submit to the test or tests upon request of the officer after having been informed that such refusal would result in the revocation of the person's license, permit, or privilege to drive, or (b) if a test or tests were administered, whether the applicable requirements of this section were satisfied before the administration of the test or tests, whether the person submitted to the test or tests, or whether a test was administered without express consent as permitted under this section, and whether the test or tests indicated that the alcohol concentration of the person's breath or blood was 0.08 or more, or the THC concentration of the person's blood was 5.00 or more, if the person was age twenty-one or over at the time of the arrest, or that the alcohol concentration of the person's breath or blood was 0.02 or more, or the THC concentration of the person's blood was above 0.00, if the person was under the age of twenty-one at the time of the arrest. The sworn report or report under a declaration authorized by RCW 9A.72.085 submitted by a law enforcement officer is prima facie evidence that the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs, or both, or the person had been driving or was in actual physical control of a motor PH.1 Page 107 of 246 Code Rev/AI:crs 51 I-2465.1/11 vehicle within this state while having alcohol in his or her system in a concentration of 0.02 or more, or THC in his or her system in a concentration above 0.00, and was under the age of twenty-one and that the officer complied with the requirements of this section. A hearing officer shall conduct the hearing, may issue subpoenas for the attendance of witnesses and the production of documents, and shall administer oaths to witnesses. The hearing officer shall not issue a subpoena for the attendance of a witness at the request of the person unless the request is accompanied by the fee required by RCW 5.56.010 for a witness in district court. The sworn report or report under a declaration authorized by RCW 9A.72.085 of the law enforcement officer and any other evidence accompanying the report shall be admissible without further evidentiary foundation and the certifications authorized by the criminal rules for courts of limited jurisdiction shall be admissible without further evidentiary foundation. The person may be represented by counsel, may question witnesses, may present evidence, and may testify. The department shall order that the suspension, revocation, or denial either be rescinded or sustained. (9) If the suspension, revocation, or denial is sustained after such a hearing, the person whose license, privilege, or permit is suspended, revoked, or denied has the right to file a petition in the superior court of the county of arrest to review the final order of revocation by the department in the same manner as an appeal from a decision of a court of limited jurisdiction. Notice of appeal must be filed within thirty days after the date the final order is served or the right to appeal is waived. Notwithstanding RCW 46.20.334, RALJ 1.1, or other statutes or rules referencing de novo review, the appeal shall be limited to a review of the record of the administrative hearing. The appellant must pay the costs associated with obtaining the record of the hearing before the hearing officer. The filing of the appeal does not stay the effective date of the suspension, revocation, or denial. A petition filed under this subsection must include the petitioner's grounds for requesting review. Upon granting petitioner's request for review, the court shall review the PH.1 Page 108 of 246 Code Rev/AI:crs 52 I-2465.1/11 department's final order of suspension, revocation, or denial as expeditiously as possible. The review must be limited to a determination of whether the department has committed any errors of law. The superior court shall accept those factual determinations supported by substantial evidence in the record: (a) That were expressly made by the department; or (b) that may reasonably be inferred from the final order of the department. The superior court may reverse, affirm, or modify the decision of the department or remand the case back to the department for further proceedings. The decision of the superior court must be in writing and filed in the clerk's office with the other papers in the case. The court shall state the reasons for the decision. If judicial relief is sought for a stay or other temporary remedy from the department's action, the court shall not grant such relief unless the court finds that the appellant is likely to prevail in the appeal and that without a stay the appellant will suffer irreparable injury. If the court stays the suspension, revocation, or denial it may impose conditions on such stay. (10)(a) If a person whose driver's license, permit, or privilege to drive has been or will be suspended, revoked, or denied under subsection (7) of this section, other than as a result of a breath or blood test refusal, and who has not committed an offense for which he or she was granted a deferred prosecution under chapter 10.05 RCW, petitions a court for a deferred prosecution on criminal charges arising out of the arrest for which action has been or will be taken under subsection (7) of this section, or notifies the department of licensing of the intent to seek such a deferred prosecution, then the license suspension or revocation shall be stayed pending entry of the deferred prosecution. The stay shall not be longer than one hundred fifty days after the date charges are filed, or two years after the date of the arrest, whichever time period is shorter. If the court stays the suspension, revocation, or denial, it may impose conditions on such stay. If the person is otherwise eligible for licensing, the department shall issue a temporary license, or extend any valid temporary license marked under subsection (6) of this section, for the PH.1 Page 109 of 246 Code Rev/AI:crs 53 I-2465.1/11 period of the stay. If a deferred prosecution treatment plan is not recommended in the report made under RCW 10.05.050, or if treatment is rejected by the court, or if the person declines to accept an offered treatment plan, or if the person violates any condition imposed by the court, then the court shall immediately direct the department to cancel the stay and any temporary marked license or extension of a temporary license issued under this subsection. (b) A suspension, revocation, or denial imposed under this section, other than as a result of a breath or blood test refusal, shall be stayed if the person is accepted for deferred prosecution as provided in chapter 10.05 RCW for the incident upon which the suspension, revocation, or denial is based. If the deferred prosecution is terminated, the stay shall be lifted and the suspension, revocation, or denial reinstated. If the deferred prosecution is completed, the stay shall be lifted and the suspension, revocation, or denial canceled. (c) The provisions of (b) of this subsection relating to a stay of a suspension, revocation, or denial and the cancellation of any suspension, revocation, or denial do not apply to the suspension, revocation, denial, or disqualification of a person's commercial driver's license or privilege to operate a commercial motor vehicle. (11) When it has been finally determined under the procedures of this section that a nonresident's privilege to operate a motor vehicle in this state has been suspended, revoked, or denied, the department shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he or she has a license. Sec. 32. RCW 46.20.3101 and 2004 c 95 s 4 and 2004 c 68 s 3 are each reenacted and amended to read as follows: Pursuant to RCW 46.20.308, the department shall suspend, revoke, or deny the arrested person's license, permit, or privilege to drive as follows: (1) In the case of a person who has refused a test or tests: PH.1 Page 110 of 246 Code Rev/AI:crs 54 I-2465.1/11 (a) For a first refusal within seven years, where there has not been a previous incident within seven years that resulted in administrative action under this section, revocation or denial for one year; (b) For a second or subsequent refusal within seven years, or for a first refusal where there has been one or more previous incidents within seven years that have resulted in administrative action under this section, revocation or denial for two years or until the person reaches age twenty-one, whichever is longer. (2) In the case of an incident where a person has submitted to or been administered a test or tests indicating that the alcohol concentration of the person's breath or blood was 0.08 or more, or that the THC concentration of the person's blood was 5.00 or more: (a) For a first incident within seven years, where there has not been a previous incident within seven years that resulted in administrative action under this section, suspension for ninety days; (b) For a second or subsequent incident within seven years, revocation or denial for two years. (3) In the case of an incident where a person under age twenty-one has submitted to or been administered a test or tests indicating that the alcohol concentration of the person's breath or blood was 0.02 or more, or that the THC concentration of the person's blood was above 0.00: (a) For a first incident within seven years, suspension or denial for ninety days; (b) For a second or subsequent incident within seven years, revocation or denial for one year or until the person reaches age twenty-one, whichever is longer. (4) The department shall grant credit on a day-for-day basis for any portion of a suspension, revocation, or denial already served under this section for a suspension, revocation, or denial imposed under RCW 46.61.5055 arising out of the same incident. Sec. 33. RCW 46.61.502 and 2011 c 293 s 2 are each amended to read as follows: PH.1 Page 111 of 246 Code Rev/AI:crs 55 I-2465.1/11 (1) A person is guilty of driving while under the influence of intoxicating liquor, marijuana, or any drug if the person drives a vehicle within this state: (a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or (b) The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or (c) While the person is under the influence of or affected by intoxicating liquor, marijuana, or any drug; or (((c))) (d) While the person is under the combined influence of or affected by intoxicating liquor, marijuana, and any drug. (2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state shall not constitute a defense against a charge of violating this section. (3)(a) It is an affirmative defense to a violation of subsection (1)(a) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (b) It is an affirmative defense to a violation of subsection (1)(b) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of marijuana after the time of driving and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant PH.1 Page 112 of 246 Code Rev/AI:crs 56 I-2465.1/11 notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (4)(a) Analyses of blood or breath samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(((b) or)) (c) or (d) of this section. (b) Analyses of blood samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by marijuana in violation of subsection (1)(c) or (d) of this section. (5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor. (6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if: (a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; or (b) The person has ever previously been convicted of: (i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a); (ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b); (iii) An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or (iv) A violation of this subsection (6) or RCW 46.61.504(6). Sec. 34. RCW 46.61.503 and 1998 c 213 s 4, 1998 c 207 s 5, and 1998 c 41 s 8 are each reenacted and amended to read as follows: PH.1 Page 113 of 246 Code Rev/AI:crs 57 I-2465.1/11 (1) Notwithstanding any other provision of this title, a person is guilty of driving or being in physical control of a motor vehicle after consuming alcohol or marijuana if the person operates or is in physical control of a motor vehicle within this state and the person: (a) Is under the age of twenty-one; and (b) Has, within two hours after operating or being in physical control of the motor vehicle, either: (i) An alcohol concentration of at least 0.02 but less than the concentration specified in RCW 46.61.502, as shown by analysis of the person's breath or blood made under RCW 46.61.506; or (ii) A THC concentration above 0.00 but less than the concentration specified in RCW 46.61.502, as shown by analysis of the person's blood made under RCW 46.61.506. (2) It is an affirmative defense to a violation of subsection (1) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant consumed a sufficient quantity of alcohol or marijuana after the time of driving or being in physical control and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol or THC concentration to be in violation of subsection (1) of this section within two hours after driving or being in physical control. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the earlier of: (a) Seven days prior to trial; or (b) the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (3) Analyses of blood or breath samples obtained more than two hours after the alleged driving or being in physical control may be used as evidence that within two hours of the alleged driving or being in physical control, a person had an alcohol or THC concentration in violation of subsection (1) of this section. (4) A violation of this section is a misdemeanor. Sec. 35. RCW 46.61.504 and 2011 c 293 s 3 are each amended to read as follows: PH.1 Page 114 of 246 Code Rev/AI:crs 58 I-2465.1/11 (1) A person is guilty of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug if the person has actual physical control of a vehicle within this state: (a) And the person has, within two hours after being in actual physical control of the vehicle, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or (b) The person has, within two hours after being in actual physical control of a vehicle, a THC concentration of 5.00 or higher as shown by analysis of the person's blood made under RCW 46.61.506; or (c) While the person is under the influence of or affected by intoxicating liquor or any drug; or (((c))) (d) While the person is under the combined influence of or affected by intoxicating liquor and any drug. (2) The fact that a person charged with a violation of this section is or has been entitled to use a drug under the laws of this state does not constitute a defense against any charge of violating this section. No person may be convicted under this section if, prior to being pursued by a law enforcement officer, the person has moved the vehicle safely off the roadway. (3)(a) It is an affirmative defense to a violation of subsection (1)(a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's breath or blood to cause the defendant's alcohol concentration to be 0.08 or more within two hours after being in such control. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (b) It is an affirmative defense to a violation of subsection (1)(b) of this section, which the defendant must prove by a preponderance of PH.1 Page 115 of 246 Code Rev/AI:crs 59 I-2465.1/11 the evidence, that the defendant consumed a sufficient quantity of marijuana after the time of being in actual physical control of the vehicle and before the administration of an analysis of the person's blood to cause the defendant's THC concentration to be 5.00 or more within two hours after being in control of the vehicle. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant's intent to assert the affirmative defense. (4)(a) Analyses of blood or breath samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in such control, a person had an alcohol concentration of 0.08 or more in violation of subsection (1)(a) of this section, and in any case in which the analysis shows an alcohol concentration above 0.00 may be used as evidence that a person was under the influence of or affected by intoxicating liquor or any drug in violation of subsection (1)(((b) or)) (c) or (d) of this section. (b) Analyses of blood samples obtained more than two hours after the alleged being in actual physical control of a vehicle may be used as evidence that within two hours of the alleged being in control of the vehicle, a person had a THC concentration of 5.00 or more in violation of subsection (1)(b) of this section, and in any case in which the analysis shows a THC concentration above 0.00 may be used as evidence that a person was under the influence of or affected by marijuana in violation of subsection (1)(c) or (d) of this section. (5) Except as provided in subsection (6) of this section, a violation of this section is a gross misdemeanor. (6) It is a class C felony punishable under chapter 9.94A RCW, or chapter 13.40 RCW if the person is a juvenile, if: (a) The person has four or more prior offenses within ten years as defined in RCW 46.61.5055; or (b) The person has ever previously been convicted of: (i) Vehicular homicide while under the influence of intoxicating liquor or any drug, RCW 46.61.520(1)(a); PH.1 Page 116 of 246 Code Rev/AI:crs 60 I-2465.1/11 (ii) Vehicular assault while under the influence of intoxicating liquor or any drug, RCW 46.61.522(1)(b); (iii) An out-of-state offense comparable to the offense specified in (b)(i) or (ii) of this subsection; or (iv) A violation of this subsection (6) or RCW 46.61.502(6). Sec. 36. RCW 46.61.50571 and 2000 c 52 s 1 are each amended to read as follows: (1) A defendant who is charged with an offense involving driving while under the influence as defined in RCW 46.61.502, driving under age twenty-one after consuming alcohol or marijuana as defined in RCW 46.61.503, or being in physical control of a vehicle while under the influence as defined in RCW 46.61.504, shall be required to appear in person before a judicial officer within one judicial day after the arrest if the defendant is served with a citation or complaint at the time of the arrest. A court may by local court rule waive the requirement for appearance within one judicial day if it provides for the appearance at the earliest practicable day following arrest and establishes the method for identifying that day in the rule. (2) A defendant who is charged with an offense involving driving while under the influence as defined in RCW 46.61.502, driving under age twenty-one after consuming alcohol or marijuana as defined in RCW 46.61.503, or being in physical control of a vehicle while under the influence as defined in RCW 46.61.504, and who is not served with a citation or complaint at the time of the incident, shall appear in court for arraignment in person as soon as practicable, but in no event later than fourteen days after the next day on which court is in session following the issuance of the citation or the filing of the complaint or information. (3) At the time of an appearance required by this section, the court shall determine the necessity of imposing conditions of pretrial release according to the procedures established by court rule for a preliminary appearance or an arraignment. (4) Appearances required by this section are mandatory and may not be waived. PH.1 Page 117 of 246 Code Rev/AI:crs 61 I-2465.1/11 Sec. 37. RCW 46.61.506 and 2010 c 53 s 1 are each amended to read as follows: (1) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or any drug, if the person's alcohol concentration is less than 0.08 or the person's THC concentration is less than 5.00, it is evidence that may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor or any drug. (2)(a) The breath analysis of the person's alcohol concentration shall be based upon grams of alcohol per two hundred ten liters of breath. (b) The blood analysis of the person's THC concentration shall be based upon nanograms per milliliter of whole blood. (c) The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of intoxicating liquor or any drug. (3) Analysis of the person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. (4)(a) A breath test performed by any instrument approved by the state toxicologist shall be admissible at trial or in an administrative proceeding if the prosecution or department produces prima facie evidence of the following: (i) The person who performed the test was authorized to perform such test by the state toxicologist; PH.1 Page 118 of 246 Code Rev/AI:crs 62 I-2465.1/11 (ii) The person being tested did not vomit or have anything to eat, drink, or smoke for at least fifteen minutes prior to administration of the test; (iii) The person being tested did not have any foreign substances, not to include dental work, fixed or removable, in his or her mouth at the beginning of the fifteen-minute observation period; (iv) Prior to the start of the test, the temperature of any liquid simulator solution utilized as an external standard, as measured by a thermometer approved of by the state toxicologist was thirty-four degrees centigrade plus or minus 0.3 degrees centigrade; (v) The internal standard test resulted in the message "verified"; (vi) The two breath samples agree to within plus or minus ten percent of their mean to be determined by the method approved by the state toxicologist; (vii) The result of the test of the liquid simulator solution external standard or dry gas external standard result did lie between .072 to .088 inclusive; and (viii) All blank tests gave results of .000. (b) For purposes of this section, "prima facie evidence" is evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved. In assessing whether there is sufficient evidence of the foundational facts, the court or administrative tribunal is to assume the truth of the prosecution's or department's evidence and all reasonable inferences from it in a light most favorable to the prosecution or department. (c) Nothing in this section shall be deemed to prevent the subject of the test from challenging the reliability or accuracy of the test, the reliability or functioning of the instrument, or any maintenance procedures. Such challenges, however, shall not preclude the admissibility of the test once the prosecution or department has made a prima facie showing of the requirements contained in (a) of this subsection. Instead, such challenges may be considered by the trier of fact in determining what weight to give to the test result. (5) When a blood test is administered under the provisions of RCW 46.20.308, the withdrawal of blood for the purpose of determining its PH.1 Page 119 of 246 Code Rev/AI:crs 63 I-2465.1/11 alcoholic or drug content may be performed only by a physician, a registered nurse, a licensed practical nurse, a nursing assistant as defined in chapter 18.88A RCW, a physician assistant as defined in chapter 18.71A RCW, a first responder as defined in chapter 18.73 RCW, an emergency medical technician as defined in chapter 18.73 RCW, a health care assistant as defined in chapter 18.135 RCW, or any technician trained in withdrawing blood. This limitation shall not apply to the taking of breath specimens. (6) The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer. The test will be admissible if the person establishes the general acceptability of the testing technique or method. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer. (7) Upon the request of the person who shall submit to a test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or her or his or her attorney. PART VI CONSTRUCTION NEW SECTION. Sec. 38. Sections 4 through 18 of this act are each added to chapter 69.50 RCW under the subchapter heading "article III - - regulation of manufacture, distribution, and dispensing of controlled substances." NEW SECTION. Sec. 39. Section 21 of this act is added to chapter 69.50 RCW under the subchapter heading "article IV -- offenses and penalties." PH.1 Page 120 of 246 Code Rev/AI:crs 64 I-2465.1/11 NEW SECTION. Sec. 40. Sections 26 through 30 of this act are each added to chapter 69.50 RCW under the subchapter heading "article V -- enforcement and administrative provisions." NEW SECTION. Sec. 41. The code reviser shall prepare a bill for introduction at the next legislative session that corrects references to the sections affected by this act. PH.1 Page 121 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 1 Chapter 69.51A RCW MEDICAL CANNABIS (Formerly Medical marijuana) RCW Sections 69.51A.005 Purpose and intent. 69.51A.010 Definitions. 69.51A.020 Construction of chapter. 69.51A.025 Construction of chapter -- Compliance with RCW 69.51A.040. 69.51A.030 Acts not constituting crimes or unprofessional conduct -- Health care professionals not subject to penalties or liabilities. 69.51A.040 Compliance with chapter -- Qualifying patients and designated providers not subject to penalties -- Law enforcement not subject to liability. 69.51A.043 Failure to register -- Affirmative defense. 69.51A.045 Possession of cannabis exceeding lawful amount -- Affirmative defense. 69.51A.047 Failure to register or present valid documentation -- Affirmative defense. 69.51A.050 Medical marijuana, lawful possession -- State not liable. 69.51A.055 Limitations of chapter -- Persons under supervision. 69.51A.060 Crimes -- Limitations of chapter. 69.51A.070 Addition of medical conditions. 69.51A.085 Collective gardens. 69.51A.090 Applicability of valid documentation definition. 69.51A.100 Qualifying patient's designation of provider -- Provider's service as designated provider -- Termination. 69.51A.110 Suitability for organ transplant. 69.51A.120 Parental rights or residential time -- Not to be restricted. 69.51A.130 State and municipalities -- Not subject to liability. 69.51A.140 Counties, cities, towns -- Authority to adopt and enforce requirements. 69.51A.200 Evaluation. 69.51A.900 Short title -- 1999 c 2. 69.51A.901 Severability -- 1999 c 2. 69.51A.902 Captions not law -- 1999 c 2. 69.51A.903 Severability -- 2011 c 181. 69.51A.005 Purpose and intent. (1) The legislature finds that: (a) There is medical evidence that some patients with terminal or debilitating medical conditions may, under their health care professional's care, benefit from the medical use of cannabis. Some of the conditions for which cannabis appears to be beneficial include, but are not limited to: (i) Nausea, vomiting, and cachexia associated with cancer, HIV-positive status, AIDS, hepatitis C, anorexia, and their treatments; (ii) Severe muscle spasms associated with multiple sclerosis, epilepsy, and other seizure and spasticity disorders; (iii) Acute or chronic glaucoma; (iv) Crohn's disease; and (v) Some forms of intractable pain. PH.1 Page 122 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 2 (b) Humanitarian compassion necessitates that the decision to use cannabis by patients with terminal or debilitating medical conditions is a personal, individual decision, based upon their health care professional's professional medical judgment and discretion. (2) Therefore, the legislature intends that: (a) Qualifying patients with terminal or debilitating medical conditions who, in the judgment of their health care professionals, may benefit from the medical use of cannabis, shall not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences under state law based solely on their medical use of cannabis, notwithstanding any other provision of law; (b) Persons who act as designated providers to such patients shall also not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences under state law, notwithstanding any other provision of law, based solely on their assisting with the medical use of cannabis; and (c) Health care professionals shall also not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences under state law for the proper authorization of medical use of cannabis by qualifying patients for whom, in the health care professional's professional judgment, the medical use of cannabis may prove beneficial. (3) Nothing in this chapter establishes the medical necessity or medical appropriateness of cannabis for treating terminal or debilitating medical conditions as defined in RCW 69.51A.010. (4) Nothing in this chapter diminishes the authority of correctional agencies and departments, including local governments or jails, to establish a procedure for determining when the use of cannabis would impact community safety or the effective supervision of those on active supervision for a criminal conviction, nor does it create the right to any accommodation of any medical use of cannabis in any correctional facility or jail. [2011 c 181 § 102; 2010 c 284 § 1; 2007 c 371 § 2; 1999 c 2 § 2 (Initiative Measure No. 692, approved November 3, 1998).] Notes: Intent -- 2007 c 371: "The legislature intends to clarify the law on medical marijuana so that the lawful use of this substance is not impaired and medical practitioners are able to exercise their best professional judgment in the delivery of medical treatment, qualifying patients may fully participate in the medical use of marijuana, and designated providers may assist patients in the manner provided by this act without fear of state criminal prosecution. This act is also intended to provide clarification to law enforcement and to all participants in the judicial system." [2007 c 371 § 1.] 69.51A.010 Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise. (1) "Designated provider" means a person who: (a) Is eighteen years of age or older; (b) Has been designated in writing by a patient to serve as a designated provider under this chapter; (c) Is prohibited from consuming marijuana obtained for the personal, medical use of the patient for whom the individual is acting as designated provider; and (d) Is the designated provider to only one patient at any one time. (2) "Health care professional," for purposes of this chapter only, means a physician licensed under chapter 18.71 RCW, a physician assistant licensed under chapter 18.71A RCW, an osteopathic physician licensed under chapter 18.57 RCW, an osteopathic physicians' assistant licensed under chapter 18.57A PH.1 Page 123 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 3 RCW, a naturopath licensed under chapter 18.36A RCW, or an advanced registered nurse practitioner licensed under chapter 18.79 RCW. (3) "Medical use of marijuana" means the production, possession, or administration of marijuana, as defined in *RCW 69.50.101(q), for the exclusive benefit of a qualifying patient in the treatment of his or her terminal or debilitating illness. (4) "Qualifying patient" means a person who: (a) Is a patient of a health care professional; (b) Has been diagnosed by that health care professional as having a terminal or debilitating medical condition; (c) Is a resident of the state of Washington at the time of such diagnosis; (d) Has been advised by that health care professional about the risks and benefits of the medical use of marijuana; and (e) Has been advised by that health care professional that they may benefit from the medical use of marijuana. (5) "Tamper-resistant paper" means paper that meets one or more of the following industry- recognized features: (a) One or more features designed to prevent copying of the paper; (b) One or more features designed to prevent the erasure or modification of information on the paper; or (c) One or more features designed to prevent the use of counterfeit valid documentation. (6) "Terminal or debilitating medical condition" means: (a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or (b) Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications; or (c) Glaucoma, either acute or chronic, limited for the purpose of this chapter to mean increased intraocular pressure unrelieved by standard treatments and medications; or (d) Crohn's disease with debilitating symptoms unrelieved by standard treatments or medications; or (e) Hepatitis C with debilitating nausea or intractable pain unrelieved by standard treatments or medications; or (f) Diseases, including anorexia, which result in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, or spasticity, when these symptoms are unrelieved by standard treatments or medications; or (g) Any other medical condition duly approved by the Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery as directed in this chapter. (7) "Valid documentation" means: (a) A statement signed and dated by a qualifying patient's health care professional written on tamper-resistant paper, which states that, in the health care professional's professional opinion, the patient may benefit from the medical use of marijuana; and (b) Proof of identity such as a Washington state driver's license or identicard, as defined in RCW 46.20.035. [2010 c 284 § 2; 2007 c 371 § 3; 1999 c 2 § 6 (Initiative Measure No. 692, approved November 3, 1998).] Notes: PH.1 Page 124 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 4 *Reviser's note: RCW 69.50.101 was amended by 2013 c 3 § 2, changing subsection (q) to subsection (s). Intent -- 2007 c 371: See note following RCW 69.51A.005. 69.51A.020 Construction of chapter. Nothing in this chapter shall be construed to supersede Washington state law prohibiting the acquisition, possession, manufacture, sale, or use of cannabis for nonmedical purposes. Criminal penalties created under chapter 181, Laws of 2011 do not preclude the prosecution or punishment for other crimes, including other crimes involving the manufacture or delivery of cannabis for nonmedical purposes. [2011 c 181 § 103; 1999 c 2 § 3 (Initiative Measure No. 692, approved November 3, 1998).] 69.51A.025 Construction of chapter — Compliance with RCW 69.51A.040. Nothing in this chapter or in the rules adopted to implement it precludes a qualifying patient or designated provider from engaging in the private, unlicensed, noncommercial production, possession, transportation, delivery, or administration of cannabis for medical use as authorized under RCW 69.51A.040. [2011 c 181 § 413.] 69.51A.030 Acts not constituting crimes or unprofessional conduct — Health care professionals not subject to penalties or liabilities. (1) The following acts do not constitute crimes under state law or unprofessional conduct under chapter 18.130 RCW, and a health care professional may not be arrested, searched, prosecuted, disciplined, or subject to other criminal sanctions or civil consequences or liability under state law, or have real or personal property searched, seized, or forfeited pursuant to state law, notwithstanding any other provision of law as long as the health care professional complies with subsection (2) of this section: (a) Advising a patient about the risks and benefits of medical use of cannabis or that the patient may benefit from the medical use of cannabis; or (b) Providing a patient meeting the criteria established under *RCW 69.51A.010(26) with valid documentation, based upon the health care professional's assessment of the patient's medical history and current medical condition, where such use is within a professional standard of care or in the individual health care professional's medical judgment. (2)(a) A health care professional may only provide a patient with valid documentation authorizing the medical use of cannabis or register the patient with the registry established in **section 901 of this act if he or she has a newly initiated or existing documented relationship with the patient, as a primary care provider or a specialist, relating to the diagnosis and ongoing treatment or monitoring of the patient's terminal or debilitating medical condition, and only after: (i) Completing a physical examination of the patient as appropriate, based on the patient's condition and age; (ii) Documenting the terminal or debilitating medical condition of the patient in the patient's medical record and that the patient may benefit from treatment of this condition or its symptoms with medical use of cannabis; (iii) Informing the patient of other options for treating the terminal or debilitating medical condition; and (iv) Documenting other measures attempted to treat the terminal or debilitating medical condition that do not involve the medical use of cannabis. (b) A health care professional shall not: PH.1 Page 125 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 5 (i) Accept, solicit, or offer any form of pecuniary remuneration from or to a licensed dispenser, licensed producer, or licensed processor of cannabis products; (ii) Offer a discount or any other thing of value to a qualifying patient who is a customer of, or agrees to be a customer of, a particular licensed dispenser, licensed producer, or licensed processor of cannabis products; (iii) Examine or offer to examine a patient for purposes of diagnosing a terminal or debilitating medical condition at a location where cannabis is produced, processed, or dispensed; (iv) Have a business or practice which consists solely of authorizing the medical use of cannabis; (v) Include any statement or reference, visual or otherwise, on the medical use of cannabis in any advertisement for his or her business or practice; or (vi) Hold an economic interest in an enterprise that produces, processes, or dispenses cannabis if the health care professional authorizes the medical use of cannabis. (3) A violation of any provision of subsection (2) of this section constitutes unprofessional conduct under chapter 18.130 RCW. [2011 c 181 § 301; 2010 c 284 § 3; 2007 c 371 § 4; 1999 c 2 § 4 (Initiative Measure No. 692, approved November 3, 1998).] Notes: Reviser's note: *(1) RCW 69.51A.010(26) is a reference to the definition of "qualifying patient" which was amended and renumbered by 2011 c 181 § 201, but the section was vetoed by the governor. **(2) The section creating a registry, 2011 c 181 § 901, was vetoed by the governor. Intent -- 2007 c 371: See note following RCW 69.51A.005. 69.51A.040 Compliance with chapter — Qualifying patients and designated providers not subject to penalties — Law enforcement not subject to liability. The medical use of cannabis in accordance with the terms and conditions of this chapter does not constitute a crime and a qualifying patient or designated provider in compliance with the terms and conditions of this chapter may not be arrested, prosecuted, or subject to other criminal sanctions or civil consequences, for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law, or have real or personal property seized or forfeited for possession, manufacture, or delivery of, or for possession with intent to manufacture or deliver, cannabis under state law, and investigating peace officers and law enforcement agencies may not be held civilly liable for failure to seize cannabis in this circumstance, if: (1)(a) The qualifying patient or designated provider possesses no more than fifteen cannabis plants and: (i) No more than twenty-four ounces of useable cannabis; (ii) No more cannabis product than what could reasonably be produced with no more than twenty-four ounces of useable cannabis; or (iii) A combination of useable cannabis and cannabis product that does not exceed a combined total representing possession and processing of no more than twenty-four ounces of useable cannabis. (b) If a person is both a qualifying patient and a designated provider for another qualifying patient, the person may possess no more than twice the amounts described in (a) of this subsection, whether the plants, useable cannabis, and cannabis product are possessed individually or in combination between the qualifying patient and his or her designated provider; PH.1 Page 126 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 6 (2) The qualifying patient or designated provider presents his or her proof of registration with the department of health, to any peace officer who questions the patient or provider regarding his or her medical use of cannabis; (3) The qualifying patient or designated provider keeps a copy of his or her proof of registration with the registry established in *section 901 of this act and the qualifying patient or designated provider's contact information posted prominently next to any cannabis plants, cannabis products, or useable cannabis located at his or her residence; (4) The investigating peace officer does not possess evidence that: (a) The designated provider has converted cannabis produced or obtained for the qualifying patient for his or her own personal use or benefit; or (b) The qualifying patient has converted cannabis produced or obtained for his or her own medical use to the qualifying patient's personal, nonmedical use or benefit; (5) The investigating peace officer does not possess evidence that the designated provider has served as a designated provider to more than one qualifying patient within a fifteen-day period; and (6) The investigating peace officer has not observed evidence of any of the circumstances identified in *section 901(4) of this act. [2011 c 181 § 401; 2007 c 371 § 5; 1999 c 2 § 5 (Initiative Measure No. 692, approved November 3, 1998).] Notes: *Reviser's note: Section 901 of this act was vetoed by the governor. Intent -- 2007 c 371: See note following RCW 69.51A.005. 69.51A.043 Failure to register — Affirmative defense. (1) A qualifying patient or designated provider who is not registered with the registry established in *section 901 of this act may raise the affirmative defense set forth in subsection (2) of this section, if: (a) The qualifying patient or designated provider presents his or her valid documentation to any peace officer who questions the patient or provider regarding his or her medical use of cannabis; (b) The qualifying patient or designated provider possesses no more cannabis than the limits set forth in RCW 69.51A.040(1); (c) The qualifying patient or designated provider is in compliance with all other terms and conditions of this chapter; (d) The investigating peace officer does not have probable cause to believe that the qualifying patient or designated provider has committed a felony, or is committing a misdemeanor in the officer's presence, that does not relate to the medical use of cannabis; (e) No outstanding warrant for arrest exists for the qualifying patient or designated provider; and (f) The investigating peace officer has not observed evidence of any of the circumstances identified in *section 901(4) of this act. (2) A qualifying patient or designated provider who is not registered with the registry established in *section 901 of this act, but who presents his or her valid documentation to any peace officer who questions the patient or provider regarding his or her medical use of cannabis, may assert an affirmative defense to charges of violations of state law relating to cannabis through proof at trial, by a preponderance of the evidence, that he or she otherwise meets the requirements of RCW 69.51A.040. A qualifying patient or designated provider meeting the conditions of this subsection but possessing more cannabis than the limits set forth in RCW 69.51A.040(1) may, in the investigating peace officer's PH.1 Page 127 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 7 discretion, be taken into custody and booked into jail in connection with the investigation of the incident. [2011 c 181 § 402.] Notes: *Reviser's note: Section 901 of this act was vetoed by the governor. 69.51A.045 Possession of cannabis exceeding lawful amount — Affirmative defense. A qualifying patient or designated provider in possession of cannabis plants, useable cannabis, or cannabis product exceeding the limits set forth in RCW 69.51A.040(1) but otherwise in compliance with all other terms and conditions of this chapter may establish an affirmative defense to charges of violations of state law relating to cannabis through proof at trial, by a preponderance of the evidence, that the qualifying patient's necessary medical use exceeds the amounts set forth in RCW 69.51A.040(1). An investigating peace officer may seize cannabis plants, useable cannabis, or cannabis product exceeding the amounts set forth in RCW 69.51A.040(1): PROVIDED, That in the case of cannabis plants, the qualifying patient or designated provider shall be allowed to select the plants that will remain at the location. The officer and his or her law enforcement agency may not be held civilly liable for failure to seize cannabis in this circumstance. [2011 c 181 § 405.] 69.51A.047 Failure to register or present valid documentation — Affirmative defense. A qualifying patient or designated provider who is not registered with the registry established in *section 901 of this act or does not present his or her valid documentation to a peace officer who questions the patient or provider regarding his or her medical use of cannabis but is in compliance with all other terms and conditions of this chapter may establish an affirmative defense to charges of violations of state law relating to cannabis through proof at trial, by a preponderance of the evidence, that he or she was a validly authorized qualifying patient or designated provider at the time of the officer's questioning. A qualifying patient or designated provider who establishes an affirmative defense under the terms of this section may also establish an affirmative defense under RCW 69.51A.045. [2011 c 181 § 406.] Notes: *Reviser's note: The section creating a registry, 2011 c 181 § 901, was vetoed by the governor. 69.51A.050 Medical marijuana, lawful possession — State not liable. (1) The lawful possession or manufacture of medical marijuana as authorized by this chapter shall not result in the forfeiture or seizure of any property. (2) No person shall be prosecuted for constructive possession, conspiracy, or any other criminal offense solely for being in the presence or vicinity of medical marijuana or its use as authorized by this chapter. (3) The state shall not be held liable for any deleterious outcomes from the medical use of marijuana by any qualifying patient. [1999 c 2 § 7 (Initiative Measure No. 692, approved November 3, 1998).] 69.51A.055 Limitations of chapter — Persons under supervision. (1)(a) The arrest and prosecution protections established in RCW 69.51A.040 may not be asserted in a supervision revocation or violation hearing by a person who is supervised by a corrections PH.1 Page 128 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 8 agency or department, including local governments or jails, that has determined that the terms of this section are inconsistent with and contrary to his or her supervision. (b) The affirmative defenses established in RCW 69.51A.043, 69.51A.045, 69.51A.047, and *section 407 of this act may not be asserted in a supervision revocation or violation hearing by a person who is supervised by a corrections agency or department, including local governments or jails, that has determined that the terms of this section are inconsistent with and contrary to his or her supervision. (2) The provisions of RCW 69.51A.040, 69.51A.085, and 69.51A.025 do not apply to a person who is supervised for a criminal conviction by a corrections agency or department, including local governments or jails, that has determined that the terms of this chapter are inconsistent with and contrary to his or her supervision. (3) A person may not be licensed as a licensed producer, licensed processor of cannabis products, or a licensed dispenser under *section 601, 602, or 701 of this act if he or she is supervised for a criminal conviction by a corrections agency or department, including local governments or jails, that has determined that licensure is inconsistent with and contrary to his or her supervision. [2011 c 181 § 1105.] Notes: *Reviser's note: Sections 407, 601, 602, and 701 were vetoed by the governor. 69.51A.060 Crimes — Limitations of chapter. (1) It shall be a class 3 civil infraction to use or display medical cannabis in a manner or place which is open to the view of the general public. (2) Nothing in this chapter establishes a right of care as a covered benefit or requires any state purchased health care as defined in RCW 41.05.011 or other health carrier or health plan as defined in Title 48 RCW to be liable for any claim for reimbursement for the medical use of cannabis. Such entities may enact coverage or noncoverage criteria or related policies for payment or nonpayment of medical cannabis in their sole discretion. (3) Nothing in this chapter requires any health care professional to authorize the medical use of cannabis for a patient. (4) Nothing in this chapter requires any accommodation of any on-site medical use of cannabis in any place of employment, in any school bus or on any school grounds, in any youth center, in any correctional facility, or smoking cannabis in any public place or hotel or motel. (5) Nothing in this chapter authorizes the use of medical cannabis by any person who is subject to the Washington code of military justice in chapter 38.38 RCW. (6) Employers may establish drug-free work policies. Nothing in this chapter requires an accommodation for the medical use of cannabis if an employer has a drug-free work place. (7) It is a class C felony to fraudulently produce any record purporting to be, or tamper with the content of any record for the purpose of having it accepted as, valid documentation under *RCW 69.51A.010(32)(a), or to backdate such documentation to a time earlier than its actual date of execution. (8) No person shall be entitled to claim the protection from arrest and prosecution under RCW 69.51A.040 or the affirmative defense under RCW 69.51A.043 for engaging in the medical use of cannabis in a way that endangers the health or well-being of any person through the use of a motorized vehicle on a street, road, or highway, including violations of RCW 46.61.502 or 46.61.504, or equivalent local ordinances. [2011 c 181 § 501; 2010 c 284 § 4; 2007 c 371 § 6; 1999 c 2 § 8 (Initiative Measure No. 692, approved November 3, 1998).] PH.1 Page 129 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 9 Notes: *Reviser's note: RCW 69.51A.010(32) is a reference to the definition of "valid documentation" which was amended and renumbered by 2011 c 181 § 201, but the section was vetoed by the governor. Intent -- 2007 c 371: See note following RCW 69.51A.005. 69.51A.070 Addition of medical conditions. The Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery, or other appropriate agency as designated by the governor, shall accept for consideration petitions submitted to add terminal or debilitating conditions to those included in this chapter. In considering such petitions, the Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery shall include public notice of, and an opportunity to comment in a public hearing upon, such petitions. The Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery shall, after hearing, approve or deny such petitions within one hundred eighty days of submission. The approval or denial of such a petition shall be considered a final agency action, subject to judicial review. [2007 c 371 § 7; 1999 c 2 § 9 (Initiative Measure No. 692, approved November 3, 1998).] Notes: Intent -- 2007 c 371: See note following RCW 69.51A.005. 69.51A.085 Collective gardens. (1) Qualifying patients may create and participate in collective gardens for the purpose of producing, processing, transporting, and delivering cannabis for medical use subject to the following conditions: (a) No more than ten qualifying patients may participate in a single collective garden at any time; (b) A collective garden may contain no more than fifteen plants per patient up to a total of forty- five plants; (c) A collective garden may contain no more than twenty-four ounces of useable cannabis per patient up to a total of seventy-two ounces of useable cannabis; (d) A copy of each qualifying patient's valid documentation or proof of registration with the registry established in *section 901 of this act, including a copy of the patient's proof of identity, must be available at all times on the premises of the collective garden; and (e) No useable cannabis from the collective garden is delivered to anyone other than one of the qualifying patients participating in the collective garden. (2) For purposes of this section, the creation of a "collective garden" means qualifying patients sharing responsibility for acquiring and supplying the resources required to produce and process cannabis for medical use such as, for example, a location for a collective garden; equipment, supplies, and labor necessary to plant, grow, and harvest cannabis; cannabis plants, seeds, and cuttings; and equipment, supplies, and labor necessary for proper construction, plumbing, wiring, and ventilation of a garden of cannabis plants. (3) A person who knowingly violates a provision of subsection (1) of this section is not entitled to the protections of this chapter. [2011 c 181 § 403.] Notes: PH.1 Page 130 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 10 *Reviser's note: The section creating a registry, 2011 c 181 § 901, was vetoed by the governor. 69.51A.090 Applicability of valid documentation definition. The provisions of RCW 69.51A.010, relating to the definition of "valid documentation," apply prospectively only, not retroactively, and do not affect valid documentation obtained prior to June 10, 2010. [2010 c 284 § 5.] 69.51A.100 Qualifying patient's designation of provider — Provider's service as designated provider — Termination. (1) A qualifying patient may revoke his or her designation of a specific provider and designate a different provider at any time. A revocation of designation must be in writing, signed and dated. The protections of this chapter cease to apply to a person who has served as a designated provider to a qualifying patient seventy-two hours after receipt of that patient's revocation of his or her designation. (2) A person may stop serving as a designated provider to a given qualifying patient at any time. However, that person may not begin serving as a designated provider to a different qualifying patient until fifteen days have elapsed from the date the last qualifying patient designated him or her to serve as a provider. [2011 c 181 § 404.] 69.51A.110 Suitability for organ transplant. A qualifying patient's medical use of cannabis as authorized by a health care professional may not be a sole disqualifying factor in determining the patient's suitability for an organ transplant, unless it is shown that this use poses a significant risk of rejection or organ failure. This section does not preclude a health care professional from requiring that a patient abstain from the medical use of cannabis, for a period of time determined by the health care professional, while waiting for a transplant organ or before the patient undergoes an organ transplant. [2011 c 181 § 408.] 69.51A.120 Parental rights or residential time — Not to be restricted. A qualifying patient or designated provider may not have his or her parental rights or residential time with a child restricted solely due to his or her medical use of cannabis in compliance with the terms of this chapter absent written findings supported by evidence that such use has resulted in a long-term impairment that interferes with the performance of parenting functions as defined under RCW 26.09.004. [2011 c 181 § 409.] 69.51A.130 State and municipalities — Not subject to liability. (1) No civil or criminal liability may be imposed by any court on the state or its officers and employees for actions taken in good faith under this chapter and within the scope of their assigned duties. (2) No civil or criminal liability may be imposed by any court on cities, towns, and counties or other municipalities and their officers and employees for actions taken in good faith under this chapter and within the scope of their assigned duties. [2011 c 181 § 1101.] 69.51A.140 Counties, cities, towns — Authority to adopt and enforce requirements. (1) Cities and towns may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction: Zoning requirements, business licensing requirements, health and safety requirements, and business taxes. Nothing in chapter 181, Laws of 2011 is intended to limit the authority of cities and towns to impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not PH.1 Page 131 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 11 preclude the possibility of siting licensed dispensers within the jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers. (2) Counties may adopt and enforce any of the following pertaining to the production, processing, or dispensing of cannabis or cannabis products within their jurisdiction in locations outside of the corporate limits of any city or town: Zoning requirements, business licensing requirements, and health and safety requirements. Nothing in chapter 181, Laws of 2011 is intended to limit the authority of counties to impose zoning requirements or other conditions upon licensed dispensers, so long as such requirements do not preclude the possibility of siting licensed dispensers within the jurisdiction. If the jurisdiction has no commercial zones, the jurisdiction is not required to adopt zoning to accommodate licensed dispensers. [2011 c 181 § 1102.] 69.51A.200 Evaluation. (1) By July 1, 2014, the Washington state institute for public policy shall, within available funds, conduct a cost-benefit evaluation of the implementation of chapter 181, Laws of 2011 and the rules adopted to carry out its purposes. (2) The evaluation of the implementation of chapter 181, Laws of 2011 and the rules adopted to carry out its purposes shall include, but not necessarily be limited to, consideration of the following factors: (a) Qualifying patients' access to an adequate source of cannabis for medical use; (b) Qualifying patients' access to a safe source of cannabis for medical use; (c) Qualifying patients' access to a consistent source of cannabis for medical use; (d) Qualifying patients' access to a secure source of cannabis for medical use; (e) Qualifying patients' and designated providers' contact with law enforcement and involvement in the criminal justice system; (f) Diversion of cannabis intended for medical use to nonmedical uses; (g) Incidents of home invasion burglaries, robberies, and other violent and property crimes associated with qualifying patients accessing cannabis for medical use; (h) Whether there are health care professionals who make a disproportionately high amount of authorizations in comparison to the health care professional community at large; (i) Whether there are indications of health care professionals in violation of RCW 69.51A.030; and (j) Whether the health care professionals making authorizations reside in this state or out of this state. (3) For purposes of facilitating this evaluation, the departments of health and agriculture will make available to the Washington state institute for public policy requested data, and any other data either department may consider relevant, from which all personally identifiable information has been redacted. [2011 c 181 § 1001.] 69.51A.900 Short title — 1999 c 2. This chapter may be known and cited as the Washington state medical use of cannabis act. [2011 c 181 § 1106; 1999 c 2 § 1 (Initiative Measure No. 692, approved November 3, 1998).] 69.51A.901 Severability — 1999 c 2. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. [1999 c 2 § 10 (Initiative Measure No. 692, approved November 3, 1998).] PH.1 Page 132 of 246 Chapter 69.51A - RCW MEDICAL CANNABIS(Formerly Medical marijuana) Page 12 69.51A.902 Captions not law — 1999 c 2. Captions used in this chapter are not any part of the law. [1999 c 2 § 11 (Initiative Measure No. 692, approved November 3, 1998).] 69.51A.903 Severability — 2011 c 181. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable. [2011 c 181 § 1103.] PH.1 Page 133 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: October 14, 2013 Minutes Date: October 15, 2013 Department: Police Attachments: DRAFT October 14, 2013 Minutes Budget Impact: $0 Administrative Recommendation: Background Summary: Reviewed by Council Committees: Municipal Services Councilmember:Peloza Staff: Meeting Date:October 21, 2013 Item Number:MS.1 AUBURN * MORE THAN YOU IMAGINEDMS.1 Page 134 of 246 Municipal Services Committee October 14, 2013 - 3:30 PM City Hall Conference Room 3 MINUTES I. CALL TO ORDER Chair Peloza called the meeting to order at 3:30 p.m. in Conference Room 3 of City Hall, 25 West Main Street, Auburn, WA. A. Roll Call Members present: Chair Bill Peloza, Vice Chair Wayne Osborne and Member John Partridge. Staff present: Mayor Pete Lewis, Chief of Police Bob Lee, Assistant Chief of Police Bill Pierson, Finance Director Shelley Coleman, Public Works Director Dennis Dowdy, Parks, Arts and Recreation Director Daryl Faber, Economic Development Planner Bill Thomas, Solid Waste and Recycling Supervisor Joan Nelson and Police Secretary/Scribe Terry Mendoza. Others present: None. B. Announcements C. Agenda Modifications At the request of Chair Peloza, an agenda modification was added to include public comment as a final discussion item. Jonathan Hunter, Albertson's Store Manager, requested time to discuss the shopping cart issue for his store located at 4010 A Street SE, Auburn. Mr. Hunter was a no show at the meeting; however, the Committee did discuss his request. Chair Peloza will contact Mr. Hunter and extend an invitation to the next Municipal Services Committee meeting on October 28, 2013. II. CONSENT AGENDA A. September 23, 2013 Minutes Vice Chair Osborne moved to accept the Minutes as presented. Member Partridge seconded. Chair Peloza concurred. MOTION PASSED: 3-0 III. ACTION A. Lea Hill Park - Project Acceptance (Faber) Page 1 of 4 MS.1 Page 135 of 246 Parks, Arts and Recreation Director Daryl Faber provided an update on the completion of the newly constructed 7 acre Lea Hill Park at Green River Community College. The park includes 5 acres of an active area with 2 acres of wetlands and an ancillary area. This was an agreement with GRCC where we accepted a pass through of $1.5 million from them. We are currently working on closing out the project. Additionally, we received a $60,000.00 grant from King County for a synthetic soccer field at the park. A small budget adjustment was completed along the way to assist with the sidewalk and right of way improvements and have already gone through City Council. This final pay estimate is for the construction closeout of the contract with Bargmann Construction. Director Faber also mentioned the dedication of the park will be held at 4:00 p.m. on Wednesday, October 30, 2013. Committee discussion followed. Vice Chair Osborne moved to forward the Lea Hill Park Project Acceptance to full Council for consideration. Member Partridge seconded. Chair Peloza concurred. MOTION PASSED: 3-0 IV. DISCUSSION ITEMS A. Resolution No. 4997 (Coleman) Finance Director Shelley Coleman briefed the committee on Resolution No. 4997. This is a Resolution of the City Council of the City of Auburn, Washington, authorizing the acceptance and appropriation of grant funds in the amount of one hundred and eight thousand and eight hundred and sixty-nine dollars ($108,869.00). The Washington State Department of Ecology has requested to enter into an Interlocal Agreement with the City for the 2013-2015 Coordinated Prevention Grant Program to promote waste reduction and recycling. The City will use the grant funds for community outreach on residential recycling and yard waste, as well as education outreach on recycling in the schools. The City will match the grant and, historically, we also receive a 2-year grant from King County for the program. As such, the anticipated King County grant funds are included in the City's budget and used to backfill the City's match portion. In 2014, the King County grant will switch to an annual grant. Councilmember Partridge inquired about whether or not there is a method used to track or measure the effectiveness of this program. Joan Nelson, Solid Waste and Recycling Supervisor, reported that information on the community outreach and progress of the program is required by the Department of Ecology at the end of the year. The City remains in compliance with the program and the outreach with our community and schools have proven to be successful. Vice Chair Osborne moved to forward Resolution No. 4997 to full Page 2 of 4 MS.1 Page 136 of 246 Council for consideration. Member Partridge seconded. Chair Peloza concurred. MOTION PASSED: 3-0 B. Animal Control and Rescue (Lee) Bill Pierson, Assistant Chief of Police, provided a review of the 3rd quarter report on Animal Control operations. The report shows that our continued efforts to provide community outreach and education to the Auburn citizens on animal control services has been quite effective. The number of calls for service (CFS) that were self- initiated increased and 911 dispatched CFS more than doubled. The 3rd quarter CFS totaled 411 and includes calls made directly to our animal control officer, wildlife-related calls, officer assist calls, and calls concerning deceased animals. The number of animals impounded, infractions and written warnings issued is on the rise. The committee requested a random sampling of the types of infractions (specifically those for licensing), written warnings and criminal citations issued for the 4th quarter report. Additionally, Chair Peloza suggested getting information out to the media spotlighting the success of animal control services. Mayor Lewis agreed and will work with his staff on the announcement. Committee discussion followed. C. Project Matrix The following change was made to the Project Matrix: Item 20P: Review date updated to 01/13/14. Airport Management Update: Finance Director Shelley Coleman provided an update on the Airport Management Contract and distributed a memo outlining the activity that has occurred to date along with items to consider with regard to this contract. In April 2013, the City issued a Request for Proposal (RFP) for Airport Management Services. Two proposals were received, one from Airport Management Group, LLC (AMG) and one from Aeroplex Partner's Group (AP). Some of the financial impacts to consider include the flight school being closed due to the March 2012 expiration of their lease and with that the decrease in fuel sales, as well. Additionally, the continuing debt payment on the GO bonds issued in 1999. Therefore the cost of the management contract is critical in the selection process and Finance has requested additional information from both firms. Director Coleman will brief the Airport Advisory Board at their meeting on Wednesday, October 16, and is hopeful about bringing the contract through the next round of Council Committee meetings. Committee discussion followed. Page 3 of 4 MS.1 Page 137 of 246 Citizen Letter of Concern: Councilmember Partridge presented a letter from City of Auburn volunteer and resident, Blondie Day. The letter is a request for assistance from the City's Community Service Work Crew for the older seniors needing help with the pickup of their yard waste in the Skylark Village I neighborhood. Mayor Lewis has had contact with Ms. Day and has had discussions with the Parks department about the possible utilization of local service clubs/groups. Mayor Lewis will follow-up with Ms. Day directly. Committee discussion followed. V. ADJOURNMENT The meeting was adjourned at 4:30 p.m. The next regular meeting of the Municipal Services Committee is scheduled for Monday, October 28, 2013 at 3:30 p.m. in Conference Room 3 of City Hall, 25 West Main Street, Auburn, WA. Signed this ________ day of November, 2013. _____________________ ________________________________ Bill Peloza, Chair Terry Mendoza, Police Secretary/Scribe Page 4 of 4 MS.1 Page 138 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: October 14, 2013 Minutes Date: October 16, 2013 Department: Planning and Development Attachments: October 14, 2013 Draft Minutes Budget Impact: $0 Administrative Recommendation: Background Summary: Reviewed by Council Committees: Councilmember:Backus Staff: Meeting Date:October 21, 2013 Item Number:PCD.1 AUBURN * MORE THAN YOU IMAGINEDPCD.1 Page 139 of 246 Planning and Community Development October 14, 2013 - 5:00 PM Annex Conference Room 2 MINUTES I. CALL TO ORDER Chair Nancy Backus called the meeting to order at 5:01 p.m. in Annex Conference Room 2 located on the second floor of One Main Professional Plaza, One East Main Street, Auburn, Washington. A. Roll Call Planning and Development Committee Chair Nancy Backus, Vice- Chair John Holman and Member Largo Wells were present. Also present were Planning and Development Director Nancy Welch, Planning Services Manager Elizabeth Chamberlain, Economic Development Manager Doug Lein, Administration and Business Services Manager Darcie Hanson; and Planning Secretary Tina Kriss. Members of the audience present: Councilmember Wayne Osborne. B. Announcements There were no announcements. C. Agenda Modifications There were no agenda modifications. II. CONSENT AGENDA A. Minutes - September 23, 2013 (Welch) Vice-Chair Holman moved and Member Wales seconded to approve the September 23, 2013 minutes as written. Motion carried unanimously. 3-0 III. ACTION There were no action items. IV. DISCUSSION ITEMS A. Business License 201 (Hanson) Administration and Business Services Manager Darcie Hanson provided an overview of the of the City's Business License program as Page 1 of 3 PCD.1 Page 140 of 246 a follow up from the September 23, 2013 meeting. The Committee and staff discussed outreach options to inform citizens that an active Solicitor's License is required for door-to-door solicitor business. Ms. Hanson stated one option for outreach she is looking into is an insert into the City Utility Bill to provide information. The Committee emphasized that the purpose of public outreach would be to enhance public safety. The Committee and staff discussed the options in obtaining active business license information from the State and how that data could be used by the City's Innovation and Technology Department to create an overlay of Auburn businesses. After a review of various aspects of the City's business license program, the Committee recommended staff meet with the Auburn Chamber of Commerce to increase public outreach for those new businesses needing to obtain a City Business License. The Committee also recommended staff coordinate with local banks to provide Business License Applications to include in any packets banks may provide to individuals seeking to start a new business in Auburn. B. Director's Report (Welch) Planning and Development Director Nancy Welch explained that the City has been working with the Army Corps of Engineers to negotiate a reduction in costs for the Mill Creek Wetland 5K Restoration Project. Negotiations have resulted in an increase in the credit the City would receive for City staff time and the real estate provided by the City. The construction costs are now being limited to approximately $6,000,000.00 based on a new approach to design based on a fixed budget, which is less than had been reported to the Committee in May. With the updated credit and fixed construction costs no additional funds will be needed, just the previously allocated funds. It also reduces the amount of grant funding needed to meet the City's requested match, by 60%. On August 9, 2013 the City had sent the Seattle District, Corps of Engineers, a letter requesting termination of the Design Agreement. At this time, staff would like to notify the Committee that a letter to rescind the Design Agreement Request to Terminate will be sent to the Corps, placing the project back on track. The City of Auburn has been selected by the American Planning Association (APA) as one of 10 pilot communities for the Page 2 of 3 PCD.1 Page 141 of 246 Comprehensive Plan Standards for Sustaining Places Project. City staff and the American Planning Association staff will hold regular conference calls to discuss the City's Comprehensive Plan and practices in meeting benchmarks of the Comprehensive Plan Best Practices Matrix. The City will be profiled on national APA website and at the 2014 APA National Conference in Atlanta, Georgia. Director Welch pointed out the use of the term "sustainability" here is used in a broad sense. She referred to goals on the National APA Comprehensive Plan Best Practices Definitions and Scoring Matrix that states the plan will assist to "provide the physical capacity for economic growth" and "plan for a balanced land-use mix for fiscal sustainability". C. PCDC Status Matrix (Welch) Committee and staff reviewed the updates to the matrix. The Committee did not request any changes. V. ADJOURNMENT There being no further business to come before the Planning and Community Development Committee, the meeting was adjourned at 5:40 p.m. DATED this ________________ day of __________________, 2013. ____________________________ Nancy Backus - Chair _____________________________ Tina Kriss - Planning Secretary Page 3 of 3 PCD.1 Page 142 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: October 7, 2013 Minutes Date: October 16, 2013 Department: Public Works Attachments: October 7, 2013 Draft Minutes Budget Impact: $0 Administrative Recommendation: Background Summary: Reviewed by Council Committees: Public Works Councilmember:Wagner Staff: Meeting Date:October 21, 2013 Item Number:PW.1 AUBURN * MORE THAN YOU IMAGINEDPW.1 Page 143 of 246 Public Works Committee October 7, 2013 - 3:30 PM Annex Conference Room 2 MINUTES I. CALL TO ORDER Chairman Rich Wagner called the meeting to order at 3:30 p.m. in Conference Room #2, located on the second floor of Auburn City Hall, One East Main Street, Auburn, Washington. A. Roll Call Chairman Wagner, Vice-Chair Bill Peloza, and Member Osborne were present. Also present during the meeting were: Mayor Pete B. Lewis, Planning and Community Development Committee Chairman Nancy Backus, Vice-Chair John Holman, Committee Member Largo Wales, Council Member John Partridge, Public Works Director Dennis Dowdy, City Engineer/Assistant Director Dennis Selle, Assistant City Engineer Ingrid Gaub, Utilities Engineer Dan Repp, Transportation Manager Pablo Para, Maintenance and Operations Manager Randy Bailey, Engineering Aide Amber Mund, Traffic Engineer James Webb, Street Systems Engineer Jai Carter, Storm Drainage Engineer Tim Carlaw, Senior Project Engineer Jacob Sweeting, Senior Project Engineer Ryan Vondrak, Project Engineer Robert Lee, Planning Manager Elizabeth Chamberlain, Principal Planner Jeff Dixon, Planning Director Nancy Welch, Finance Director Shelley Coleman, City Attorney Dan Heid, Government Relations Manager Carolyn Robertson, Economic Development Manager Doug Lien, and Public Works Secretary Jennifer Cusmir. Members of the public in attendance included: Yolanda Trout, Adam Knoll representing MultiCare, John Manavian and Tamara Thompson representing the Robertson Properties Group/Auburn Properties, LLC. B. Announcements 1. Joint Meeting Announcement A Joint Meeting of the Public Works and Planning and Community Development Committees is to begin at 4:00 p.m. and will end at the conclusion of Discussion Item A. A joint meeting of the Public Works Committee and Planning and Community Development Committees is to begin at approximately 4:00 p.m. and will end at the conclusion of Discussion Item A. Page 1 of 13 PW.1 Page 144 of 246 C. Agenda Modifications There were no agenda modifications. II. CONSENT AGENDA A. Approval of Minutes It was moved by Vice-Chair Peloza, seconded by Member Osborne, that the Committee approve the Public Works Committee Meeting minutes for date, November 16, 2013. Motion carried 3-0. B. Right-of-Way Use Permit No. 13-29 (Mund) Auburn Parks, Arts and Recreation Veterans Day Parade Member Osborne asked if construction on Park Avenue will be complete by the date of the parade. Mayor Lewis answered that Park Avenue will be open. It was moved by Vice-Chair Peloza, seconded by Member Osborne, that the Committee approve Right-of-Way Use Permit No. 13-29 for the Auburn Parks, Arts and Recreation Veterans’ Day Parade. Motion carried 3-0. C. Right-of-Way Use Permit No. 13-30 (Mund) Auburn Parks, Arts and Recreation Santa Parade There were no questions from the Committee. It was moved by Vice-Chair Peloza, seconded by Member Osborne, that the Committee approve Right-of-Way Use Permit No. 13-30 for the Auburn Parks, Arts and Recreation Santa Parade. Motion carried 3-0. D. Right-of-Way Use Permit No. 13-31 (Mund) Auburn Parks, Arts and Recreation Halloween Harvest Festival There were no questions from the Committee. It was moved by Vice-Chair Peloza, seconded by Member Osborne, that the Committee approve Right-of-Way Use Permit No. 13-31 for the Auburn Parks, Arts and Recreation Halloween Harvest Festival. Motion carried 3-0. E. Right-of-Way Use Permit No. 13-33 (Mund) MultiCare Health System - Installation of Two 4” Conduits Crossing Page 2 of 13 PW.1 Page 145 of 246 1st St NE Vice-Chair Peloza asked if the 5-year term for the permit was a standard length of time. Engineering Aide Mund answered that the longest term for which a Right-of-Way Use Permit may be issued is 5 years, unless the permit goes to the full City Council for approval. Engineering Aide Mund explained that the applicant is installing two 4” conduits and they are still working on their engineering and construction plans for completing the work, so staff does not have the exact project details at this time, in response to a question asked by Vice-Chair Peloza. It was moved by Vice-Chair Peloza, seconded by Member Osborne, that the Committee approve Right-of-Way Use Permit No. 13-33 for installation of Two 4” Conduits Crossing 1st St NE by MultiCare Health Systems. Motion carried 3-0. F. Annual On-Call Survey Agreement Amendment (Gaub) Annual On-Call Professional Service Agreement for Survey Services (AG-C-358) Chairman Wagner asked if the City completes any survey work or if survey work is all contracted out. Assistant City Engineer Gaub answered that City staff does the majority of surveying related work and the contract is used when City staff has more work to do than they are able to complete in-house. It was moved by Vice-Chair Peloza, seconded by Member Osborne, that the Committee recommend City Council an amendment to the Annual On-Call Professional Service Agreement for Survey Services (AG-C-358) for 2013. Motion carried 3-0. G. Public Works Project No. C524A (Lee) SCADA System Improvements Project Engineer Lee reported that there are currently 30 out of 36 sites converted over to the new SCADA system. Chairman Wagner asked if there are problems with the remaining 6 sites. Lee answered that there are no problems, they are just not yet converted. Vice-Chair Peloza asked why there were so many change orders for the project. Project Engineer Lee explained that the work is being completed under a technology service agreement and there have been issues and existing field conditions that were unknown in the beginning, or that have come up as the project has moved Page 3 of 13 PW.1 Page 146 of 246 forward. Those issues have been addressed but were not anticipated in the original scope of work. Many of the issues were various things that needed to be done in order to connect the City’s system to the SCADA system, such as utility equipment upgrades. Staff was also working on opportunities to maximize the use of current facilities. Chairman Wagner spoke about the possibility of reviewing the process of design/build projects and asked staff to try and provide the Committee with more information regarding the number of expected change orders for future design/build projects. Member Osborne asked about the affect of the change orders on the project budget. Project Engineer Lee stated that previous change orders, 1 through 16, each contained one item and change orders 17 and 18 include multiple changes. Lee explained that change order 17 is for modifications to an existing utility system in response to the SCADA updates, where the City is enhancing performance. Change order 18 adds sites that were not on the original project scope but were funded within the utility project budgets separate from the SCADA project. Member Osborne noted that in February 2011 the project’s estimated cost was $4.6M and the current estimated cost is $5.8M and asked for a break down of the costs of the items on the change orders. Project Engineer Lee stated that on change order 17, a magnetic flow meter, is being added at the Green River Pump Station, which is a site improvement that allows the City to measure the flow at the pump station. The second item includes three upgrades at three separate sites. Project Engineer Lee pointed out that the change orders address changes to the actual sites and not the SCADA system. Lee said that some of the upgrades to sites were anticipated by staff and others were not. Project Engineer Lee answered questions asked by Vice-Chair Peloza regarding upgrades to the facilities’ lock and security systems, which were included in the SCADA project. Utilities Engineer Repp explained that the funds for the change orders, number 17 and 18 in particular, are coming from existing projects that had SCADA monies already budgeted into the project costs. The funds budgeted for the individual utilities projects for SCADA upgrades are now being transferred to the SCADA Systems Update project as the preferred technical option to implement the needed improvements. Utilities Engineer Repp clarified that approximately a third of the increase of the project’s cost is being transferred from existing Page 4 of 13 PW.1 Page 147 of 246 projects, in response to a question asked by Chairman Wagner. Mayor Lewis stated that while constructing the SCADA system, staff realized there were other advantages to including other parts of the existing system to improve the entire system, which staff did not understand at the project’s start. Mayor Lewis stated that the current project contract has provided the freedom to modernize the system as the project is completed. Mayor Lewis requested staff present a review of all of the project accomplishments and lessons learned during completion of the project at a Committee meeting. Director Dowdy spoke about the value gained by the project. Director Dowdy recommended the Public Works Committee and staff visit the Maintenance and Operations offices to see the system’s new capabilities. It was moved by Vice-Chair Peloza, seconded by Member Osborne, that the Committee recommend City Council approve Change Order No. 17 in the amount of $107,595.07 to Contract No. AG-C 401 for Work on Project No. C524A, SCADA System Improvements. Motion carried 3-0. H. Public Works Project No. C524A (Lee) SCADA System Improvements It was moved by Vice-Chair Peloza, seconded by Member Osborne, that the Committee recommend City Council approve Change Order No. 18 in the Amount of $243,747.42 to Contract No. AG-C 401 for Work on Project No. C524A, SCADA System Improvements. Motion carried 3-0. III. DISCUSSION ITEMS A. Robertson Properties Group/Auburn Properties LLC Status Report - Starting at 4:00 p.m. (Dixon / Thompson / Manavian) Robertson Properties Group/Auburn Properties LLC Status Report on the Auburn Gateway Project to Members of the Public Works and Planning & Community Development Committees as Part of a Joint Meeting The joint meeting of the Public Works and Planning and Community Development Committees commenced at 4:13 p.m. John Manavian and Tamara Thompson, representing Robertson Properties Group/Auburn Properties LLC (RPG), were present to Page 5 of 13 PW.1 Page 148 of 246 provide a status update of the Auburn Gateway Project (redevelopment of the Valley 6 Drive-In). Mr. Manavian provided the Committee with a brief background summary of the project and spoke about RPG’s pre-leasing activities. Vice-Chair Peloza asked for more details regarding storm water management and critical area mitigation. Mr. Manavian, referencing the Exhibit B site plan, identified the portion of the site located in the flood plain and spoke about the process of removing the property from the flood plain. There is also a storm detention area near the NE portion of the site that, RPG’s engineers are working on and will become part of a stream relocation and bicycle/pedestrian trail area. Wetland areas have also been identified with associated buffers. Mr. Manavian noted that the project’s master plan is still being further refined. Mr. Manavian stated that RPG is very satisfied with the work that staff has done acquiring funds for the design and permitting of S 277th Street project and said that RPG has entered into a participation agreement for grants for the construction of the project, in response to a question asked by Chairman Wagner. Ms. Thompson stated that RPG has had an on-site meeting with the WA State Department of Fish and Wildlife to determine the classification of the different streams that are in and around the development site, in response to a question asked by Vice-Chair Peloza. Ms. Thompson said that RPG has been able to address the site according to how the streams will be classified. Mr. Manavian and Ms. Thompson spoke about relocation of one of the streams on the property. Mr. Manavian answered questions asked by Chairman Wagner regarding the flood plain mapping in the area. Mr. Manavian, the Committees and Mayor Lewis discussed the type of retail tenants that RPG is trying to bring to the area. Mr. Manavian described what type of housing may be included in the project, in response to a question asked by Chairman Wagner. He noted that since housing is required to be located above other uses, identification of the other uses must come first. Planning and Development Committee Chair Backus answering a question asked by Chairman Wagner stated that there are specific mixed-use design guidelines similar to those for the downtown area. Principle Planner Dixon confirmed that there are specific architectural and site design guidelines that apply for the project area. Page 6 of 13 PW.1 Page 149 of 246 The Committees and Mr. Manavian continued discussion of the type of retail tenants that may considering the project location, in response to a question asked by Planning and Community Development Committee Member Wales. Chairman Wagner asked if RGP is concerned with any of the airport flight plans. Mr. Manavian answered that flight plans and/or air traffic are not anticipated to be an issue. Chairman Wagner noted that the Airport Master Plan is in the process of being updated. Vice-Chair Peloza asked about the project schedule. Mr. Manavian responded that the project is approximately 2-3 years away in terms of any tenants and the brokers have told him that the timeline partially depends on improvement of the economy. Planning and Community Development Committee Chair Backus asked if there are any other factors that would influence a retailer’s decision to expand to the area. Mr. Manavian answered that the primary factors are the economy and demographics of the proximity of population density. Planning and Community Development Committee Vice-Chair Holman commented of the favorability of the demographic report provided by RPG as part of their pre-leasing market research. Mr. Manavian noted that the executed development agreement provides for twice annual status reporting to the city and requested that the next update be postponed until July 2014. The Committees granted the request. Planning and Community Development Committee Backus asked for three talking points for the project that City Councilmembers could share with citizens. Mr. Manavian responded that the emphases of the project is the fact that it is mixed-use project with a deliberate, well thought out master plan with a strong tenant mix. RGP is also working very hard to work through all of the very complicated infrastructure needs in the project area. The joint meeting concluded at 4:44 p.m. B. Ordinance No. 6482 (Chamberlain) An Ordinance of the City Council of the City of Auburn, Washington, Amending Sections 3.60.036, 3.94.040 and 3.94.060 of the City of Auburn Code Relating to Tax Exemptions Discussion Item B was discussed prior to Discussion Item A. Planning Manager Chamberlain provided the Committee with background information regarding Ordinance No. 6482. Page 7 of 13 PW.1 Page 150 of 246 Chamberlain explained that the City has received two requests to amend the City’s Multifamily Property Tax Exemption. The applicants are Landmark Development who is proposing a 5 story, 126 unit mixed-use housing project and Teutsch Partners LLC who is proposing a market rate project that could be either senior housing or apartments and the City has been working with on a purchase and sale agreement for the two southern blocks that the City owns within the Downtown Catalyst Area. Both development companies requested that the City review the minimum unit per unit investment that is included in the Multifamily Property Tax Exemption, which is currently $200,000.00 per unit. The Multifamily Property Tax Exemption has been in place since 2003, but no developer has taken advantage of the program since its adoption. The two developers have both requested a $130,000.00 per unit investment. Planning Manager Chamberlain stated that this investment will allow them to do a Seattle market type product even though the City of Auburn does not get Seattle market renting prices. Chamberlain reported that staff has review the Multifamily Property Tax Exemptions in other jurisdictions, Olympia, Kent, Seattle, and Federal Way, and none have a minimal investment. During discussion, the Planning and Community Development Department recommended not having a minimum investment for the City’s catalyst area. Planning Manager Chamberlain stated that the Planning and Community Development Committee was supportive of modifying the code language to not have a minimum investment value per unit for an entire market rate project but the project must have a minimum of 50 units. The Committee recommended that the minimum investment value per unit be $130,000.00 for a combination market rate/affordable housing project. Staff also proposes to amend when the application for the Multifamily Property Tax Exemption is required to be submitted and change the submittal prior to certificate of occupancy. Vice-Chair Peloza stated that his primary reason for supporting the proposed Ordinance is that the developers will maintain a high level of finish and amenity. The Public Works Committee decided to make the motion to move the Ordinance forward to City Council. It was moved by Vice-Chair Peloza, seconded by Member Osborne, that the Committee recommend City Council introduce and adopt Page 8 of 13 PW.1 Page 151 of 246 Ordinance No. 6482. Motion carried 3-0. C. Resolution No. 4999 (Chamberlain) A Resolution of the City Council of the City of Auburn, Washington, Amending Resolution No. 4920 Related to Temporary Reduction of Certain Fees by Changing the Eligibility Date Discussion Item C was discussed prior to Discussion Item A. The Public Works Committee decided to make the motion to move the Resolution forward to City Council. It was moved by Vice-Chair Peloza, seconded by Member Osborne, that the Committee recommend City Council adopt Resolution No. 4999. Motion carried 3-0. D. Recent Storm Event (Repp/Carlaw) Discussion Item D was discussed prior to Discussion Item A. Utilities Engineer Repp and Storm Drainage Engineer Carlaw distributed handouts that document rainfall to the Committee. Utilities Engineer Repp reported that the cumulative rainfall September 28th through October 1st was approximately 3.5” which translates into a 12-year storm event and was not a rare event. Utilities Engineer Repp explained how rainfall probabilities are calculated, following a question asked by Chairman Wagner. Utilities Engineer Repp noted that some of the storm issues in the month of September have been submerged roadways and the largest roadway issue was on 37th Street, which staff believes is attributable to construction socks that were left during the chipsealing work which was in process at that time. Repp stated that although there were some nuisances, the storm system is performing well. Using an aerial map, the Committee and staff discussed a storm drainage problem on the West Hill that was reported to the City by a citizen. Utilities Engineer Repp explained that staff will begin developing a long term plan for the storm drainage systems in both the West Hill and Lea Hill areas as part of the Storm Drainage Comprehensive Plan update. Repp stated that Storm Drainage Engineer Carlaw and the Page 9 of 13 PW.1 Page 152 of 246 consultant have developed a scope of work for the plan update and staff hopes to bring it to the next Committee meeting for review. E. Review of Chipseal and Striping Feedback from Community (Para) Member Osborne spoke about two problems citizens reported to him regarding chipseal treatment becoming too sticky and paint used for striping being very thick and spraying up along the side of a vehicle when the driver crossed over the stripe. Chairman Wagner asked if the county is using a thicker paint for striping than they have in the past. Transportation Manager Para answered that Pierce County does use a different type of paint than King County, but the paint is not so thick that it would produce the types of results on vehicles that Member Osborne had described. Director Dowdy spoke about the problems with the chipseal treatment. Director Dowdy stated that staff believes in some locations there was a little too much oil used in the treatment during days with lower temperatures and the treatment did not cure properly. Transportation Manager Para reported that Pierce County has almost completed all of the striping citywide and there have only been a few comments from drivers. Chairman Wagner asked how the striping is protected while it dries. Para stated that the county uses trucks with message boards to alert drivers to the wet paint, pilot cars, and place cones on the fresh paint. The cones are in place until the paint dries, which takes minutes, depending on the temperature. Transportation Manager Para stated that the paint should not be so thick as to splash up on cars, but may be tracked on tires. Chairman Wagner asked if there are any issues striping on the double chipseal treatments. Transportation Manager Para stated that any time new pavement is striped, some of the paint is absorbed by the asphalt and the roadway needs two coats of paint. Para noted that the specifications for the contract with the county include two paint passes. Assistant Director/City Engineer Selle stated that staff will be changing the specifications for chipseal treatments to better control the amount and type of emulsion used and the locations where chipseal treatments are applied, in response to a question asked by Chairman Wagner. Transportation Manager Para, answering a question asked by Chairman Wagner, said that there will be no local roads being treated with double chipseal in 2014, but the arterial streets have yet to be selected for their program. Page 10 of 13 PW.1 Page 153 of 246 Director Dowdy spoke about chipseal treatments that are being used throughout the state and full road recovery techniques. F. Capital Project Status Report (Gaub) Item 3 – C201A – M Street Underpass: Assistant City Engineer Gaub confirmed that the costs for King County did go down slightly because King County’s agreement was to pay their actual costs, following a question asked by Vice-Chair Peloza. Item 7 – CP1120 – Lea Hill Safe Routes to School Improvements: Assistant City Engineer Gaub stated that the work on 116th Avenue SE is complete, on 124th Avenue SE the sidewalk is in place, but there are a couple of pieces that are not complete because the contractor is waiting for Puget Sound Energy (PSE) to relocate two poles, and the signal equipment will not arrive until later in the month. Chairman Wagner asked if the project will still be finished in October. Assistant City Engineer Gaub said that it will likely be completed in October. Item 12 - EM1302 – Hidden Valley Vista Emergency Storm Repair: Assistant City Engineer Gaub reported that work started last week, materials have been moved in and welding on the pipe has been started. The pipe should start being run over the hillside this week. Vice-Chair Peloza asked about the height of the pipe from the ground. Assistant City Engineer Gaub stated the pipe will be on the ground with anchors every 100 feet holding the pipe in place. Staff answered questions asked by Member Osborne regarding the location where the pipe discharges into the river. Member Osborne asked if the project in within budget. Assistant City Engineer Gaub answered that it is. Item 33 – Lakeland Hills Reservoir Improvement: Vice-Chair Peloza asked about the construction start time. Assistant City Engineer Gaub explained that the reservoir, Reservoir 5, need to be taken offline to complete the work that needs to be done. Staff has decided not to take the reservoir offline during at highest peak time, Summer 2014, so the construction will begin in Fall 2014. Item 36 – CP1224 – 2013 Local Street Reconstruction: Assistant City Engineer Gaub explained that staff is working on incorporating reconstructing all the sidewalk into the project and discussing the property tie-ins with the property owners, in response to a question Page 11 of 13 PW.1 Page 154 of 246 asked by Vice-Chair Peloza. Chairman Wagner asked if the City has to pay the contractor for remobilization. Assistant City Engineer Gaub answered, not at this time. Assistant Director/City Engineer Selle noted the affect of the whether on the project schedule. Assistant City Engineer Gaub answered a question asked by Vice- Chair Peloza and Member Osborne about the relocation of the utility poles. Chairman Wagner asked about 5th Street. Assistant City Engineer Gaub stated that 5th Street has only a short portion of reconstruction and the remainder of the roadway is an overlay and will review the status of pavement work. Vice-Chair Peloza asked about the status of 23rd Street SE. Assistant City Engineer Gaub answered that 23rd Street is nearly complete. Vice-Chair Peloza asked if there is an issue with the curbing. Assistant City Engineer Gaub stated that curbs are not being replaced unless needed to address grade issues, there is some curbing that is being replaced on 23rd Street SE, but not all of it. Director Dowdy said existing damaged curb would not be replaced if the curb is still functional. G. Significant Infrastructure Projects by Others - Public Works Status Report (Gaub) Item 2 – 15the Street NW Gas Line: This item will be removed from the next report because the project is complete. H. Action Tracking Matrix (Dowdy) Item A – Completed Capital Improvement Projects Map update: Engineer Gaub reported that the update for October has been completed. Item B – Fulmer Well-Field Feasibility Study Updates: Engineer Repp confirmed that the item will be discussed at the next Public Works Committee Meeting, following an inquiry from Chairman Wagner. Item H, Speed Cushion Design Standards will also be discussed. Item J – Transportation Impact Fee Structure Analyses: The Committee and staff discussed what information will be included in the analyses. Item L – 105th Place SE Pavement Issue: Assistant Director/City Engineer Selle stated that the solution to the issue is to grind out the area and apply a traditional overlay, in response to a question asked by Vice-Chair Peloza. Assistant Director/City Engineer Selle stated that it is uncertain if the work will be completed in 2013. Vice-Chair Page 12 of 13 PW.1 Page 155 of 246 Peloza asked that the estimated completion date be changed to TBD. Chairman Wagner asked that “will consider overlay instead of chipseal in certain turn areas” be added to the status. Member Osborne asked for a cost comparison of different pavement treatments. IV. ADJOURNMENT There being no further business to come before the Public Works Committee, the meeting was adjourned at 5:16 p.m. Approved this 21st day of October, 2013. Page 13 of 13 PW.1 Page 156 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: October 7, 2013 Minutes Date: October 14, 2013 Department: Administration Attachments: October 7, 2013 Minutes Budget Impact: $0 Administrative Recommendation: Background Summary: Reviewed by Council Committees: Councilmember:Partridge Staff: Meeting Date:October 21, 2013 Item Number:FN.1 AUBURN * MORE THAN YOU IMAGINEDFN.1 Page 157 of 246 Finance Committee October 7, 2013 - 5:30 PM Annex Conference Room 1 MINUTES I. CALL TO ORDER Chair John Partridge called the meeting to order at 5:30 p.m. in Annex Conference Room 1 located on the second floor of the City Hall Annex at One East Main Street in Auburn. A. Roll Call Chair John Partridge, Vice Chair Largo Wales, and Member John Holman were present. City officials and staff members present: Mayor Peter B. Lewis, Councilmember Wayne Osborne, Councilmember Bill Peloza, City Attorney Daniel B. Heid, Planning Services Manager Elizabeth Chamberlain, Parks, Arts and Recreation Director Daryl Faber, Recreation and Program Marketing Manager Julie Brewer, Public Works Director Dennis Dowdy, Finance Director Shelley Coleman, Human Resources and Risk Management Director Brenda Heineman, Human Resources and Risk Management Assistant Director Rob Roscoe and Deputy City Clerk Shawn Campbell. B. Announcements There was no announcement. C. Agenda Modifications There was no agenda modification. II. CONSENT AGENDA A. September 16, 2013 Regular Meeting Minutes Member Holman moved and Vice Chair Wales seconded to approve the minutes as distributed. MOTION CARRIED UNANIMOUSLY. 3-0 B. Claims Vouchers (Coleman) Claims Voucher numbers 425314 through 425613 in the amount of $2,564,309.54 and two wire transfers numbers 0134 and 0135 in the amount of $1167.00 and dated October 7, 2013. Page 1 of 5 FN.1 Page 158 of 246 Committee members reviewed claims and payroll vouchers. Vice Chair Wales moved and Member Holman seconded to approve and forward claims and payroll vouchers to the City Council for consideration. MOTION CARRIED UNANIMOUSLY. 3-0 C. Payroll Vouchers Payroll check numbers 534112 through 534155 in the amount of $314,031.04 electronic deposit transmissions in the amount of $1,274,563.12 for a grand total of $1,588,594.16 for the period covering September 12, 2013 to October 2, 2013 See claims vouchers above for approval of payroll vouchers. III. ORDINANCES A. Ordinance No. 6482 (Chamberlain) An Ordinance of the City Council of the City of Auburn, Washington, Amending Sections 3.60.036, 3.94.040 and 3.94.060 of the City of Auburn Code relating to tax exemptions Planning Services Manager Chamberlain introduced Ordinance No. 6482. The tax exemptions are only for the residential portion for the property. The City has received requests from two developers for the City to reevaluate the minimum investment required to be eligible for the tax exemption. The Washington State Law that governs the tax exemption does not require a minimum investment. With the proposed changes developers would have two options; one is an eight year tax exception when the property is rented at market rate, the other option is for a twelve year tax exemption if the property has affordable housing. The minimum investment for the twelve year option was amended to $130,000.00. There would not be a minimum investment for the eight year option. Both developers are planning to use the eight year option. The other change in the code is related to application deadlines for a developer to be eligible for the tax exemption. Chair Partridge asked what the cost to the City would be in lost property tax revenue. Director Coleman stated the tax exemption would be approximately $34,000.00 per year. Member Holman stated the City would be receiving no tax revenue if the property is not purchased and developed. Mayor Lewis said the tax exemption is only on the residential portion of the property tax, not on the land or the retail space. The City will see an increased density in the downtown area bringing increased sales tax revenue. The City would also gain two developed properties in the downtown core. The projects include apartments with amenities similar to the Seattle and Bellevue Page 2 of 5 FN.1 Page 159 of 246 areas with lower rents. Member Holman stated this tax exemption will be realized in approximately $100.00 per month in lower rent. Vice Chair Wales stated this is an opportunity to bring a better quality product to the citizens of Auburn. IV. RESOLUTIONS A. Resolution No. 4993 (Heineman) A Resolution of the City Council of the City of Auburn approving the Interlocal Agreement between the City of Auburn and Association of Washington Cities Employee Benefit Trust for Health Care Director Heineman introduced Resolution No. 4993. The City is continuing their partnership with Association of Washington Cities (AWC) for health benefits. AWC has agreed to not raise the premiums for 2014. AWC is creating an insurance pool similar to what the City had looked into. Chair Partridge confirmed the health benefit to the employees would not change with the new agreement. Vice Chair Wales moved and Member Holman seconded to approve and forward Resolution No. 4993 to the full Council for consideration. MOTION CARRIED UNANIMOUSLY. 3-0 B. Resolution No. 4999 (Chamberlain) A Resolution of the City Council of the City of Auburn, Washington, amending Resolution No. 4920 related to temporary reduction of certain fees by changing the eligibility date Manager Chamberlain introduced Resolution No. 4999. She stated the fee schedule will be updated to reflect the change in eligibility fate from received to date submitted. The change is due to additional requirements made by the City. The developers would not be able to meet the deadline. Vice Chair Wales moved and Member Holman seconded to approve and forward Resolution No. 4999 to the full Council for consideration. MOTION CARRIED UNANIMOUSLY. 3-0 V. DISCUSSION ITEMS A. Resolution No. 4991 (Coleman) A Resolution of the City Council of the City of Auburn, Washington, authorizing the Mayor and City Clerk to execute an agreement between the City of Auburn and Mead & Hunt, Inc., for a Wildlife and Habitat Assessment at the Auburn Municipal Airport Page 3 of 5 FN.1 Page 160 of 246 Director Coleman introduced Resolution No. 4991. The agreement is with Mead & Hunt for Wildlife Habitat Assessment. The project is mostly grant funded with the Federal Aviation Administration (FAA) paying for 90 percent of the cost, the State of Washington will pay five percent and the City will pay the remaining five percent. The FAA requires the City to do a wildlife habitat assessment at the airport. B. Century West Task Order (Coleman) Council approve engineering design services for proposed improvements at Auburn Municipal Airport Director Coleman stated the agreement is the first task order for design services for improvements at the Auburn Municipal Airport. The Committee was provided a budget summary for the project. C. Auburn Symphony Orchestra Contracts (Coleman) Director Coleman reported the City sponsors the advertising for the Auburn Symphony Orchestra. The Orchestra has five events per year, and the City pays $100,000.00 for advertising. Director Faber stated the advertising always acknowledges the City as the sponsor. Vice Chair Wales asked if the City can request the Symphony hold their annual fund raiser in the City of Auburn. Mayor Lewis said the City can propose venues and accommodations for the Symphony's next fund raiser. The Committee discussed compensation for the musicians. Chair Partridge stated he would like to see the Symphony incorporate the youth of the City more. Member Holman said the Committee needs to ensure the City is getting a good value for the support provided to the Symphony. Mayor Lewis stated another component of the advertising for the Symphony is the promotion of the City. D. WCIA 2014 Assessment (Heineman) Director Heineman stated the City receives an annual assessment from Washington Cities Insurance Authority (WCIA). For this assessment losses paid by WCIA and worker hours are reviewed. Assistant Director Roscoe said the City's liability assessment is driven by worker hours and the last five years of losses. The City is in a liability pool. If one jurisdiction has a year with high losses the other jurisdictions help cover the losses. The City has decreased losses reducing the City's liability significantly over the last several years. This is attributed to staff working to limit the City's liability and Page 4 of 5 FN.1 Page 161 of 246 reporting problems quickly. VI. ADJOURNMENT There being no further business to come before the Committee, the meeting adjourned at 6:53 p.m. APPROVED this 21st day of October, 2013. __________________________ ____________________________ John Partridge, Chair Shawn Campbell, Deputy City Clerk Page 5 of 5 FN.1 Page 162 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: October 10, 2013 Minutes Date: October 16, 2013 Department: Planning and Development Attachments: October 10, 2013 Draft Minutes Budget Impact: $0 Administrative Recommendation: Background Summary: Reviewed by Council Committees: Councilmember:Wagner Staff: Meeting Date:October 21, 2013 Item Number:CC.1 AUBURN * MORE THAN YOU IMAGINEDCC.1 Page 163 of 246 Les Gove Community Campus October 10, 2013 - 3:30 PM Annex Conference Room 2 MINUTES I. CALL TO ORDER Chair Rich Wagner called the meeting to order at 3:35 p.m. in Annex Conference Room 2 located on the second floor of the One Main Professional Plaza, One East Main Street, Auburn, Washington. A. Roll Call Chair Rich Wagner and Member Wayne Osborne were present. Member Largo Wales was excused. Staff members present were Advisor to the Mayor Michael Hursh; Planning and Development Director Nancy Welch; Parks, Arts, and Recreation Director Daryl Faber; Finance Director Shelley Coleman and Office Assistant Sue Van Slyke. Audience members present: Councilmember John Partridge and Joe Borden of Lorig Associates. B. Announcements There were no announcements. C. Agenda Modifications There were no agenda modifications. II. CONSENT AGENDA A. Minutes - August 28, 2013 (Welch) Member Osborne moved and Chair Wagner seconded to approve the August 28, 2013 minutes as written. Motion carried unanimously. 2-0 III. DISCUSSION ITEMS A. Business Plan Update (Faber/Coleman) Parks, Arts, and Recreation Director Daryl Faber distributed the draft Business Operations Plan. The Committee discussed the updates that were made to the plan since the last meeting. Page 1 of 3 CC.1 Page 164 of 246 After a review of the draft Business Plan, the Committee provided the following recommendations: A. Page 3 - Executive Summary - Benefits of the Project · The Committee would like to provide additional examples and clarification of the diversity population (i.e., age, faith, economic classes) to be served by the Community Center. Chair Wagner will draft the bullet and Director Wagner and Ms. McKnight, Parks, Arts and Recreation Arts Coordinator, will refine the definition. · Chair Wagner will review the “benefits of the community” center as previously noted by Jodi Riker Yap. The Committee would like to emphasize and add the statement that the City of Auburn is an “inclusive” community in this section. B. Page 5 · Director Faber will explore additional categories for the Demographic Diversity section such as religion, age, education level, and family household income. C. Page 6 · Add bullet for “Events” that will state the variety of anticipated event usage in the community center (trade shows, wedding receptions, organizational events, etc.) D. Page 7 · Director Faber will have BLRB Architects change Area Summary into two categories: “Wall Thickness” and “Internal Circulation”. E. Page 8 · The Committee will include separate rates for businesses and citizens. Fees and Charges manual to include a “not to exceed” or a range. F. Page 10 · The Committee suggested that when code updates are made by BLRB Architects for re-bidding the Community Center, the building infrastructure that would be necessary for installing solar electric power panels should be investigated. G. Page 11 · Director Faber presented the Proforma to the Committee. · Chair Wagner will meet with Director Faber to eliminate line items in this section and add an “assumption” legend with footnotes. H. Page 12 Page 2 of 3 CC.1 Page 165 of 246 · The Committee will add a very low cost/no cost availability option for citizens and research a possible bartering option. I. Page 13 · Director Coleman and Director Faber will review and update the Estimated Projected Cost page. The Committee will update the Business Plan draft for the October 23, 2013 LGCC meeting. B. Flag Pavilion Planning Committee (Faber) The Committee determined that a design review committee will be formed for the Flag Pavilion and may include Greg Watson and Nancy Colson from the Arts Commission, Chair Wagner, Maija McKnight, and a community member. Chair Wagner will solicit Ms. McKnight to prepare information for the next LGCC meeting. C. Action Tracking Matrix (Wagner) Committee reviewed the draft Action Track Matrix. Item F · Director Coleman will contact Director Dowdy for information and input on the traffic analysis (motorized and non-motorized pedestrian traffic on Deals Way) and check to see if the estimated completion date is accurate. Item I · Director Faber will collaborate with Public Affairs and Marketing Manager Dana Hinman on the city-wide and parks citizens’ survey and will change the estimated completion date. IV. ADJOURNMENT There being no further business to come before the Committee, the meeting was adjourned at 4:27 p.m. APPROVED THIS _______ day of ________________, 2013. _______________________________ Rich Wagner, Chair ______________________________ Sue Van Slyke, Office Assistant Page 3 of 3 CC.1 Page 166 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: October 7, 2013 Regular Meeting Minutes Date: October 14, 2013 Department: Administration Attachments: 10-7-2013 Minutes Budget Impact: $0 Administrative Recommendation: Background Summary: Reviewed by Council Committees: Councilmember:Staff: Meeting Date:October 21, 2013 Item Number:CA.A AUBURN * MORE THAN YOU IMAGINEDCA.A Page 167 of 246 City Council Meeting October 7, 2013 - 7:30 PM Auburn City Hall MINUTES Watch the meeting video Meeting videos are not available until 72 hours after the meeting has concluded. I. CALL TO ORDER A. Flag Salute Mayor Peter B. Lewis called the meeting to order at 7:30 p.m. and led those in attendance in the Pledge of Allegiance. B. Roll Call City Councilmembers present: Rich Wagner, Nancy Backus, Bill Peloza, John Partridge, Largo Wales, Wayne Osborne, and John Holman. Department directors and staff members present: Planning and Development Director Nancy Welch, Human Resources and Risk Management Director Brenda Heineman, Human Resources and Risk Management Assistant Director Rob Roscoe, Finance Director Shelley Coleman, Chief of Police Bob Lee, Advisor to the Mayor Michael Hursh, Parks, Arts and Recreation Director Daryl Faber, Economic Development Manager Doug Lein City Attorney Daniel B. Heid, Public Works Director Dennis Dowdy, and Deputy City Clerk Shawn Campbell. C. Announcements, Appointments, and Presentations There was no announcements, appointments or presentations. D. Agenda Modifications An updated agenda was provided to Council prior to the meeting. II. CITIZEN INPUT, PUBLIC HEARINGS & CORRESPONDENCE A. Public Hearings 1. 2013 - 2014 Mid Biennial Budget Public Hearing No. 1 (Coleman) Director Coleman presented a Power Point presentation for the 2013-2014 Mid Biennial Budget update. Director Coleman reviewed the schedule of public hearings and Council Committee meetings for the 2013 - 2014 Mid Biennial Budget update. The preliminary property tax assessed valuation is Page 1 of 8 CA.A Page 168 of 246 up approximately six percent for 2014. The federal budget, Marketplace Fairness Act and integration with streamlined sales tax will have an impact on the economy. The labor agreements and the annexation sales tax credit that sunsets in mid 2017 will also have an impact on the upcoming budget. At 7:43 p.m., Mayor Lewis opened the public hearing on the 2013 - 2014 Mid Biennial Budget. There being no public comment, the hearing was closed. B. Audience Participation This is the place on the agenda where the public is invited to speak to the City Council on any issue. Those wishing to speak are reminded to sign in on the form provided. Bonnie Tiansing, 29609 57th Place South, Auburn Ms. Tiansing said she represents the No North Auburn Garbage Committee. She proposed the transfer station stay in Algona. C. Correspondence There was no correspondence for Council review. III. COUNCIL COMMITTEE REPORTS A. Municipal Services Chair Peloza reported the Municipal Services Committee met September 23, 2013. The Committee forwarded to full Council for consideration the Century West Task Assignment No. 1 and Resolution No. 4991 regarding the Wildlife Habitat Assessment at the Auburn Municipal Airport. The Committee also discussed the Auburn Valley Humane Society, pet licensing, Ordinance No. 6480, Resolution No. 4993, and received public comment from John Brekke regarding siting a transfer station in Auburn. The Committee also discussed their project matrix. The next regular meeting of the Municipal Services Committee is scheduled for October 14, 2013 at 3:30 p.m. B. Planning & Community Development Chair Backus reported the Planning and Community Development Committee met September 23, 2013. The Committee discussed the King County Transfer Station, Ordinance No. 6480, the Auburn Avenue Theater lease, business licensing, the final briefing on the flood plain management plan, Ordinance No. 6482, and the multi family property tax exemption. The Committee also discussed the City moratorium on cannabis. The next regular meeting of the Planning and Community Development Committee is scheduled for October 14, 2013 at 5:00 p.m. Page 2 of 8 CA.A Page 169 of 246 C. Public Works Chair Wagner reported the Public Works Committee met this afternoon. The Committee reviewed right of way permits for the Veterans Day and Santa Parades, the Halloween Harvest festival and Multi Care Health System, the Committee also reviewed two change orders for the SCADA system, and on call professional services agreement for survey services. The Committee discussed the Gateway project, Ordinance No. 6482, Resolution No. 4999, the Capital Projects status report, significant infrastructure projects by others and the action tracking matrix. The Committee had a joint session with the Planing and Community Development Committee to hear a briefing on the redevelopment of the drive in site (Robertson Properties Group Gateway Project). The next regular meeting of the Public Works Committee is scheduled for October 25, 2013 at 3:30 p.m. D. Finance Chair Partridge reported the Finance Committee met this evening at 5:30. The Committee reviewed claims vouchers in the amount of approximately $2.5 million and payroll vouchers in the amount of $1.5 million. The Committee also forwarded to full Council for consideration Ordinance No. 6482, Resolution No. 4993 and Resolution No. 4999. The Committee also discussed Resolution No. 4991, Century West task order, Symphony Orchestra contracts, and the Washington Cities Insurance Authority Risk assessment. The next regular meeting of the Finance Committee is scheduled for October 21, 2013 at 5:30 p.m. E. Les Gove Community Campus The next regular Les Gove Community Campus meeting is scheduled for October 10, 2013 F. Council Operations Committee The next regular meeting of the Council Operations Committee is scheduled for November 4, 2013. IV. CONSENT AGENDA 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. September 16, 2013 Regular Meeting Minutes B. Claims Vouchers (Partridge/Coleman) Claims Voucher numbers 425314 through 425613 in the amount of $2,564,309.54 and two wire transfers numbers 0134 and 0135 in the amount of $1167.00 and dated October 7, 2013. Page 3 of 8 CA.A Page 170 of 246 C. Payroll Vouchers (Partridge/Coleman) Payroll check numbers 534112 through 534155 in the amount of $314,031.04 electronic deposit transmissions in the amount of $1,274,563.12 for a grand total of $1,588,594.16 for the period covering September 12, 2013 to October 2, 2013 D. Public Works Project No. C524A (Change Order 17) (Wagner/Dowdy) City Council approve Change Order No. 17 in the amount of $107,595.07 to Contract No. AG-C 401 for work on Project No. C524A, SCADA System Improvements E. Public Works Project No. C524A (Change Order 18) (Wagner/Dowdy) City Council approve Change Order No. 18 in the amount of $243,747.42 to Contract No. AG-C 401 for work on Project No. C524A, SCADA System Improvements F. Century West Task Order (Peloza/Coleman) City Council approve engineering design services for proposed improvements at Auburn Municipal Airport G. Annual On-Call Survey Agreement Amendment (Wagner/Dowdy) City Council approve an amendment to the Annual On-Call Professional Service Agreement for Survey Services (AG-C-358) for 2013 Deputy Mayor Backus moved and Councilmember Wagner seconded to approve the Consent Agenda. The Consent Agenda includes minutes, claims and payroll vouchers, public works projects and agreements. MOTION CARRIED UNANIMOUSLY. 7-0 V. UNFINISHED BUSINESS There was no unfinished business. VI. NEW BUSINESS The was no new business. VII. ORDINANCES A. Ordinance No. 6480 (Backus/Faber) An Ordinance of the City Council of the City of Auburn, Washington, creating a new Chapter 2.97 of the Auburn City Code, defining a process for considering requests for placement of monuments, memorials and structures to be located in City parks and on City property Page 4 of 8 CA.A Page 171 of 246 Deputy Mayor Backus moved and Councilmember Holman seconded to adopt Ordinance No. 6480. Deputy Mayor Backus stated the ordinance establishes a process for the Council regarding future requests from organizations for monuments or funds for a monuments on City property. MOTION CARRIED UNANIMOUSLY. 7-0 B. Ordinance No. 6482 (Backus/Welch) An Ordinance of the City Council of the City of Auburn, Washington, amending sections 3.60.036, 3.94.040 and 3.94.060 of the City of Auburn Code relating to tax exemptions Councilmember Partridge moved and Councilmember Wales seconded to adopt Ordinance No. 6482. Councilmember Partridge stated the tax exemption already exists in the City. The amendment simply makes the exemption relevant to the current market. MOTION CARRIED UNANIMOUSLY. 7-0 VIII. RESOLUTIONS A. Resolution No. 4991 (Peloza/Coleman) A Resolution of the City Council of the City of Auburn, Washington, authorizing the Mayor and City Clerk to execute an agreement between the City of Auburn and Mead & Hunt, Inc., for a Wildlife and Habitat Assessment at the Auburn Municipal Airport Councilmember Peloza moved and Councilmember Osborne seconded to adopt Resolution No. 4991. Councilmember Peloza said the assessment is required by the Federal Aviation Administration (FAA) and is being funded mostly by grants. The FAA will pay ninety percent of the cost of the assessment, the State of Washington will pay for five percent and the City will pay the remaining five percent. Once the assessment is complete, the FAA will determine if the City needs to mitigate the wildlife at the airport. MOTION CARRIED UNANIMOUSLY. 7-0 B. Resolution No. 4993 (Partridge/Heineman) A Resolution of the City Council of the City of Auburn approving the Interlocal Agreement between the City of Auburn and Association of Washington Cities Employee Benefit Trust for health care Page 5 of 8 CA.A Page 172 of 246 Councilmember Partridge moved and Councilmember Wales seconded to adopt Resolution No. 4993. Councilmember Partridge stated the agreement is with Association of Washington Cites for employee health care. MOTION CARRIED UNANIMOUSLY. 7-0 C. Resolution No. 4999 (Backus/Welch) A Resolution of the City Council of the City of Auburn, Washington, amending Resolution No. 4920 related to temporary reduction of certain fees by changing the eligibility date Councilmember Partridge moved and Councilmember Wales seconded to adopt Resolution No. 4999. Councilmember Partridge stated the tax exemption credits will expire by the end of 2013. The City needed additional time to complete all of the requirements. MOTION CARRIED UNANIMOUSLY. 7-0 IX. REPORTS 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 Deputy Mayor Backus reported on her attendance at the swearing in of a new police officer, the interview of a candidate for the Comprehensive Plan Visioning Project, Employee Recognition luncheon, the ribbon cutting for Remax Reality South, Auburn Tourism Board meeting, the Committee of the Whole meeting, the Auburn Police property crimes presentation at the Senior Center, a neighborhood meeting, and the See Ya Later Foundation Auction and Banquet. Councilmember Wagner reported on his attendance at the Good Eggs Breakfast, the Valley Regional Fire Authority Board meeting, the Art Commission meeting and the Regional Access Mobility Project (RAMP) meeting. Councilmember Wales reported she attended the opening day at Green River Community College, the Puyallup River Watershed meeting, the Sound Cities Association meeting, and the Pierce Counties Cities and Towns meeting. Page 6 of 8 CA.A Page 173 of 246 Councilmember Holman reported he attended the Gator Fest at Green River Community College, the Washington State Forensic Investigation Council meeting, the second anniversary of the SCORE facility, and the Green River Community College Foundation Board strategic planning retreat. Councilmember Peloza reported he attended the Metropolitan Solid Waste Advisory Committee meeting, the Auburn Police Department open house, the Regional Water Quality Committee meeting, Employee Recognition luncheon, Sound Cities networking dinner, and the Committee of the Whole meeting. He also reported the Auburn International Farmers Market has completed another successful season. The next Farmers Market will be June 8, 2014. Councilmember Osborne reported he attended the Good Eggs Breakfast, the Employee Recognition luncheon, the Katherine and Reta House luncheon, Sound Cities Networking dinner, and the Master Builders Representative meeting. Councilmember Partridge reported on his attendance at the Sound Cities Association networking dinner, the Police Property Crimes presentation, the Nike Outlet Collection ribbon cutting, and the Regional Law, Safety and Justice Committee meeting. B. From the Mayor Mayor Lewis thanked Councilmember Holman for his comments on the SCORE facility and noted the City has already seen cost savings from contracting court services with King County. Mayor Lewis commented that the State of Washington will need to complete the Highway 509, Highway 167, and Auburn Way and West Valley Highway freight corridors in order to stay competitive with other ports in the region. Mayor Lewis reported on his attendance at the Good Eggs Breakfast, Gator Fest where he presented the history of Green River, the Republic of Korea National Day, the See Ya Later Foundation Banquet and the King County meeting on the proposed Transfer Station sites. X. EXECUTIVE SESSION At 9:01 p.m., Mayor Lewis recessed the meeting for a five minute intermission and then to executive session for approximately 20 minutes to discuss pending/potential litigation pursuant to RCW 42.30.110(1)(i). Department directors and staff required for the executive included: City Attorney Daniel B. Heid, Director Dowdy, Director Coleman, and Director Page 7 of 8 CA.A Page 174 of 246 Heineman. It was indicated that potential action by the Council could occur following the executive session. At 9:23 p.m. Mayor Lewis reconvened the regular meeting. Councilmember Wagner moved the City approve the settlement agreement and release between the City of Auburn and Paul Fong and Nancy Fong in full settlement of King County Superior Court Case # 11-2- 35262-5KNT as to City of Auburn claims against Paul Fong and Nancy Fong. Councilmember Peloza seconded the motion. Councilmember Wagner stated the agreement is the settlement of the lawsuit as to the final defendant in a case where the City sued to enforce plat requirement for a plat initially started under King County Codes for an area in the Lea Hill annexation area. This action sought to hold accountable those who failed to take required action. MOTION CARRIED UNANIMOUSLY. 7-0 XI. ADJOURNMENT There being no further business to come before the Council, the meeting adjourned at 9:24 p.m. APPROVED the 21st day of October, 2013. __________________________ _____________________________ Peter B. Lewis, Mayor Shawn Campbell, Deputy City Clerk Page 8 of 8 CA.A Page 175 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: Claims Vouchers Date: October 14, 2013 Department: Administration Attachments: No Attachments Available Budget Impact: $0 Administrative Recommendation: City Council approve claims vouchers as part of the Consent Agenda. Background Summary: Claims voucher numbers 425614 through 425853 in the amount of $7,403,386.03 and dated October 21, 2013. Reviewed by Council Committees: Finance Councilmember:Partridge Staff:Coleman Meeting Date:October 21, 2013 Item Number:CA.B AUBURN * MORE THAN YOU IMAGINEDCA.B Page 176 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: Payroll Vouchers Date: October 14, 2013 Department: Administration Attachments: No Attachments Available Budget Impact: $0 Administrative Recommendation: City Council approve payroll vouchers. Background Summary: Payroll check numbers 534156 through 534193 in the amount of $915,812.51 and electronic deposit transmissions in the amount of $1,276,753.01 for a grand total of $2,192,565.52 for the period covering October 3, 2013 to October 16, 2013. Reviewed by Council Committees: Finance Councilmember:Partridge Staff:Coleman Meeting Date:October 21, 2013 Item Number:CA.C AUBURN * MORE THAN YOU IMAGINEDCA.C Page 177 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: Public Works Project No. C0915 Date: October 14, 2013 Department: Public Works Attachments: Budget Status Sheet Final Pay Estimate Vicinity Map Budget Impact: $0 Administrative Recommendation: City Council approve Final Pay Estimate No. 8 to Contract No. 12-04 in the amount of $0.00 and accept construction of Project No. CP0915, Well 1 Transmission Main. Background Summary: This project constructed a water transmission line from the Well 1 site to the Howard Road Corrosion Control Treatment Facility (CCTF) and constructed a replacement storm drainage mainline on M Street SE, consisting of the following: l Water main improvements consisted of 4,451 linear feet of new 16-inch main on M Street SE from the Well 1 site to the Howard Road CCTF along the route depicted on the attached vicinity map. l Storm drainage improvements consisted of upgrading 2,433 linear feet of existing 12- inch main to new 18-inch main along M Street SE from 8th Street SE to Auburn Way South and addressed street drainage needs along the route. A project budget contingency of $27,764.00 remains in the 430 Water Utility Fund. A project budget contingency of $128,471.00 remains in the 432 Storm Drainage Fund. Reviewed by Council Committees: Public Works Councilmember:Wagner Staff:Dowdy Meeting Date:October 21, 2013 Item Number:CA.D AUBURN * MORE THAN YOU IMAGINEDCA.D Page 178 of 246 Project No: CP0915Project Title: Project Manager: Robert Lee Initiation/Consultant Agreement Initiation Date: _10/05/2009___ Permision to Advertise Advertisement Date: _8/20/2012_ Contract Award Award Date: _11/20/2012_ Change Order Approval Contract Final Acceptance Funding Prior Years 20122013 Future Years Total 430 Fund - Water14,04600014,046 430 Fund - Water (PWTFL)0231,0231,157,68601,388,709 432 Fund - Storm Utility01,899760,0050761,904 Total14,046232,9221,917,69102,164,659 Activity Prior Years20122013Future Years Total Design Engineering - City Costs5,42520,5840026,009 BUDGET STATUS SHEET Well 1 Transmission Line Date: October 14, 2013 The "Future Years" column indicates the projected amount to be requested in future budgets. Funds Budgeted (Funds Available) Estimated Cost (Funds Needed) Design Engineering - Consultant Costs8,621193,52300202,144 Construction Contract Bid001,576,36901,576,369 Line Item Changes00103,0870103,087 Construction Engineering - City Costs018,81582,0000100,815 Total14,046232,9221,761,45602,008,424 Prior Years20122013Future Years Total *430 Funds Budgeted ( )(14,046)(231,023)(1,157,686)0(1,402,755) 430 Funds Needed14,046231,0231,129,92201,374,991 *430 Fund Project Contingency ( )(0)0(27,764)0(27,764) 430 Funds Required 00000 Prior Years20122013Future Years Total *432 Funds Budgeted ( )0 (1,899)(760,005)0(761,904) 432 Funds Needed01,899631,5340633,432 *432 Fund Project Contingency ( )00(128,471)0(128,471) 432 Funds Required 00000 * ( # ) in the Budget Status Sections indicates Money the City has available. 432 Storm Budget Status 430 Water Budget Status H:\PROJ\CP0915-Well 1 Transmission Line\Budget\CP0915 Trans-BudgetStatusSheet.xls1 of 1CA.D Page 179 of 246 CITY OF AUBURN CO. NO. 12-04 CP0915 PAY.ESTIMATE#8 &FINAL CONTRACTOR: Scarsella Brothers, Inc PO Box 68697 Seattle, WA 98168 Phone: 253-872-7173 The undersigned has reviewed and approved this final pay estimate. I agree that it is a true and correct statement showing all monies due me from the City of Auburn under this contract; that I have carefully examined the final pay estimate estimate and understand it and that I hereby release the City of Auburn from any and all claims of whatsoever nature which I may have, arising out of this contract,which are not set forth in this estimate.I i i PAYMENT DUE TO CONTRACTOR= 0.00 i i Signatures: i Contractor Date G j Inspector Date 3 Project Manager Date City Engineer Date i i i hlproNWCP0915 PEAS 5 of 5 9f112013 at 822 AM CA.D Page 180 of 246 CO. NO.12-04 CITY OF AUBURN CP0915,Well 1 Transmission Main Well 1 Transmission Main PROJECT SUMMARY CO. NO. 12-04 PAY ESTIMATE#8&FINAL Original Contract Contract Change Amount Orders Total Payment This Period Percent/Contract SCHEDULE A: Stone Utility Improvements Contract 408,807.50 $ 408,997.65 100% NO TAX Retainage(-5%) 20,449.88) $ SCHEDULETOTAL $ 408,807.50 $ 388,547.77 0.00 SCHEDULE B: Water Utility Improvments Contract 678,024.50 $ 775,530.73 $0.00 114% Sales Tax(+9.5%) $ 64,412.33 $ 73,675.42 $ Retainage(-5%) 38,776.54) $ SCHEDULETOTAL $ 742,436.83 $ 810,429.61 0.00 SCHEDULE C: Street Improvements Contract 425,125.00 $ 421,25173 0.00 99% NO TAX Retainage(-5%) 21,062.59) $ SCHEDULETOTAL $ 425,125.00 $ 400,189.14 0.00 OVERAL PROJECT SUMMARY TOTAL Contract 1,605,780.11 TOTAL Sales Tax(+9.5%) 73,675.42 TOTAL Contract Payment 1,679,455.53 106.5% TOTAL CONTRACT AMOUNT TO DATE (including Sales Tax-Sch B) 1,679,455.53 TOTAL PAYMENT TO CONTRACTOR 1,599,166.52 $ PAYMENT DUE CONTRACTOR:0.00 Period Dates Begin: June 21,2013 End: Aug 20,2013 h:\prollpekCP0915 PE.)ds 1 of 1 10/142013 at 11:51 AM CA.D Page 181 of 246 CITY OF AUBURN CO.NO.12-04 CP0915 Well 1 Transmission Main PAY ESTIMATE#8&FINAL SCHEDULE C: Street Improvements ITEM ESTIMAT I TOTAL PERIOD UNIT PERCENT EST. NO. ITEM DESCRIPTION E I QUANTITY QUANTITY TYPE UNIT COST TOTAL COST PERIOD COST QTY. 67 Construction Site Sighs 4 3 FA 1,000.00 $3,000.00 $75% 68 ra c Control Laibor ZF7lin. per our 1,300 2564 HR 50. $ 128,200.00 $ 197% 69 Tim oCntrol- upermsor 1 7 LS 1001000.00 $ 100,000.00 $ 10D% 7D equentiaTArrow Sig n 60 71 DAY 50.00 $3,550.00 $ 71 7oAa6fe Oh—an geable Message ign 60 59 A 73-W $4,425.00 $ 98% 72 ANl1 Ol f2-lncF-i PGB E2( ass 1,580 112L06 TON 86.00 $ 964 12.88 $ 71 73 GornmerclirHMA, 43.23 TON 1 5.ff $5,836.05 $ 62% 74 Planing bituminous Pavement 8,800 4754.51 SY 2.00 $9,509.00 $ 54% 75 Temporary Water Pollution/Erosion ontro 1 0 Eq.Ad. 10,000.00 $ 0% 76 Lam Sod 340 436.21 SY 6.75 -$ ._ 2,944.35 $ 128% 77 Ops01 ype 45— C — -37.00 $1,461.50 $ 88% 78 Hark Mulch 20 D CY _ _ 40.00__ $ _ 0% 79 Landscape Restoration 1 OS3284 Eq.Adj. 10,000.00 $ _ 5,328.40 $ 53% 80 ra is igna ysern ompee 1 111 L ____ 5,000.00 £ 25,000.00 $ 100-A 81 Temporary Video Detection s em t i 23,000.00 $ __25,000.00 $ -__,_ 100% 82 a1n ine- In v4 a 4,750 602211 L 0.40 $3,208.80 $ 169% 83 am ne- In wi a I 2,7UU 2188 0.5 i $ _1,094.00 3 81% 84 astc ne- m wt a 1,460 795 2. 5 . $1,788.75-,$ _______54% 85 as t2 rossw to ee an op ar 1nc 427 4.00 $1,708.00 1 S- _ - 17896 86 es C fa C rrow 16 17 1,105.00 $106% 87 Plastic ra Ic Letter 28 11 1,680 no I $ 70°A I SCHEDULETOTAL 0.00 I Period Dates Begin: June 21,2013 End: Aug 2D.2013 h:lprolpe\CP0915 PEAs 3 of 5 9/112013 at 8:22 AM i CA.D Page 182 of 246 CITY OF AUBURN CO.NO.12-04 CP0915 Well 1 Transmission Main PAY ESTIMATE#8&FINAL SCHEDULE B: Water Utility Improvments NO. ITEM DESCRIPTION I ESTIMATE UANTITY QUANAT7'IY PERIOD UNIT TYPE I UNIT COST TOTAL COST PERIOD COST PERCENT EST 34 minor 1_ 1.6414848 q.Adj. 50,W0.00 $ 82,074.24 $ 164% 35 i o o ing 40 60 EA 0 $ 24,000.00 $ 150% 36 Mobilization 1 1 1.00 S ___ _ 1.00 $ 100% 37 Removal o Structures an s_NCtlons 1 3,000.00 $3_,0_0.0.00_ $ _ 100% 38 Remove an Reset Fence 20 0 LF _ 46.00 0% 39 Removal o Concrete or Aspheft Pavement j0 945.4 16.80 8 15_,ae2,72 $ 350% a0 Removal o Cement oncrete Flat Work __ -49.2 10.00 $ _ _ 492.00 $21% 41 Removal o Curb an Gu-ffei 320 598 LF 8.00 _s 4,7884.00 $ 187% 42 nsln a e oun a on cavation Induding 40 0 CY 10.00 5 0°F, 43 rave rrow n u Ing au __- 35 0 TON 10.00'; S _0% as onng or xtm v-Fzca aTGlass 6- 33,150 36282 SF 0.01 5 362.82 $ 45 Crash Surfacing Base Course 1,200 _ _2440.86 N 27.00 I E 65,903.22 $ 203% 46 RMA 1..1-n ass 860 1736.59 3. is 148,478.45 5 -- _ 202% 47 Asphalt o Patch 100 _ __170.98 110.00 5 18,807.80 S _ _ _ _ - -- _ 171% a8 Pipe Foundation Material 170 0 20.00 S 0% 49 imported Ipe bedding 2,750 1652-41 12.00 $ 19,828.92_ _$ 60% 50 belect I rench t3acli 6,600_ _ 0 0.01 s __ 51 Controlled Density i or Trench- _ 50 _ 0 C 0.00 $ 0% 52 peas ass u ie iron Pipe or ate 4,500 _ __ 4451.14 LF 73.30 $ 3W.268.56 _g _ _ _ 99% 53 Relocation o s ng •i aer ain __ i _ __ 0 500.00 $ 5 0% 54 Relocation of Fining inc Water Main 4 0 5, 0.00 E S o% 55 Relocation o s ng 12-inch Water Main 3 _ 0 8,500.00 $ 5 _ 0% 56 2Anch Permanent owo ssem y F320 1 EA 2,350.00 $2,350.00 $ _ ____ 100% 57 -mc emporary owo ssem y -_ 2 2 1,260.00 $ _ 1,520.60 -_ _100% 58 a a ve, i lam. 6 6 2,775.00 S %6,650.00 S 100% 59 om na on r ease r a uum Vatde _ 1 EA 2,215.1)0 15 2,215.00 6o y ran ssem y 1 -1 4,30000 5 4,300.00 5 100% 61 atef ervicR nrt Ian °in efef wlth 1 6 _ _ 6 2,400.00 $ 14,400.00_E 1062emenoncrearaIcuranel563L25.00 $ 14,575.00 $ 1863nuSlaanommercianvewaypron3 __ 49 65.00 $ __3,377% 64 onumen ype o ile 1 1 0. 5 500.00 $ 65 emen oncrefe evra 04 _ 49.2 2,952.00 $ 47% 66 Relocate Permanent Traffic ign and Posf--- 1 4 EA 500.00 $2,000.00 S 400° SCHEDULE TOTAL 0.00 0.0094864 Period Dates Begin: June 21.2013 End: Aug 20,2013 haproiipe1CP0915 PExls 2 of 5 9/11/2013 at 8:22 AM CA.D Page 183 of 246 CITY OF AUBURN CO.NO. 12.04 CP0916 Well 1 Transmission Main PAY ESTIMATE#8&FINAL SCHEDULE A: Storm Utility Improvements ITEM ESTIMATE I TOTAL PERIOD UNIT PERCENT EST. NO. ITEM DESCRIPTION QUANTITY QUANTITY QUANTITY TYPE UNR COST TOTAL COST PERIOD COST TY 1 MinorChanges 1 0.479774 Eq.Ad.9,595.48 S 48% 2 Utility o o mg 30 zs _ _ _ EA 4 0.00 $ __ 10,400.00 $ 87% 3 o i¢a oiAf6T-1- n 1 i _ 4 40.000.00 $ 100°A 4 emov cures and Obshuchons 1 7 -L 6,000.00 $ 100% 5 F:emO fFencc 10 _ _ 0 L 40. $ a% 6_ erf—lVaoof-Concrete or Asp a avemen 110 _ 688 SY 16.80_ $ 625% 7 Rem Val of Cement oncreie Flat Work 160 65 3 SY 10.00 _$_ 653.00 $41% 8 Removal of Curti a I utter 535 L 8.00 S 4,280.00 S 191% 9 Abandon Existing Cat sms 5 s 0A 1,200.00 $ 120% io Unsuitable Fouridation Ezcava on n ing o 0 CY 10.00 $ 0% 11 Gravel Borrow nduding Haul-'- 40 6 TO 10.00 $ _ _ - $ 0% 12 onng or m xcavation Class__ 21,000 21884 duF 218.84 $ 13 Crushed U acing Course _ 790 927.64__ TON 27.00 $ 25,046.28 $ 14 1-inch 134-22 (Class E) 580 —78826-- __ TON 85.50 $ 67,398.23 S 136% 15 p e o a 100 56.83 TOR- 110.0 I$6,2-51-.3-0 $ 579/6 16 o v ny hrrid"e(PVC)Storm 2,40 2433-' --LF 37.00 $ 9.6.821.00 $ 101% 17 a o wny ode(PVC) form 210 206 LF 43.0 S _ 8,858.00 $ 98% 18 u e r acial Class 52,Storm I 296 _--_ S _ 24,272.00 $ 104% 18 Storm Sewer Television Inspection 2,895 2924 3.00 S 8,772.00 $ 101% 20 a asn ype - - 18 17 - _ EA 60.00 5 _ 21,420.00 S 94% 21 a assn ype ,48 inch Diam. 12 11 S 25,960.00 $ 92Y° 22 a asm ype mch Dian. 1 1 1 _--- FA 3,915. !S _ 3,915.00 $ 100% 23 Uo-n-n-k o xis mg afch Basin 6 9 _ - EA 500.00 is 4,500.00 $ JIWA 24 ipe oun a ion Material _ _ 110 0 TON 20.00 $ _ o% 25 mp a Pjo6edding 1,700 1344.76 12 1_6_,13712 $ 790%akfill T N26Seed[TrencTB 27 on a e ensly Fill(CDF)for ren 50 h 0% 28 t c e ensily Fih(CDF)for- illing ape 80 n 100 00 S _7,700.00 $ 96% 29 m iam. -SFde-Sewer 30 0 LF__81.50 S S 0% 30 Cement Concrete Traffic u an Gutter _ 280 437 LF _25.00 $ 10.9251W S 31 n us na an ommercia rry eway Apron _—_ 13 0 SY 32 Cement Concrete ewa TT--_ _ _ 65.3 SY __ 60.00 $3,918.00 S 54°b 33 a oca a Permanent ra is Sign an 0 1 0 EA 500.00 1 $ SCHEDULETOTAL 0.00 I Period Dates Begin: June 21,2013 End: Aug 20,2013 hipmj1pe1CP0915 PE.xis 1 of 5 9/1112013 at 8:22 AM 1 CA.D Page 184 of 246 CA.D Page 185 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: Public Works Project No. CP1003 Date: October 11, 2013 Department: Administration Attachments: Lea Hill Park - Project Acceptance Budget Impact: $0 Administrative Recommendation: City Council approve final pay estimate and accept construction of the Lea Hill Park Project, Contract No. 12-13, Bargmann Enterprises, LLC. Background Summary: Lea Hill Park - 12305 SE 316th St. Auburn, WA. Construction of a new 5 acre park on a 7 acre parcel including earthwork, grading, drainage, irrigation, utility installation, a picnic shelter, a play area, two sport courts, a ball field with backstop, a skate spot, pervious asphalt trail and roadway improvements. A summary of all pay estimates including the final pay estimate #7 is attached. All pay estimates have been paid. Reviewed by Council Committees: Municipal Services Councilmember:Peloza Staff:Faber Meeting Date:October 21, 2013 Item Number:CA.E AUBURN * MORE THAN YOU IMAGINEDCA.E Page 186 of 246 CA . E Pa g e 1 8 7 o f 2 4 6 CA . E Pa g e 1 8 8 o f 2 4 6 CA . E Pa g e 1 8 9 o f 2 4 6 AGENDA BILL APPROVAL FORM Agenda Subject: Call for Public Hearing - 2013-2014 Biennial Budget Mid- biennial Review Date: October 10, 2013 Department: Finance Attachments: No Attachments Available Budget Impact: $0 Administrative Recommendation: City Council to call for a second public hearing to be held November 4, 2013 to receive public comments and suggestions with regard to the proposed mid-biennial modifications to the 2013-2014 Adopted Biennial Budget. Background Summary: This second public hearing provides an opportunity for any citizens to make comments or suggestions prior to review and publication of modifications to the 2014 adopted budget. The first public hearing was held on October 7, 2013. Reviewed by Council Committees: Finance Councilmember:Partridge Staff:Coleman Meeting Date:October 21, 2013 Item Number:CA.F AUBURN * MORE THAN YOU IMAGINEDCA.F Page 190 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: Resolution No. 4995 Date: October 14, 2013 Department: Public Works Attachments: Resolution No. 4995 Budget Impact: $0 Administrative Recommendation: City Council adopt Resolution No 4995. Background Summary: Resolution 4995 authorizes the surplus of the following equipment and vehicle: Public Works Department – Equipment Rental Division: The following equipment no longer functions and is beyond repair: l 6474A – LineBlazer 3900 2-Gun Paint Sprayer - Fixed Asset 55000 P035H The following vehicle has reached it’s service life and has been replaced and there is more value in selling the vehicle then in retaining and repairing: l P100C – Jeep Liberty VIN; 1J4GL48K24W246337 – Fixed Asset 55000P100C Innovation and Technology Department: The following equipment is obsolete and/or non-repairable: l 8 CRT monitors l 30 LCD monitors l 9 Printers l 3 Fax machines l 4 UPS Battery Backup l 2 CRT Televisions l 3 Coban Units 2 l 5 Computers (Optiplex GX620) l 10 Laptops Reviewed by Council Committees: AUBURN * MORE THAN YOU IMAGINEDRES.A Page 191 of 246 Finance, Public Works Councilmember:Partridge Staff:Dowdy Meeting Date:October 21, 2013 Item Number:RES.A AUBURN * MORE THAN YOU IMAGINEDRES.A Page 192 of 246 RESOLUTION NO. 4 9 9 5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON DECLARING CERTAIN ITEMS OF PROPERTY AS SURPLUS AND AUTHORIZING THEIR DISPOSAL WHEREAS, the City of Aubum Public Works and Information & Technology Departments have a numberof items which are no longer of use to the City; and WHEREAS, it wouid be appropriate to surplus the property and dispose of it by auction or other sale mechanism, or to dispose of it, in whole or in part, through gift to another govemmental agency or an appropriate charitable non- profit entiry, as deemed most expedient,by the Mayor. NOW, THEREFORE, THE CITY COUNCIL OF TFiE CITY OF AUBURN, WASHINGTON HEREBY RESOLVES as fotlows: Section 1. Purpose. That the property identified below is declared to be surplus, and the Mayor is authorized to dispose ofi and convey such property through appropriate sale or donation to another govemmental agency or charitable non-profd eMity. Public Works Deoartrnent EQUIPMENT RENTAL DIVISION: The following equipment no longer functions and is beyond repair: 6474A— LineBlazer 3900 2-Gun Paint Sprayer - Fixed Asset 55000 P035H Resolution No. 4995 October 16, 2013 Page 1 of 3 RES.A Page 193 of 246 Thefiollowing vehicle has reached itsse_rvice life and has been replaced and there is more value in selling the vehicle then in retaining and repairing: P100C—Jeep Liberty VIN; 1J4GL48K24W246337 — Fixed Asset 55000P100C lnnovation and Technolostv Departrnent The following equipment is obsolete and/or non-repairable: 8 CRT monitors 30 LCD monitors 9 Printers 3 Fax machines 4 UPS Battery Backup 2 CRT Televisions 3 Coban Units 25 Computers (Optiplex GX620) 10 Laptops Section 2.. Implementation. That 4he Mayor is authorized to implement such administrative procedures as may be necessary to carry ouYthe directives of this legislation. Section 3. Effective Date. That this Resolution shall take effect and be in full force upon passage and signatures hereon. Dated and Signed this day of 2013. CITY OF AUBURN PETER B. LEWIS ATTEST: MAYOR Danielle E. Daskam, City Clerk Resolution No. 4995 Octoberl6, 2013 Page 2 of 3 RES.A Page 194 of 246 APP ED T Daniel B. H ,id, C' Atto Resolution No.4995 October 16, 2013 Page 3 of 3 RES.A Page 195 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: Resolution No. 4996 Date: October 16, 2013 Department: Public Works Attachments: Resolution No. 4996 Attachment 1 Exhibit A Payback Area Map Budget Impact: $0 Administrative Recommendation: City Council adopt Resolution No. 4996. Background Summary: Resolution No. 4996 authorizes the Mayor and City Clerk to execute a Payback Agreement with SFGVI Properties, LLC. SFGVI Properties, LLC completed the facility extension (FAC12-0005) for sanitary sewer facilities to serve their property. In accordance with Auburn City Code 13.20.270 and the City of Auburn’s Comprehensive Sewer Plan, the sanitary sewer line was extended to and through their property and was designed and constructed with sufficient capacity to provide benefit to additional properties that currently do not have sanitary sewer service. The City of Auburn has established a Payback Agreement to provide reimbursement to the developer for the benefit received by the additional property owners. If approved, property owners of properties that benefit from this extension will be assessed one of the following charges if and when they receive a permit to connect to the sewer system: 1.Front Footage Charge-Properties located adjacent to the extension will be charged an amount equivalent to half the cost to install an eight-inch diameter pipe along their property frontage. 2.Area Charge-Each benefiting property, as listed in the proposed agreement, will be charged the amount specified in the agreement multiplied by the number of Residential Customer Equivalents (RCE’s, which are the equivalent of a single family residence) that they connect to the system. This charge reimburses the developer for constructing the extension through areas with no developable property frontage (steep slopes, cemetery burial areas). AUBURN * MORE THAN YOU IMAGINEDRES.B Page 196 of 246 City staff has reviewed the overall project costs and supporting documentation as well as the proposed method of allocating the costs. Staff recommends approval of the agreement. Reviewed by Council Committees: Finance, Public Works Councilmember:Wagner Staff:Dowdy Meeting Date:October 21, 2013 Item Number:RES.B AUBURN * MORE THAN YOU IMAGINEDRES.B Page 197 of 246 RESOLUTION NO. 4 9 9 6 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE MAYOR TO EXECUTE A PAYBACK AGREEMENT BETWEEN THE CITY OF AUBURN AND SFGVI FROPERTIE8, LLC FOR DEVELOPER'S SANITARY SEWER EXTENSION WHEREAS, Chapter 13.40 of the Aubum City Code (ACC) authorizes the City Engineer to develop, implement, and administer facility extension payback agreements for utility improvements, and to execute those agreements upon Council approval; and WHEREAS, SFGVI Properties, LLC has constructed the utility improvements described in the attached payback agreement, and has agreed to deed those improvements to the City; and WHEREAS, pursuant to ACC 13.40.030, the City has received and approved plans for the improvements; and WHEREAS, the City Council finds that entry into the payback agreemeM is in 4he best interest of the City; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN, HEREBY RESOLVES as follows: Section 1. The Mayor of the City of Auburn is hereby authorized to execute a Payback Agreement between the City and SFGVI Properties, LLC, for Developer's Sanitary Sewer Extension in the form substantially as the agreement ResolutiDn No. 4996 October 7,2013 Page 1 of 2 RES.B Page 198 of 246 attached hereto, marked as Attachment "1° and incorporated herein by this reference. Section 2. That the Mayor is hereby authorized to implement such administrative procedures as may be necess.ary to carry out the directives of this legislation. Section 3. That this Resolution shall take effect and be in full force upon passage and signatures hereon. Dated and Signed this day of 2013. CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam, City Clerk APP VED AS FORM:. Daniel B. Heid, City Attomey Resolution No.4996 October 7, 2013 Page 2 of 2 RES.B Page 199 of 246 _________________________________________________________________________________________________________ PAYBACK AGREEMENT DEVELOPER’S EXTENSION PAGE 1 OF 7 Return Address: City of Auburn City Clerk 25 West Main Auburn, WA 98001 Above this line reserved for recording information. PAYBACK AGREEMENT DEVELOPER'S EXTENSION Reference # (if applicable): N/A (unless previous recording #) Grantor : City of Auburn Grantee : SFGVI Properties, LLC Legal Description / STR: Sections 29-32, Township 20 North, Range 5 East Assessor’s Tax Parcel ID#: See Exhibits C & E This Agreement made and entered into this __________ day of ______________, 2013, by and between the City of Auburn, a municipal corporation of King County, Washington, hereinafter called the CITY and SFGVI Properties, LLC, whose address is 188 106th Ave NE, Suite 600, Bellevue, WA 98004 hereinafter referred to as DEVELOPER. WHEREAS, pursuant to Chapter 35.91 RCW et seq., the CITY has by Resolution No. 4996, adopted by the City Council of the CITY on the 1st day of July, 2013, approved the execution of this Payback Agreement with the DEVELOPER above and referring to facilities described herein; and RES.B Page 200 of 246 _________________________________________________________________________________________________________ PAYBACK AGREEMENT DEVELOPER’S EXTENSION PAGE 2 OF 7 WHEREAS, the above-described DEVELOPER has offered and the CITY has agreed to accept the bills of sale found as Exhibit A, attached hereto, as part of the utility systems of the CITY; NOW THEREFORE, IN CONSIDERATION OF THE CONDITIONS AND COVENANTS HEREIN, THE PARTIES AGREE AS FOLLOWS: I. DEVELOPER At the time of construction, the above-described DEVELOPER was the record OWNER of real property legally described in Exhibit A, submitted by the DEVELOPER and attached hereto. “DEVELOPER” shall include successors, heirs, and assigns. The term shall include a bankruptcy estate and a receivership as long as the City receives notice of the bankruptcy or receivership as the law requires for notice to creditors, and the DEVELOPER provides the notice required by section X of this agreement. II. FACILITIES The facilities which have been constructed by the DEVELOPER herein are as shown in the attached Exhibits 1, incorporated herein by this reference, and processed as Developer Public Facility Extension herein referenced as FAC12- 0005, the originals of which are on file at the office of the City Engineer. The facilities have been constructed in accordance with the ordinances and requirements of the CITY governing the construction specifications for facilities of such type, and have been approved by the City Engineer. III. AREA OF FACILITY SERVICE BENEFIT The properties benefited by the facilities constructed by the DEVELOPER are shown on Exhibits B, C, D-1, D-2, and E, incorporated herein by reference. Any owner of real estate in the benefit area as shown on the attached Exhibits B, C, D- 1, D-2, and E, shall pay as a condition for connecting to the facilities, an amount as identified in Section V. All property within the benefit boundary shall be subject to the connection fee as provided in this agreement as a condition of issuance of the connection permit by the CITY. IV. TERMS For a period of 20 years from the date that the City formally accepts the developer’s utility extension, any owner (latecomer) of real estate legally described in Section III, and which owner has not fully contributed their pro rata share to the RES.B Page 201 of 246 _________________________________________________________________________________________________________ PAYBACK AGREEMENT DEVELOPER’S EXTENSION PAGE 3 OF 7 original cost of the above-described facility, shall pay to the CITY the amounts shown in Exhibits C and E attached hereto. The charge herein represents the fair pro rata share of the cost of construction of said facilities payable by properties benefited. Payment of the latecomers pro rata share is a condition of issuance of the connection permit by the CITY. The CITY shall reimburse the DEVELOPER within 60 days of the date the City receives payment from a person requesting connection to the facilities. Upon the expiration of the 20-year term, any moneys collected by the CITY will not be reimbursed to the DEVELOPER. V. AMOUNT OF REIMBURSEMENT Sanitary sewer collection facilities: The DEVELOPER, his successors, heirs and assigns, agrees that the amounts which the DEVELOPER is reimbursed from the property owners as specified in Section III of this Agreement, represents a fair pro rata share reimbursement for the DEVELOPER'S construction of the facilities described in Section II of this Agreement. The specific amount of reimbursement for the parcels subject to a “front-footage charge” as shown on Exhibit B and listed in in Exhibit C, shall be as listed in Exhibit C. Reimbursement for the parcels subject to the “area charge,” as shown on Exhibit D and listed in Exhibit E, will be the number of residential customer equivalents (RCE’s) to be connected to the system under a sewer permit multiplied by $2,236.80. The total amount of reimbursement to the DEVELOPER for sanitary sewer facilities from all applicable charges shall not exceed $562,718.11 VI. NOTICE AND REVIEW Prior to passing the Resolution authorizing this agreement, the CITY, shall have mailed to the property owners of the parcels listed in Exhibits C and E, as reflected in the records of the King County Recorder’s Office, as specified in Section III, notification of the allocation of costs to be levied against the properties which are payable prior to connection to the systems. The property owner shall have the right to review the costs with the City Engineer within 21 days from the date of said notice for the purpose of requesting an adjustment in the allocation of the charge to the property. If the City Engineer, upon requested review by a notified property owner(s), does find cause for adjustment in the allocation of the charge to the benefited pro perty(s), such adjustment will be made and the DEVELOPER will be notified of the adjusted amount(s) prior to recordation. The resulting adjusted Exhibits C RES.B Page 202 of 246 _________________________________________________________________________________________________________ PAYBACK AGREEMENT DEVELOPER’S EXTENSION PAGE 4 OF 7 and E shall govern reimbursement amounts to be received by the DEVELOPER. If the adjustment results in an increase to the charge for other parcels, the notification process in this agreement shall be repeated. VII. EFFECT OF AGREEMENT The provisions of this Agreement shall not be effective as to any owner of real estate not a party hereto unless this Agreement has been recorded in the office of the County Auditor of the County in which the real estate is located prior to the time such owner receives a permit to connect to said facilities. The DEVELOPER shall provide the CITY with proof of recording. If for any reason, the CITY fails to secure a latecomer payment for Owner's fair pro rata share of the cost of the facilities, before connection to the extension, the CITY is not liable for payment to the DEVELOPER. The entire responsibility recordation and completion of this Agreement is upon the DEVELOPER, who agrees to do all and to hold the CITY harmless. VIII. OWNERSHIP OF FACILITY The DEVELOPER has constructed the facilities described in Section II of this Agreement, which facilities have been accepted by the CITY as satisfactory. The facilities have become a part of the municipal system of the CITY. All maintenance and operation costs of said facility shall be borne by the CITY. IX. UNAUTHORIZED CONNECTION Whenever any connection is made into the facilities described in Exhibit A under this Agreement which is not authorized by the CITY, the CITY shall have the absolute authority, but not the obligation, to remove or cause to be removed such unauthorized connections and all connecting lines or pipes located in the facility's right -of-way. The CITY shall incur no liability for any damage to any person or property resulting from removal of the unauthorized connection. X. CURRENT ADDRESS & TELEPHONE NUMBER The DEVELOPER shall keep a current record of his/her address and telephone number on file with the City Engineer, and shall within 30 days of any change of said address and/or telephone number, notify the City Engineer in writing. If the DEVELOPER fails to do so, the parties agree that the CITY may authorize connections resulting therefrom and not incur any liability for the non-collection and/or non-reimbursement of charges to the DEVELOPER under this Agreement. Every two years from the effective date of this agreement, shown on page one, the DEVELOPER shall notify the City Engineer of its current name, address, and telephone number. If the DEVELOPER fails to provide such information within RES.B Page 203 of 246 _________________________________________________________________________________________________________ PAYBACK AGREEMENT DEVELOPER’S EXTENSION PAGE 5 OF 7 sixty (60) days of each anniversary, the CITY may collect and retain any connection charges owed to the DEVELOPER under this contract XI. ADMINISTRATION Any inquiries regarding the administration of this agreement shall be directed to the City Engineer. XII. COVENANT RUNNING WITH THE LAND This Agreement shall be binding on the DEVELOPER, its successors, heirs and assigns and shall so be binding on the legal owners of all properties described within the benefit boundary of the area as shown in the attached Exhibits B, C, D, and E, their successors, heirs and assigns. The DEVELOPER agrees to pay all fees for recording this Agreement with the County Recorder’s Office. The DEVELOPER shall make the actual recording and provide the CITY with confirmation thereof. XIII. HOLD HARMLESS The DEVELOPER will defend, indemnify, and save the CITY and the CITY'S officials and agents harmless from all claims and costs of defense, arising out of this agreement, including but not limited to attorney's fees, expert witness fees, and the cost of the services of engineering and other personnel whose time is reasonably devoted to the preparation and attendance of depositions, hearings, arbitration proceedings, settlement conferences and trials growing out of the demands and/or actions of property owners incurred in the performance or completion of this Agreement. XIV. CONSTITUTIONALITY OR INVALIDITY If any section, subsection, clause or phrase of this Agreement is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Agreement, as it being hereby expressly declared that this Agreement and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, adopted and approved and ratified irrespective of the fact that any one or more section, subsection, sentence, clause or phrase be declared invalid or unconstitutional. CITY OF AUBURN Peter B. Lewis, Mayor RES.B Page 204 of 246 _________________________________________________________________________________________________________ PAYBACK AGREEMENT DEVELOPER’S EXTENSION PAGE 6 OF 7 ATTEST: APPROVED AS TO FORM: Danielle Daskam, City Clerk Daniel B. Heid, City Attorney DEVELOPER: Signature Signature TITLE: TITLE: RES.B Page 205 of 246 _________________________________________________________________________________________________________ PAYBACK AGREEMENT DEVELOPER’S EXTENSION PAGE 7 OF 7 STATE OF WASHINGTON ) )ss. County of King ) I certify that I know or have satisfactory evidence that Peter B. Lewis and Danielle E. Daskam were the persons who appeared before me, and said persons acknowledged that they signed this instrument, on oath stated that they were authorized to execute the instrument and acknowledged it as the MAYOR and CITY CLERK of the CITY OF AUBURN to be the free and voluntary act of such parties for the uses and purposes mentioned in this instrument. Dated _______________________ Notary Public in and for the State of Washington My appointment expires STATE OF WASHINGTON) ) ss COUNTY OF KING ) I certify I have know or have satisfactory evidence that is/are the person(s) who appeared before me, and said person(s) acknowledged that he/she/they signed this instrument on oath stated that he/she/they was/were authorized to execute the instrument and acknowledge as the of a limited liability company, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated ___________________ Notary Public in and for the State of Washington Residing at My appointment expires RES.B Page 206 of 246 RE S . B Pa g e 2 0 7 o f 2 4 6 RE S . B Pa g e 2 0 8 o f 2 4 6 RE S . B Pa g e 2 0 9 o f 2 4 6 RE S . B Pa g e 2 1 0 o f 2 4 6 RE S . B Pa g e 2 1 1 o f 2 4 6 RE S . B Pa g e 2 1 2 o f 2 4 6 RE S . B Pa g e 2 1 3 o f 2 4 6 RE S . B Pa g e 2 1 4 o f 2 4 6 Stipp's Meadow Sewer Payback Area Printed Date: 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. Map Created by City of Auburn eGIS 9/25/2013 RES.B Page 215 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: Resolution No. 4997 Date: October 15, 2013 Department: Finance Attachments: Resolution No. 4997 Agreement Budget Impact: $0 Administrative Recommendation: City Council adopt Resolution No. 4997. Background Summary: The Washington State Department of Ecology (Ecology) requests to enter into an interlocal agreement with the City of Auburn for the 2013-2015 Coordinated Prevention Grant Program. Ecology has appropriated $108,869.00 for the City to promote waste reduction and recycling. The remaining 25% match of $36,289.67 will come from a King County Waste Reduction and Recycling Grant. The City of Auburn Solid Waste Division will use the grant funds for the following programs: 1. Residential Recycling: Staff will promote waste reduction and recycling to residents through a newsletter, presentations at community events, and a community yard sale. Special emphasis will be placed on reaching non-English speaking residents and mobile home parks. 2. School Education and Outreach: Staff and a consultant will continue the School Recycling and Waste Prevention Campaign directed at Auburn School District students. Reviewed by Council Committees: Finance, Municipal Services Councilmember:Peloza Staff:Coleman Meeting Date:October 21, 2013 Item Number:RES.C AUBURN * MORE THAN YOU IMAGINEDRES.C Page 216 of 246 RESOLUTION NO. 4 9 9 7 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AUTHORIZING THE ACCEPTANCE OF GRANT FUNDS IN T.HE AMOUNT OF ONE HUNDRED EIGHT THOUSAND fIGHT HUNDRED SIXTY-NINE DOLLARS ($108,869.00), AND AUTHORIZING THE MAYOR TO EXECUTE AN INTERLOCAL AGREEMENT BETWEEN THE DEPARTMENT OF ECOLOGY AND THE CITY OF AUBURN TO ACCEPT SAID FUNDS FOR IMPLEMENTATION OF THE2013-2015 COORDINATED PREVENTION GRANT PROGRAM WHEREAS, King County and the City of Auburn have adopted the King Courriy Solid Waste Management Plan, which indudes recycling and waste reduction goals; and WHEREAS, in order to help meet these goals, the Department of Ecology with King County Solid Waste Division has established a waste reduction and recycling grant program forthe suburban cities; and WHEREAS, this program provides funding to further the development of loca waste reducfiort and recycling for Auburn businesses and residents. THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, IN A REGULAR MEETWG DULYASSEMBLED, HEREWITH RESOLVES AS>FOLLOWS: Section 7. The City hereby approves acceptance of the grant in the amount of ONE HUNDRED EIGHT THOUSAND EIGHT HUNDRED SIXTY-NINE DOLLARS 108,869.00), which constitutes reimbursement of funds for implementing the 2013- 2015 Coordinated Prevention Grant Program. Resolution No. 4997 Octoberl7, 2013 Page 1 of 2 RES.C Page 217 of 246 Section 2. The Mayor of the City of Auburn is authorized to execute an Interlocal Agreeme t with the Department of Ecology for the reimbursement of said funds, a copy of which Agreement is attached hereto, designated GranY Number G1400114 and is incorporated by reference herein. The Mayor is also authorized to facilitate such other action as is called for to appropriate such funds in accordance with Chapter 35A.33 of the Revised Code of Washington. Section 3. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out directions of the legislation. Section 4. This Resolution shall be in full force and effect upon passage and signatures hereon. Dated and Signed this day of 2013. CITY OF AUBURN PETER B. LEWIS MAYOR ATTEST: Danielle E. Daskam, City Clerk APP OVED S TO FORM: i aniel B. Heid, City Attorney Resolution No. 4997 October 17, 2013 Page 2 of 2 RES.C Page 218 of 246 COORDINATED PREVENTION GRANT (CPG) AGREEMENT BETWEEN THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY AND THE CITY OF AUBURN Grant No. G1400114 RES.C Page 219 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 2 of 19 This is a binding agreement entered into by and between the State of Washington Department of Ecology, hereinafter referred to as the “DEPARTMENT” or as “ECOLOGY”, and the City of Auburn, hereinafter referred to as the RECIPIENT, to carry out the activities described herein. JURISDICTION: MAILING ADDRESS: CITY, STATE, ZIP: City of Auburn 25 West Main Street Auburn WA 98001-4998 RECIPIENT GRANT COORDINATOR: TELEPHONE: E-MAIL: Joan Nelson 253-931-5103 JeNelson@auburnwa.gov RECIPIENT BILLING/INVOICE COORDINATOR: TELEPHONE: E-MAIL: Consuelo Rogel 253-804-5023 crogel@auburnwa.gov ECOLOGY: TELEPHONE: E-MAIL: Diana Wadley 425-649-7056 Diana.wadley@ecy.wa.gov FUNDING SOURCE MAXIMUM ELIGIBLE COST STATE GRANT SHARE LOCAL SHARE STATE MAXIMUM GRANT PERCENT FEDERAL TAX IDENTIFICATION NO. Local Toxics Control Account $145,158.67 $108,869.00 $36,289.67 75 % 91-6001228 EFFECTIVE DATE OF THE AGREEMENT: 07-01-2013 EXPIRATION DATE OF THE AGREEMENT: 06-30-2015 RES.C Page 220 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 3 of 19 PART 1: SCOPE OF WORK The task(s) set forth below summarize the RECIPIENT’S activities to be performed under this agreement. Costs are limited to those approved by ECOLOGY as outlined in the current scope of work and budget. The RECIPIENT must complete all deliverables by the expiration date of this agreement, including delivery of purchases, unless otherwise stated in the scope of work or approved by ECOLOGY in writing. Note: The term “task” as used in this agreement is interchangeable with the term “project” as used on the online Solid Waste Information Clearinghouse and “element” as used on payment request forms. The “Maximum Eligible Cost” is the maximum amount of eligible costs incurred by a RECIPIENT that ECOLOGY can reimburse at a rate of 75 percent under this grant. RECIPIENT shall identify the work plan and activities by “Quarter.” A quarter is defined by calendar year and begins with the first three months of the grant period. The RECIPIENT may negotiate changes to the work plan with the ECOLOGY Financial/Project Manager. ECOLOGY shall document mutually agreed changes to the plan in writing. Expenses relating to the collection and recycling of mercury containing lights shall be eligible for CPG reimbursement until such time that the Mercury Light Recycling program is fully implemented or the grant agreement expires, whichever is the earliest date. CATEGORY: Waste Reduction and Recycling 1. TASK TITLE: Residential Education and Outreach Maximum Eligible Task Cost: $92,980.67 Task Description: The RECIPIENT will use different forms of media and promotional items throughout the grant period to promote waste reduction and recycling programs to residents. Efforts may include, but are not limited to: producing and mailing a newsletter to all single-family residents that includes waste prevention and recycling information, distributing posters and flyers, releasing social media messages, and hiring a consultant to give waste reduction and recycling presentations at various community events. A special emphasis will be placed on reaching non-English speaking residents (primarily Hispanic/Latino) and mobile home parks. To that end, a partnership will be formed with the City's Community Services Division to enhance cultural diversity outreach efforts, and recycle cart checks for contamination in mobile home parks will occur both pre- and post- outreach. Promotion specifically targeted to increasing the volume of offsite-composting of organics is not eligible during this grant cycle. However, materials or programs addressing contamination in food and yard waste carts is eligible. The RECIPIENT is advised to contact its Ecology Financial/Project Manager for prior approval of promotional giveaway items. See page 49 of the 2013-2015 CPG Guidelines for further information. RES.C Page 221 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 4 of 19 Target Audience: Residents within the City of Auburn (single-family, mobile-home, and non-English (primarily Spanish-speaking)). Goal Statement: The goal of this task is to increase knowledge and practice of waste reduction and recycling among City of Auburn residents by developing new programs and bringing awareness to existing programs. Outcome Statement: The RECIPIENT will increase the annual average residential commingled recycling diversion rate in its Waste Management and Republic Services areas from 21% to 28% and participation rate from 90% to 95%. The RECIPIENT also hopes to see a reduction of contamination in mobile home recycle carts from the current 38% (mostly odd plastics) to less than 10%. Estimated outcomes produced with available budget: Recycling/Reuse: 5,060 tons Residential Contacts: 20,586 households via newsletter mailings Residential Participants: 5,500 residents via outreach events Work Plan, Deliverables and Timeline: GRANT- YEAR 1 GRANT- YEAR 2 Jul- Sep Jul- Sep Write Service Agreement & hire consultant. On-going outreach. Oct- Dec Oct- Dec Plan Outreach Program and printed materials; Evaluate progress of Program Plan & write Mid-year Summary for 2013. On-going outreach; Evaluate Program &write Mid-year Summary for 2014. Jan-Mar Jan-Mar Print and mail outreach pieces. Schedule community events. Print & mail outreach pieces. Schedule community events. Apr -Jun Apr -Jun On-going outreach. On-going outreach; Evaluate & write Final Summary report 2013-2014. RES.C Page 222 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 5 of 19 Method of Evaluation: The RECIPIENT will evaluate this task by: using the tonnage reports from the solid waste haulers, tracking the number of participants or attendees at events, tracking the number of materials distributed at presentations and events, and via pre-post contamination cart checks. 2. TASK TITLE: Community Yard Sale Maximum Eligible Task Cost: $ 20,938.00 Task Description: The RECIPIENT will promote waste reduction, reuse, and recycling by sponsoring a three-day city-wide yard sale for all single-family residents. Activities include promotion of the event and distribution of free “Yard Sale Tool Kits” to registered participants. The annual Residential Bulky Item Collection, which preceeds the Yard Sale, demonstrates the need for a re-use program. Residents are allowed to put appliances at the curbside (for recycling) and large bulky items (for disposal) - many items placed out for collection are reuseable. Educational material distributed to residents in a newsletter provides alternative recycle and reuse locations for these items. Target Audience: Residential households. Goal Statement: The goal of this task is to encourage residents to reduce their waste by reusing items and recycling appliances and other items accepted in the local markets. Outcome Statement: The RECIPIENT will have at least 250 households participate in the community yard sale. The sale will divert an estimated 6.25 tons of reusable items (50 lbs. per household) from the landfill. Work Plan, Deliverables and Timeline: GRANT- YEAR 1 GRANT- YEAR 2 Jul- Sep Jul- Sep No activity. Write Final Summary of event. Oct- Dec Oct- Dec No activity. No activity. Jan-Mar Jan-Mar Create program; start advertising; create & mail outreach piece Create program; start advertising; create & mail outreach piece Apr -Jun Apr -Jun RES.C Page 223 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 6 of 19 Continue outreach & registration (April); create sale ads, flyer & map (May); Event is first weekend in June. Collect surveys from those who participanted via mail-in postcard or online survey(June). Continue outreach & registration (April); create sale ads, flyer & map (May); Event is first weekend in June. Collect surveys from those who participanted via mail-in postcard or online survey(June). Write Final Summary of Event. Method of Evaluation: The RECIPIENT will record the number of postcards mailed, number registered participants, and number of Yard Sale Kits distributed. A survey will be conducted to determine the number of items sold or given away, from which the tonnage diverted will be estimated. 3. TASK TITLE: School Education and Outreach Maximum Eligible Task Cost: $31,240.00 Task Description: The RECIPIENT, in conjunction with a consultant, will continue its school recycling and waste prevention campaign directed at the Auburn School District (ASD) students. RECIPIENT staff and a consultant will coordinate with the Auburn School District's Resource Conservation Manager (ASD RCM) to conduct school waste audits, recycle program tune-ups, staff trainings, reduction and recycling classroom presentations, and to promote King County Green School Programs and Washington Green Schools. Waste reduction and recycling education and outreach will be offered through multiple methods which may include, but are not limited to: classroom presentations, on-site visits and training, informational hand-outs, and promotional items. Note: promotional items (giveaways) must have Ecology Financial/Project Manager approval before purchase. (See page 49 of the 2013-2015 CPG Guidelines.) Promotion specifically targeted to increasing the volume of offsite-composting of organics is not eligible during this grant cycle. However, materials or programs addressing contamination in food and yard waste carts is eligible. Target Audience: Students and staff at all City of Auburn elementary, middle, and high schools. In particular, all 3rd grade, 7th/8th grade, and high school students. Goal Statement: The goal of this task is to increase waste reduction and recycling awareness among Auburn's elementary and middle school students, resulting in more positive waste management behaviors both at home and school. Outcome Statement: Over the 24-month grant period, the RECIPIENT will give 50 elementary classroom presentations, 50 eighth grade middle school (science) classroom presentations and 4 high-school lunchtime events, as well as promote other local environmental programs and presentations. A goal is to increase the total recycling for all schools by 8% (from 1,300 tons to 1,404 tons). Recycling/Reuse: 104 tons increase RES.C Page 224 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 7 of 19 Business Participants: (# of schools): 19 schools Residential Participants: 1,500 elementary school students, 3,000 middle and high school students. Work Plan, Deliverables and Timeline: GRANT- YEAR 1 GRANT- YEAR 2 Jul- Sep Jul- Sep Update ASD student count database & recycling programs; Write service contract & hire consultant; Print student worksheets & surveys; Meet w/ASD RCM & Consultant to plan program & update presentations; Promote programs to principals & teachers. Update ASD student count database & recycling programs; Write service contract & hire consultant; Print student worksheets & surveys; Meet w/ASD RCM & Consultant to plan program & update present.; Promote programs to principals & teachers. Oct- Dec Oct- Dec Continue to promote & deliver recycling & waste reduction information and presentations; Evaluate & write Mid-year Summary for 2013. Continue to promote & deliver recycling & waste reduction information and presentations; Evaluate & write Mid-year Summary for 2014. Jan-Mar Jan-Mar Promote & deliver recycling information, classroom presentations and program tune- ups. Promote & deliver recycling information, classroom presentations and program tune-ups. Apr -Jun Apr -Jun Promote & deliver recycling information, classroom presentations and program tune- ups; Evaluate & write Final Summary for 2013-2014. Promote & deliver recycling information, classroom presentations and program tune-ups; Evaluate & write Final Summary for 2013- 2015. Method of Evaluation: The RECIPIENT will evaluate this task by the number of students reached through classroom presentations and the number of recycling presentation packets distributed. The RECIPIENT will survey the students before and after the presentations to determine the effectiveness of the presentations. The RECIPIENT will work with the ASD Resource Conservation Manager to track the tons recycled at each school. RES.C Page 225 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 8 of 19 PART 2: BUDGET Budget Information by CATEGORY/TASK Maximum Eligible Cost State Grant Share CATEGORY: Waste Reduction and Recycling $ 145,158.67 $ 108,869.00 1. Residential Education and Outreach $ 92,980.67 $ 69,735.50 2. Community Yard Sale $ 20,938.00 $ 15,703.50 3. School Education and Outreach $ 31,240.00 $ 23,430.00 TOTAL GRANT BUDGET TOTAL MAXIMUM ELIGIBLE COST $ 145,158.67 STATE GRANT SHARE (75%) $ 108,869.00 LOCAL CASH MATCH (25%) $ 36,289.67 INTERLOCAL COSTS (0 %) $ - 0 - PART 3: BUDGET CONDITIONS A. ECOLOGY requires the RECIPIENT to provide a match of 25 percent of the maximum eligible cost with cash or interlocal costs. Interlocal costs are the only type of in-kind contributions the RECIPIENT may use as match. B. If parties are contributing to the local share of task costs (match) through interlocal-in kind contributions, the RECIPIENT shall negotiate a memorandum of understanding or other written agreement confirming the contribution between the parties. These agreements shall specify the exact work to be accomplished and be signed by all parties contributing to the local match of this task. Copies of these agreements shall be made part of the RECIPIENT’S grant file and submitted to ECOLOGY. C. Overhead is eligible at a rate up to 25 percent of staff salaries and benefits for actual time spent on tasks outlined in this agreement. Salaries and benefits to administer the grant agreement are eligible (excluding time spent to write a CPG grant application). D. RECIPIENT must submit a written request to ECOLOGY to amend budgets between grant tasks, to modify a scope of work, or for a budget increase or decrease. To increase or decrease the agreement’s total maximum eligible cost or change the scope of work for any tasks as outlined in this grant agreement, ECOLOGY requires a formal amendment. RES.C Page 226 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 9 of 19 E. RECIPIENT must provide ECOLOGY with an updated Spending Plan when requested by ECOLOGY. F. Any work performed or costs incurred prior to the effective date or after the expiration date of this agreement will be at the sole expense of the RECIPIENT. PART 4: SPECIAL TERMS AND CONDITIONS A. BILLING 1. Unless otherwise approved in writing by ECOLOGY, the RECIPIENT shall submit a payment request to ECOLOGY at least quarterly (by calendar year), but no more often than once per month. 2. RECIPIENT must submit payment requests on approved State Invoice Voucher forms: A19-1A, B1/B2, C1/C2. Until there is a change in agency policy, the recipient must submit an A19-1A with an original signature in blue ink, signed by an authorized person. The B2 and C2 forms are acceptable in electronic format. The RECIPIENT must also include all backup documentation to support costs itemized on Form C1/C2. The budget is organized by task and therefore, the RECIPIENT shall itemize costs by task on Form C1/C2 and Form B1/B2. Forms B1 and C1 are used only when interlocal costs are used towards the 25% match. 3. Any income directly generated as a result of the activities funded by this grant shall be reported as a credit against the expenses of that activity, as defined by ECOLOGY’S Administrative Requirements for Recipients of Ecology Grants and Loans, Ecology Publication #91-18. 4. RECIPIENT shall submit supporting documents with each payment request. This includes copies of invoices, purchase receipts, payroll records, time and attendance records, grant award documents, and any document deemed relevant by ECOLOGY to establish the approval of an expense listed on Form C1/C2. Documentation shall be clear and legible and organized by task in the order in which it is itemized on Form C1/C2. 5. RECIPIENT shall maintain grant related material and supporting documents including invoice vouchers sent to ECOLOGY in a common file. The RECIPIENT shall keep all supporting documents for audit purposes for at least three years from the date the agreement is closed by ECOLOGY. . B. REPORTING 1. Progress reports and Final Performance Analyses must be submitted through the web-based database, the Solid Waste Information Clearinghouse. The RECIPIENT must submit a progress report with each payment request. If a quarterly payment request is not submitted, the RECIPIENT is still required to submit a progress report for that quarter. These reports shall include information that supports incurred costs identified on the corresponding C1 or C2 of the payment request, and provide a brief update in support of the outcomes and or method of evaluation in the grant agreement. RES.C Page 227 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 10 of 19 a) A Final Performance Analysis (FPA) report must be submitted for each task in a Planning and Implementation grant before ECOLOGY can process a final payment request. C. COMPENSATION Payment to RECIPIENT will be issued through Washington State’s Department of Enterprise Services (DES). DES maintains a central vendor file for Washington state agency use to process vendor payments. This allows vendors to receive payments from all participating state agencies. RECIPIENTS must register as a state-wide vendor (SWV) by submitting a state-wide vendor registration form and an IRS W-9 form http://www.ofm.wa.gov/isd/vendors/payee_registration.doc to DES. If you have questions about the vendor registration process you can contact DES at the Payee Help Desk at (360) 664-7779 or email to payeehelpdesk@ofm.wa.gov. D. TRAINING RECIPIENT is expected to participate in any ECOLOGY recommended trainings related to managing a CPG agreement when feasible unless exempted by ECOLOGY in writing. E. PROCUREMENT AND CONTRACTS 1. RECIPIENT must follow local procurement procedures or current state procurement procedures, whichever is stricter. A RECIPIENT with no formal procurement procedures must certify that they have complied with the "Standards for Competitive Solicitation" found in Part V of the Administrative Requirements for Recipients of Ecology Grants and Loans – Yellow Book, Ecology Publication #91-18. 2. Upon issuance, the RECIPIENT may submit a copy of all requests for qualifications (RFQs), requests for proposals (RFPs), and bid documents relating to this grant agreement to ECOLOGY’S Financial/Project Manager to be placed in the file. 3. Prior to contract execution, the RECIPIENT may submit all draft documents and a copy of the draft proposed contract to ECOLOGY’S Financial/Project Manager for review. The RECIPIENT assumes any risks associated with the failure to consult with the regional Financial/Project Manager. Following the contract execution, the RECIPIENT shall submit a copy of the final contract to ECOLOGY’s assigned Financial/Project Manager to be placed in the file. 4. Unless a specific purchase of equipment or real property is already written into a task’s scope of work, the RECIPIENT must submit a written request to ECOLOGY to purchase any equipment or real property (Property) with a single unit purchase price of $5,000 or more. The request must include the justification for the purchase of the property, the total cost, the intended use, and the anticipated useful life of the property. The request must be approved in writing by ECOLOGY prior to the purchase. F. USE OF EXISTING CONTRACTS RECIPIENT may use existing contracts that conform to local adopted procurement procedures and applicable state laws. The RECIPIENT shall notify ECOLOGY if intending to use contracts entered into prior to the execution of the grant agreement for performance of grant-funded activities. The RECIPIENT shall submit a copy of the contract to its assigned ECOLOGY Financial/Project Manager to be placed in the file. The grant eligibility of products or services RES.C Page 228 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 11 of 19 secured by the RECIPIENT under existing contracts used to perform the scope of work in this agreement must be deemed allowable and reasonable by ECOLOGY prior to cost reimbursement. G. PROPERTY AND EQUIPMENT MANAGEMENT AND DISPOSITION For equipment or property purchased with a cost of at least $5,000 per unit or functional system, the RECIPIENT must utilize an inventory control system, including physical inventory to document the ongoing use, a description of the item (including serial or vehicle identification number (VIN when possible) and location. The information shall be submitted to ECOLOGY upon request until final disposition is made. The RECIPIENT shall investigate, document, and report to ECOLOGY any loss, theft or damage upon discovery of such conditions. The RECIPIENT will follow manufacturer recommended maintenance procedures to keep the property in good operating condition. RECIPIENT shall submit a written request to the ECOLOGY for any intent to change the use of the equipment as outlined in this grant agreement, including uses past the expiration date of this agreement. Disposition of the equipment shall be determined by ECOLOGY and documented in writing. A copy of the determination will be provided to the RECIPIENT upon ECOLOGY’s closure of the grant agreement unless already identified in the task’s scope of work. o If the equipment is necessary for the continued operation of the project or other projects administered through ECOLOGY, the Financial/Project Manager may instruct the recipient to retain the equipment with no further compensation to ECOLOGY. o If the project has no further significant use for the equipment, the Financial/Project Manager may instruct the recipient to retain or sell the equipment and pay ECOLOGY an amount equal to ECOLOGY’s share of the current fair market value, sale proceeds or other price agreed upon by the Financial/Project Manager. o The Financial/Project Manager may instruct the recipient to transfer title to ECOLOGY or to a third party named by ECOLOGY who is eligible under existing statutes. H. ALL WRITINGS CONTAINED HEREIN This agreement, including the appended “General Terms and Conditions,” current cycle Program Guidelines – Coordinated Prevention Grants found at https://fortress.wa.gov/ecy/publications/summarypages/1107008.html, and ECOLOGY’S Administrative Requirements for Recipients of Ecology Grants and Loans, Ecology Publication #91-18, contain the entire understanding between the parties, and there are no other understandings or representations except as those set forth or incorporated by reference herein. No subsequent modification(s) or amendment(s) of this grant agreement shall be of any force or effect unless in writing, signed by authorized representatives of the RECIPIENT and ECOLOGY and made part of this agreement. I. ARCHEOLOGICAL AND CULTURAL RESOURCES RECIPIENT shall take reasonable action to avoid, minimize, or mitigate adverse effects to the archeological or cultural resources. RECIPIENT shall immediately cease work and notify ECOLOGY if any archeological or cultural resources are found while conducting work under this agreement. In the event that historical or cultural artifacts are discovered at the project site, the RES.C Page 229 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 12 of 19 RECIPIENT shall also notify the state historic preservation officer at the Department of Archaeology and Historic Preservation at (360) 586-3065. Applicability of the National Historic Preservation Act (NHPA) may require the RECIPIENT to obtain a permit pursuant to Chapter 27.53 RCW prior to conducting on-site activity with the potential to impact historic properties (such as invasive sampling, dredging, or cleanup actions). J. ENVIRONMENTALLY PREFERRABLE PURCHASING In a joint effort to save costs, produce energy savings and prevent waste, the RECIPIENT agree s to use both sides of paper sheets for copying and printing when feasible. The RECIPIENT also agrees to purchase paper products with a high level of post consumer recycled content when they are comparable in quality, available, and cost effective. IN WITNESS WHEREOF, the parties sign this Agreement: STATE OF WASHINGTON CITY OF AUBURN DEPARTMENT OF ECOLOGY Laurie G. Davies Date Signatory Date Program Manager Waste 2 Resources Program Printed Name and Title of Signatory APPROVED AS TO FORM ONLY Assistant Attorney General RES.C Page 230 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 13 of 19 APPENDIX A PART 5: GENERAL TERMS AND CONDITIONS Pertaining to Grant and Loan Agreements of the Department of Ecology, SS-010 Rev. 04/04 A. RECIPIENT PERFORMANCE All activities for which grant/loan funds are to be used shall be accomplished by the RECIPIENT and RECIPIENT's employees. The RECIPIENT shall only use contractor/consultant assistance if that has been included in the agreement’s final scope of work and budget. B. SUBGRANTEE/CONTRACTOR COMPLIANCE The RECIPIENT must ensure that all subgrantees and contractors comply with the terms and conditions of this agreement. C. THIRD PARTY BENEFICIARY The RECIPIENT shall ensure that in all subcontracts entered into by the RECIPIENT pursuant to this agreement, the state of Washington is named as an express third-party beneficiary of such subcontracts with full rights as such. D. CONTRACTING FOR SERVICES (BIDDING) Contracts for construction, purchase of equipment and professional architectural and engineering services shall be awarded through a competitive process, if required by State law. RECIPIENT shall retain copies of all bids received and contracts awarded, for inspection and use by the DEPARTMENT. E. ASSIGNMENTS No right or claim of the RECIPIENT arising under this agreement shall be transferred or assigned by the RECIPIENT. F. COMPLIANCE WITH ALL LAWS 1. RECIPIENT shall comply fully with all applicable Federal, State and local laws, orders, regulations and permits. Prior to commencement of any construction, the RECIPIENT shall secure the necessary approvals and permits required by authorities having jurisdiction over the project, provide assurance to the DEPARTMENT that all approvals and permits have been secured, and make copies available to the DEPARTMENT upon request. 2. Discrimination. The DEPARTMENT and the RECIPIENT agree to be bound by all Federal and State laws, regulations, and policies against discrimination. The RECIPIENT further agrees to affirmatively support the program of the Office of Minority and Women's Business Enterprises to the maximum extent possible. If the agreement is federally-funded, the RECIPIENT shall report to the DEPARTMENT the percent of grant/loan funds available to women or minority owned businesses. RES.C Page 231 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 14 of 19 3. Wages and Job Safety. The RECIPIENT agrees to comply with all applicable laws, regulations, and policies of the United States and the State of Washington which affect wages and job safety. 4. Industrial Insurance. The RECIPIENT certifies full compliance with all applicable state industrial insurance requirements. If the RECIPIENT fails to comply with such laws, the DEPARTMENT shall have the right to immediately terminate this agreement for cause as provided in Section K.1, herein. G. KICKBACKS The RECIPIENT is prohibited from inducing by any means any person employed or otherwise involved in this project to give up any part of the compensation to which he/she is otherwise entitled or, receive any fee, commission or gift in return for award of a subcontract hereunder. H. AUDITS AND INSPECTIONS 1. RECIPIENT shall maintain complete program and financial records relating to this agreement. Such records shall clearly indicate total receipts and expenditures by fund source and task or object. All grant/loan records shall be kept in a manner which provides an audit trail for all expenditures. All records shall be kept in a common file to facilitate audits and inspections. Engineering documentation and field inspection reports of all construction work accomplished under this agreement shall be maintained by the RECIPIENT. 2. All grant/loan records shall be open for audit or inspection by the DEPARTMENT or by any duly authorized audit representative of the State of Washington for a period of at least three years after the final grant payment/loan repayment or any dispute resolution hereunder. If any such audits identify discrepancies in the financial records, the RECIPIENT shall provide clarification and/or make adjustments accordingly. 3. All work performed under this agreement and any equipment purchased, shall be made available to the DEPARTMENT and to any authorized state, federal or local representative for inspection at any time during the course of this agreement and for at least three years following grant/loan termination or dispute resolution hereunder. 4. RECIPIENT shall meet the provisions in OMB Circular A-133 (Audits of States, Local Governments & Non Profit Organizations), including the compliance Supplement to OMB Circular A-133, if the RECIPIENT expends $500,000 or more in a year in Federal funds. The $500,000 threshold for each year is a cumulative total of all federal funding from all sources. The RECIPIENT must forward a copy of the audit along with the RECIPIENT’S response and the final corrective action plan to the DEPARTMENT within ninety (90) days of the date of the audit report. I. PERFORMANCE REPORTING RECIPIENT shall submit progress reports to the DEPARTMENT with each payment request or such other schedule as set forth in the Special Conditions. The RECIPIENT shall also report in writing to the DEPARTMENT any problems, delays or adverse conditions which will materially affect their ability to meet project objectives or time schedules. This disclosure shall be accompanied by a RES.C Page 232 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 15 of 19 statement of the action taken or proposed and any assistance needed from the DEPARTMENT to resolve the situation. Payments may be withheld if required progress reports are not submitted. Quarterly reports shall cover the periods January 1 through March 31, April 1 through June 30, July 1 through September 30, and October 1 through December 31. Reports shall be due within thirty (30) days following the end of the quarter being reported. J. COMPENSATION 1. Method of compensation. Payment shall normally be made on a reimbursable basis as specified in the grant agreement and no more often than once per month. Each request for payment will be submitted by the RECIPIENT on State voucher request forms provided by the DEPARTMENT along with documentation of the expenses. Payments shall be made for each task/phase of the project, or portion thereof, as set out in the Scope of Work when completed by the RECIPIENT and approved as satisfactory by the Project Officer. The payment request form and supportive documents must itemize all allowable costs by major elements as described in the Scope of Work. Instructions for submitting the payment requests are found in "Administrative Requirements for Recipients of Ecology Grants and Loans", part IV, published by the DEPARTMENT. A copy of this document shall be furnished to the RECIPIENT. When payment requests are approved by the DEPARTMENT, payments will be made to the mutually agreed upon designee. Payment requests shall be submitted to the DEPARTMENT and directed to the Project Officer assigned to administer this agreement. 2. Period of Compensation. Payments shall only be made for actions of the RECIPIENT pursuant to the grant/loan agreement and performed after the effective date and prior to the expiration date of this agreement, unless those dates are specifically modified in writing as provided herein. 3. Final Request(s) for Payment. The RECIPIENT should submit final requests for compensation within forty-five (45) days after the expiration date of this agreement and within fifteen (15) days after the end of a fiscal biennium. Failure to comply may result in delayed reimbursement. 4. Performance Guarantee. The DEPARTMENT may withhold an amount not to exceed ten percent (10%) of each reimbursement payment as security for the RECIPIENT's performance. Monies withheld by the DEPARTMENT may be paid to the RECIPIENT when the project(s) described herein, or a portion thereof, have been completed if, in the DEPARTMENT's sole discretion, such payment is reasonable and approved according to this agreement and, as appropriate, upon completion of an audit as specified under section J.5 herein. 5. Unauthorized Expenditures. All payments to the RECIPIENT may be subject to final audit by the DEPARTMENT and any unauthorized expenditure(s) charged to this grant/loan shall be refunded to the DEPARTMENT by the RECIPIENT. 6. Mileage and Per Diem. If mileage and per diem are paid to the employees of the RECIPIENT or other public entities, it shall not exceed the amount allowed under state law for state employees. 7. Overhead Costs. No reimbursement for overhead costs shall be allowed unless provided for in the Scope of Work hereunder. RES.C Page 233 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 16 of 19 K. TERMINATION 1. For Cause. The obligation of the DEPARTMENT to the RECIPIENT is contingent upon satisfactory performance by the RECIPIENT of all of its obligations under this agreement. In the event the RECIPIENT unjustifiably fails, in the opinion of the DEPARTMENT, to perform any obligation required of it by this agreement, the DEPARTMENT may refuse to pay any further funds thereunder and/or terminate this agreement by giving written notice of termination. A written notice of termination shall be given at least five working days prior to the effective date of termination. In that event, all finished or unfinished documents, data studies, surveys, drawings, maps, models, photographs, and reports or other materials prepared by the RECIPIENT under this agreement, at the option of the DEPARTMENT, shall become Department property and the RECIPIENT shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials. Despite the above, the RECIPIENT shall not be relieved of any liability to the DEPARTMENT for damages sustained by the DEPARTMENT and/or the State of Washington because of any breach of agreement by the RECIPIENT. The DEPARTMENT may withhold payments for the purpose of setoff until such time as the exact amount of damages due the DEPARTMENT from the RECIPIENT is determined. 2. Insufficient Funds. The obligation of the DEPARTMENT to make payments is contingent on the availability of state and federal funds through legislative appropriation and state allotment. When this agreement crosses over state fiscal years the obligation of the DEPARTMENT is contingent upon the appropriation of funds during the next fiscal year. The failure to appropriate or allot such funds shall be good cause to terminate this agreement as provided in paragraph K.1 above. When this agreement crosses the RECIPIENT's fiscal year, the obligation of the RECIPIENT to continue or complete the project described herein shall be contingent upon appropriation of funds by the RECIPIENT's governing body; provided, however, that nothing contained herein shall preclude the DEPARTMENT from demanding repayment of ALL funds paid to the RECIPIENT in accordance with Section O herein. 3. Failure to Commence Work. In the event the RECIPIENT fails to commence work on the project funded herein within four months after the effective date of this agreement, or by any date mutually agreed upon in writing for commencement of work, the DEPARTMENT reserves the right to terminate this agreement. L. WAIVER Waiver of any RECIPIENT default is not a waiver of any subsequent default. Waiver of a breach of any provision of this agreement is not a waiver of any subsequent breach and will not be construed as a modification of the terms of this agreement unless stated as such in writing by the authorized representative of the DEPARTMENT. M. PROPERTY RIGHTS 1. Copyrights and Patents. When the RECIPIENT creates any copyrightable materials or invents any patentable property, the RECIPIENT may copyright or patent the same but the DEPARTMENT retains a royalty-free, nonexclusive and irrevocable license to reproduce, publish, recover or otherwise use the material(s) or property and to authorize others to use the same for federal, state or local government purposes. RES.C Page 234 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 17 of 19 Where federal funding is involved, the federal government may have a proprietary interest in patent rights to any inventions that are developed by the RECIPIENT as provided in 35 U.S.C. 200-212. 2. Publications. When the RECIPIENT or persons employed by the RECIPIENT use or publish information of the DEPARTMENT; present papers, lectures, or seminars involving information supplied by the DEPARTMENT; use logos, reports, maps or other data, in printed reports, signs, brochures, pamphlets, etc., appropriate credit shall be given to the DEPARTMENT. 3. Tangible Property Rights. The DEPARTMENT's current edition of "Administrative Requirements for Recipients of Ecology Grants and Loans", Part V, shall control the use and disposition of all real and personal property purchased wholly or in part with funds furnished by the DEPARTMENT in the absence of state, federal statute(s), regulation(s), or policy(s) to the contrary or upon specific instructions with respect thereto in the Scope of Work. 4. Personal Property Furnished by the DEPARTMENT. When the DEPARTMENT provides personal property directly to the RECIPIENT for use in performance of the project, it shall be returned to the DEPARTMENT prior to final payment by the DEPARTMENT. If said property is lost, stolen or damaged while in the RECIPIENT's possession, the DEPARTMENT shall be reimbursed in cash or by setoff by the RECIPIENT for the fair market value of such property. 5. Acquisition Projects. The following provisions shall apply if the project covered by this agreement includes funds for the acquisition of land or facilities: a. Prior to disbursement of funds provided for in this agreement, the RECIPIENT shall establish that the cost of land/or facilities is fair and reasonable. b. The RECIPIENT shall provide satisfactory evidence of title or ability to acquire title for each parcel prior to disbursement of funds provided by this agreement. Such evidence may include title insurance policies, Torrens certificates, or abstracts, and attorney's opinions establishing that the land is free from any impediment, lien, or claim which would impair the uses contemplated by this agreement. 6. Conversions. Regardless of the contract termination date shown on the cover sheet, the RECIPIENT shall not at any time convert any equipment, property or facility acquired or developed pursuant to this agreement to uses other than those for which assistance was originally approved without prior written approval of the DEPARTMENT. Such approval may be conditioned upon payment to the DEPARTMENT of that portion of the proceeds of the sale, lease or other conversion or encumbrance which monies granted pursuant to this agreement bear to the total acquisition, purchase or construction costs of such property. N. SUSTAINABLE PRODUCTS In order to sustain Washington’s natural resources and ecosystems, the RECIPIENT is encouraged to implement sustainable practices where and when possible. These practices include use of clean energy, and purchase and use of sustainably produced products (e.g. recycled paper). For more information, see www.ecy.wa.gov/sustainability. RES.C Page 235 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 18 of 19 O. RECOVERY OF PAYMENTS TO RECIPIENT The right of the RECIPIENT to retain monies paid to it as reimbursement payments is contingent upon satisfactory performance of this agreement including the satisfactory completion of the project described in the Scope of Work. In the event the RECIPIENT fails, for any reason, to perform obligations required of it by this agreement, the RECIPIENT may, at the DEPARTMENT's sole discretion, be required to repay to the DEPARTMENT all grant/loan funds disbursed to the RECIPIENT for those parts of the project that are rendered worthless in the opinion of the DEPARTMENT by such failure to perform. Interest shall accrue at the rate of twelve percent (12%) per year from the time the DEPARTMENT demands repayment of funds. If payments have been discontinued by the DEPARTMENT due to insufficient funds as in Section K.2 above, the RECIPIENT shall not be obligated to repay monies which had been paid to the RECIPIENT prior to such termination. Any property acquired under this agreement, at the option of the DEPARTMENT, may become the DEPARTMENT'S property and the RECIPIENT'S liability to repay monies shall be reduced by an amount reflecting the fair value of such property. P. PROJECT APPROVAL The extent and character of all work and services to be performed under this agreement by the RECIPIENT shall be subject to the review and approval of the DEPARTMENT through the Project Officer or other designated official to whom the RECIPIENT shall report and be responsible. In the event there is a dispute with regard to the extent and character of the work to be done, the determination of the Project Officer or other designated official as to the extent and character of the work to be done shall govern. The RECIPIENT shall have the right to appeal decisions as provided for below. Q. DISPUTES Except as otherwise provided in this agreement, any dispute concerning a question of fact arising under this agreement which is not disposed of in writing shall be decided by the Project Officer or other designated official who shall provide a written statement of decision to the RECIPIENT. The decision of the Project Officer or other designated official shall be final and conclusive unless, within thirty days from the date of receipt of such statement, the RECIPIENT mails or otherwise furnishes to the Director of the DEPARTMENT a written appeal. In connection with appeal of any proceeding under this clause, the RECIPIENT shall have the opportunity to be heard and to offer evidence in support of this appeal. The decision of the Director or duly authorized representative for the determination of such appeals shall be final and conclusive. Appeals from the Director's determination shall be brought in the Superior Court of Thurston County. Review of the decision of the Director will not be sought before either the Pollution Control Hearings Board or the Shoreline Hearings Board. Pending final decision of dispute hereunder, the RECIPIENT shall proceed diligently with the performance of this agreement and in accordance with the decision rendered. R. CONFLICT OF INTEREST No officer, member, agent, or employee of either party to this agreement who exercises any function or responsibility in the review, approval, or carrying out of this agreement, shall participate in any decision which affects his/her personal interest or the interest of any corporation, partnership or RES.C Page 236 of 246 Washington State Department of Ecology Grant No. G1400114 City of Auburn Page 19 of 19 association in which he/she is, directly or indirectly interested; nor shall he/she have any personal or pecuniary interest, direct or indirect, in this agreement or the proceeds thereof. S. INDEMNIFICATION 1. The DEPARTMENT shall in no way be held responsible for payment of salaries, consultant's fees, and other costs related to the project described herein, except as provided in the Scope of Work. 2. To the extent that the Constitution and laws of the State of Washington permit, each party shall indemnify and hold the other harmless from and against any liability for any or all injuries to persons or property arising from the negligent act or omission of that party or that party's agents or employees arising out of this agreement. T. GOVERNING LAW This agreement shall be governed by the laws of the State of Washington. U. SEVERABILITY If any provision of this agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this agreement which can be given effect without the invalid provision, and to this end the provisions of this agreement are declared to be severable. V. PRECEDENCE In the event of inconsistency in this agreement, unless otherwise provided herein, the inconsistency shall be resolved by giving precedence in the following order: (a) applicable Federal and State statutes and regulations; (b) Scope of Work; (c) Special Terms and Conditions; (d) Any terms incorporated herein by reference including the "Administrative Requirements for Recipients of Ecology Grants and Loans"; and (e) the General Terms and Conditions. RES.C Page 237 of 246 AGENDA BILL APPROVAL FORM Agenda Subject: Resolution No. 4998 Date: October 14, 2013 Department: Public Works Attachments: Resolution No. 4998 Exhibit A Budget Impact: $0 Administrative Recommendation: City Council adopt Resolution No. 4998. Background Summary: The contract adopted by Resolution No. 4998 will allow City of Algona to utilize the City of Auburn’s Decant Facility to dump Vactor waste material on a space limited basis. Algona also agrees to participate in long term decant facility improvements. The City of Auburn will also supply Street Sweeping services on a quarterly basis for the City of Algona. Reviewed by Council Committees: Finance, Public Works Councilmember:Wagner Staff:Dowdy Meeting Date:October 21, 2013 Item Number:RES.D AUBURN * MORE THAN YOU IMAGINEDRES.D Page 238 of 246 RESOLUTION NO. 4 9 9 8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASIiINGTON, _AUTtiORIZING THE MAYOR AND CITY CLERK TO EXECUTE A CONTRAGT BETWEEN THE CITY OF AUBURN AND THE CITY OF ALGONA FOR DECANT FAGILITIES USAGE AND STREET SWEEPING SERVICES WhIEREAS, the City of Algona has inadequate facilities to handle the waste. materials produced from their public works street sweeping and Vactor maintenance; and WHEREAS, the City of Aubum has suffcient capacity at their decaM faality to handle the Algona waste materials and is willing to provide for the proper handling, processing and disposal of the City of Algona's street sweeper and Vactor truck materials at a cost that is acceptableto the City. NOW, THEREFORE, THE CITY COUNCIL OFTHE CITY OF AUBURN, KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows: Section 1. The Mayor of 4he City ofAubum is hereby authorized to execute an Interlocal Agreement between the City of Aubum and the City of Algona for Decant Facility Usage and Street Sweeping Services in substantial conformity with the Agreement attached hereto as Exhibit"A" and incorporated herein by this reference. Section 2. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directives of this legislation. ResoluGon No.4998 October 2, 2013 Page 1 of 2RES.D Page 239 of 246 Section 3. This resolution shall be in full force and effect upon passage and signatures hereon. Dated and Signed this day of 2013. CITY OF AUBURN PETER B. LEWIS, MAYOR ATTEST: Danielle E. Daskam, Cfty Clerk APP OVE O FOR : Daniel B. Heid, City Attomey - Resolution No.4998 Octaber 2, 2013 Page 2 of 2RES.D Page 240 of 246 Resolution No. 4998 Exhibit ‘A’ October 2, 2013 Page 1 of 6 Exhibit ‘A’ CONTRACT FOR SERVICES BETWEEN THE CITY OF ALGONA AND THE CITY OF AUBURN FOR DECANT FACILITIES USAGE AND STREET SWEEPING SERVICES THIS AGREEMENT is made and executed by and between the City of Algona, a Washington municipal corporation, hereafter designated as "Algona," and the City of Auburn, a Washington municipal corporation, hereafter designated as "Auburn." WHEREAS, Algona has inadequate facilities to properly handle the Waste Materials produced as a result of their Public Works street sweeping and Vactor maintenance activities; and WHEREAS, Auburn has sufficient capacity at their decant facility to handle the Algona Waste Materials. NOW, THEREFORE, for the consideration stated in this Agreement, Algona and Auburn do agree as follows: 1. PURPOSE The purpose of this Agreement is to provide for proper handling, processing and disposal of Street Sweeper and Vactor truck materials, herein referred to as “Waste Materials” generated by Algona. 2. RESPONSIBILITIES The City of Algona shall deliver Waste Materials to the decant area of the City of Auburn Maintenance & Operations facility (hereafter, the “Facility”), currently located at 1305 C Street SW, during the hours of 7:00 am and 3:00 pm. The unloading of the Waste Materials by Algona at the Facility is to be done under the supervision of an Auburn employee at the Facility. Algona will only send operators to use the decant facility that have been properly trained by Auburn on the safe and efficient use of the facility and dumping of Waste Materials. If conditions at the Auburn Facility require, Auburn reserves the right to request Algona to retain its Waste Materials until such time as the conditions at the Facility allow Auburn to accept the Waste Materials again. Auburn will give Algona as much advance RES.D Page 241 of 246 Resolution No. 4998 Exhibit ‘A’ October 2, 2013 Page 2 of 6 notice of these conditions as is practicable. Auburn further reserves the right to reject any individual shipment of Waste Materials. Auburn will provide for the dewatering and the disposal of the Waste Materials in compliance with all local, state, and federal permits pertaining to the dewatering and disposal of such Waste Materials. 3. VOLUME Auburn shall accept from Algona’s Waste Materials in the following volumes: not to exceed 20 tons per month or a total of 150 tons per year as measured at Auburn’s truck scale. Auburn may accept Waste Material from Algona that exceeds these volumes upon the review of a written request from Algona. All such requests shall be made to Auburn's Public Works Maintenance and Operations Manager thirty (30) days in advance of proposed delivery of such additional Waste Materials. 4. COST FOR SERVICES A. Waste Materials. Algona shall pay Auburn $30.00 per month base fee for administration costs and $70.00 per ton of Waste Materials for processing, testing and disposal fee (measured as scale weight). Auburn will bill Algona on a quarterly basis. B Sweeping Services. Auburn will provide street sweeping services on an as needed basis to Algona at the rate of $98.00 per hour for sweeper and operator; this does not include fees for the handling, processing and disposal of Waste Materials generated from sweeping. Auburn reserves the right to increase these fees in response to increases in labor, disposal, and regulatory costs. Auburn shall give Algona at least sixty (60) days’ advance written notification of any proposed fee increases. 5. DECANT FACILITY IMPROVEMENTS Algona recognizes that the capacity of Auburn’s Facility is limited and that additional capacity will need to be provided, as both Cities’ waste disposal needs continue to grow, in order to provide long-term service to Algona. Algona will also agree to participate in planning and funding of long term capacity improvements to the decant process in Auburn, including but not limited to improvements to the existing facility, installation of additional facility or other means to add additional capacity. By way of example only, and not by way of limitation, Algona and Auburn contemplate that subsequent amendments or agreements might address the following types of issues: planning, design and construction costs for potential RES.D Page 242 of 246 Resolution No. 4998 Exhibit ‘A’ October 2, 2013 Page 3 of 6 improvements to the existing Facility or construction of a new decant facility. The parties agree that Auburn will act as lead entity in the all aspects of any proposed improvement project. Auburn will consult in advance of any final decisions with Algona for the purposes of determining Algona's future needs and Algona's desire to participate in funding for an improved facility or a new facility. 6. TERM The duration of this Agreement shall be for an initial term of three (3) years beginning January 1, 2014 through December 31, 2016, and may be extended thereafter for an optional, additional term of three (3) years beginning January 1, 2017 through December 31, 2019, by written amendment of the Parties, including but not limited to mutual agreement on proposed changes – increases or decreases – to the cost for services in Section 4 of this Agreement, not later than sixty (60) days prior to the end of the initial term. It is further provided, however, that either party may terminate this Agreement upon providing one hundred twenty (120) days’ advance written notice to the other party. 7. REOPENER Either party may request that any provision of this Agreement can be renegotiated by submitting a written request with fourteen (14) days’ advance notice. Any amendment of this Agreement shall be in writing and shall be signed by both parties consistent with Section 13 of this Agreement. 8. HOLD HARMLESS AND INDEMNIFICATION a. Algona shall indemnify and hold Auburn and its agents, employees, officers and/or volunteers, harmless from and shall process and defend at its own expense any and all claims, demands, suits, at law or equity, actions, penalties, losses, damages, or costs, of whatsoever kind or nature, brought against Auburn arising out of, in connection with, or incident to the execution of this Agreement and/or Algona’s performance or failure to perform any aspect of this Agreement; provided, however, that if such claims are caused by or result from the concurrent negligence of Auburn, its agents, employees, officers and/or volunteers, this indemnity provision shall be valid and enforceable only to the extent of the negligence of Algona; and provided further, that nothing herein shall require Algona to hold harmless or defend Auburn, its agents, employees officers and/or volunteers from any claims arising from the sole negligence of Auburn, its agents, employees, officers and/or volunteers. No liability shall attach to Auburn by reason of entering into this Agreement except as expressly provided herein. b. Auburn shall indemnify and hold Algona and its agents, employees, officers and/or volunteers, harmless from and shall process and defend at its own expense any and all claims, demands, suits, at law or equity, actions, penalties, losses, damages, or costs, of whatsoever kind or nature, brought against Algona arising RES.D Page 243 of 246 Resolution No. 4998 Exhibit ‘A’ October 2, 2013 Page 4 of 6 out of, in connection with, or incident to the execution of this Agreement and/or Auburn’s performance or failure to perform any aspect of this Agreement; provided, however, that if such claims are caused by or result from the concurrent negligence of Algona, its agents, employees, officers and/or volunteers, this indemnity provision shall be valid and enforceable only to the extent of the negligence of Auburn; and provided further, that nothing herein shall require Auburn to hold harmless or defend Algona, its agents, employees, officers and/or volunteers from any claims arising from the sole negligence of Algona, its agents, employees, officers and/or volunteers. No liability shall attach to Algona by reason of entering into this Agreement except as expressly provided herein. c. 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 Auburn and Algona, its officers, officials, employees, and volunteers, any damages allowed shall be levied in proportion to the percentage of negligence attributable to each party, and each party shall have the right to seek contribution from the other party in proportion to the percentage of negligence attributable to the other party. It is further specifically and expressly understood that the indemnification provided herein constitutes the Parties' 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. d. AUBURN SHALL HAVE NO LIABILITY FOR, AND SHALL BE HELD HARMLESS FROM AND AGAINST, ALL CLAIMS, DAMAGES, LIABILITIES AND COSTS ARISING OUT OF OR RELATING TO THE PRESENCE, DISCOVERY, OR FAILURE TO DISCOVER, REMOVE, ADDRESS, REMEDIATE OR CLEANUP ENVIRONMENTAL OR BIOLOGICAL HAZARDS RESULTING FROM ALGONA DELIVERIES OR OTHERWISE ATTRIBUTABLE TO ALGONA, SPECIFICALLY INCLUDING, BUT NOT LIMITED TO, MOLD, FUNGUS, HAZARDOUS WASTE, SUBSTANCES OR MATERIALS. 9. RESOLUTION OF DISPUTES AND GOVERNING LAW a. Alternative Dispute Resolution If a dispute arises from or relates to this Agreement or the breach thereof and if the dispute cannot be resolved through direct discussions, the parties agree to endeavor first to settle the dispute in an amicable manner by mediation before resorting to arbitration. The mediator may be selected by agreement of the parties. Following mediation, or upon written agreement of the parties to waive mediation, any unresolved controversy or claim arising from or relating to this Agreement or breach thereof shall be settled through arbitration. The arbitrator may be selected by agreement of the parties or through King County court procedures. All fees and expenses for mediation or arbitration shall be borne by the parties equally. RES.D Page 244 of 246 Resolution No. 4998 Exhibit ‘A’ October 2, 2013 Page 5 of 6 However, each party shall bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence. b. Applicable Law and Jurisdiction This Agreement shall be governed by the laws of the State of Washington. Although the agreed to and designated primary dispute resolution method as set forth above, in the event any claim, dispute or action arising from or relating to this Agreement cannot be submitted to arbitration, then it shall be commenced exclusively in the King County Superior Court or the United States District Court, Western District of Washington as appropriate. The prevailing party in any such action before the courts shall be entitled to recover its costs of suit and reasonable attorneys' fees. 10. WRITTEN NOTICE All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. If written notice is provided by electronic mail (e-mail), then such written notice shall become effective one (1) business day after it is successfully sent. 11. NON-DISCRIMINATION Parties shall not discriminate in any manner related to this Agreement on the basis of race, color, national origin, sex, religion, age, marital status or disability in employment or the provision of services. 12. SEVERABILITY If any provision of the Agreement shall be held invalid, the remainder of this Agreement shall not be affected thereby if such remainder would then continue to serve the purposes and objectives of both parties. RES.D Page 245 of 246 Resolution No. 4998 Exhibit ‘A’ October 2, 2013 Page 6 of 6 13. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties. Any modifications or amendments to this Agreement shall be in writing and shall be signed by each party. DATED this ___________day of ______________________ 2013. CITY OF ALGONA CITY OF AUBURN David Hill Mayor Peter Lewis, Mayor 402 Warde Street 25 W. Main Street Algona, WA 98001 Auburn, WA 98001 ATTEST: ATTEST: Dianna Quinn, City Clerk Dani Daskam, City Clerk APPROVED AS TO FORM: APPROVED AS TO FORM: Kari Sand, City Attorney Dan Heid, City Attorney RES.D Page 246 of 246