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HomeMy WebLinkAboutItem 4.03 MuniCode Mediation C~TV Cl[E~1}{ f~le # D~[Z][Q]c~~ AGE~ DA 511" A 1I"1E1Mil1EINlT C~TY COlllNC~l MlElEr~INlG IDA TIE febnnalDy 5, 2008 SlJlIUlEC'f A'f'fACHMffiN'fS 1 RECOMMENDA TKON 1 ~ lFiNANCiAL STATEMENT None DESCRJ[PTlfON AdoptIon of Ordmance Amendmg Chapter 1 04 and Chapter 8 136 of the Dublm Muruclpal Code, Regardmg MedIatIOn Report Prepared by Rlchard Ambr05e, CIty Manager Elzzabeth H Sliver, Oty Attorney Jennifer E Faught, Assocrate Attorney 2 Ordmance Addmg SectIon 1 04045 to the Dubhn MUnICIpal Code, and Amendmg SectIOn 1 04050 and SectIOn 8 136050 Relatmg to MedIatIOn "Clean" verSIOn of Ordmance Addmg SectIOn I 04 045 to the DublIn MuniCipal Code, and Amendmg Section I 04 050 and SectIOn 8 136050 Relatmg to Mediation WIthout strIkethrough notatIOns Waive the readmg and ADOPT the Ordmance AddIng SectIOn 1 04 045 to the DublIn MunICIpal Code, and AmendIng SectIOn 1 04050 and SectIOn 8 136050 Relatmg to MedIatIon At the October 17,2006 CIty CouncIl meetmg, the CouncIl raIsed concerns that certaIn appeals were excessively time-consumIng, and dIrected Staff to look mto optIons for requmng parties to medIate before bnngmg theIr appeals to the CounCilor to other CIty offiCIals At the November 6, 2007 CIty CounCIl meetIng, the CounCIl had the OppOrtunIty to review and conSider several such options The CounCIl expressed Interest m one of the optIOns and directed staff to draft an ordInance Scope of the Proposed Ordmance The proposed Ordmance reqUIres would-be appellants to propose medIatIOn to the successful applIcant or permIttee before they may appeal to the CIty It applIes where the DublIn MUnICipal Code allows appeals by a person other than the applIcant or permIttee, such a person IS defined In the text of the Ordmance as a COpy 1'0. StfRpt Medl8tlOn DOC 114 1015 Page 1 of 4 ;/1;. ITEM NO r. "complmmng party" The proposed Ordmance would not apply to appeals by an applIcant, a penmttee, or City officIals Procedure Under the proposed Ordmance, acceptance of the proposed medIatIOn IS voluntary The complatmng party must send a wntten proposal to mediate to the applIcant or permIttee - by ematl, fax, m person dehvery, or overnight matl- wIthm five days of the decIsIOn The complammg party can call CIty Staff for the contact mformatIon ofthe applIcant or permIttee The applIcant or permittee then has two days from the date ofrecelpt, or four days from the date of delIvery, to eIther accept or refuse mediation m wntmg The applIcant or permittee must also notify the CIty Clerk of the acceptance or refusal of the proposal to medIate WIthm ten days of the deCISIOn Thus, the proposed Ordmance allows a maxImum of nme days for the mterested parties to determme whether medIatIOn WIll occur so that they can mform the City ofthelf plans wIthtn ten days ThIs mformatIon allows the CIty to plan accordmgly (e g , not Issue permits on subjects that are bemg medIated) More generally, the proposed Ordmance IS crafted to balance the CouncIl's mterest m encouragmg medIatIOn, and the mterest m resolvmg all appeals promptly The tImeframes were chosen so that partIes would have enough tlme to commUlllcate theIr mterest m medIatIOn, and also so that the eXIstmg tlmeframes for the appellate process could largely be respected As mentIOned above, wntten commurucatlon may be accomphshed by emml, facsImIle, m person dehvery, or overnIght mati, except that notIce to the City Clerk must be by emrol, faCSImile, or m person dehvery The faIlure to respond to a proposal to medIate wlthtn the tIme1me IS deemed a refusal It should be noted that a complmmng party loses the nght to appeal If he or she does not propose medIatIOn wlthm the five-day tIme lImit Thus, the mediation ordmance effectIvely shortens the amount of tIme a complammg party has to appeal, from ten days for deCISIOns made under the zomng ordmance (SectIon 8 136050), or fourteen days for all other Issues (SectIOn 1 04050), to five days m both cases If the partIes agree to mediate they must choose a neutral thIrd party to medIate then dIspute The proposed Ordmance makes the complatmng party responsible for all costs of the medIation, unless the parties agree to some other payment arrangement The proposed Ordmance states that the medIatIOn process begms when the deCISion IS made - that IS, when there has been a deCISIOn that IS subject to appeal under the MuniCipal Code by a person other than the apphcant or permIttee and that person WIshes to appeal the deCISIOn The entire mediatIOn process must be completed WIthm 30 days of the deCISIon ThIS 30-day penod mcludes the mne days allowed to propose and accept or refuse medIation If the parties use the full mne days, they would have 21 days left to schedule and complete the medIatIOn process If the partIes choose to mediate, at the end of the 30-day penod, If medIatIOn has been completed and the complammg party IS not satIsfied WIth the outcome, he or she may then appeal to the Plamnng CommISSIOn or the CIty CounCIl This appeal must be filed wlthm three days of the date that the medIatIOn ended The regular appellate process then contmues Thus, IfmedlatlOn IS conducted, the medIatIOn ordmance WIll necessanly lengthen the amount of tIme It takes to obtam a final deCISIOn from the Planmng CommiSSIOn or the CIty CouncIl by 23 days (for deCISions made under the zomng ordmance) or by 19 days (for all other declSlons) If the parties choose not to medIate, the complaImng party may file an appeal III conformance With the normal tIme lImits for appeals found m the respective sectIOns That IS, the complatmng party must file an appeal WIthm ten days of a deCISIOn under the zonmg ordmance, or wlthtn fourteen days of a declSlon subject to appeal under other MuniCipal Code sectIOns Page 2 of 4 Proposed Amendments to SectIon 1 04050 and SectiOn 8 136050 The proposed Ordmance would amend SectIons 1 04 050 and 8 136 050 to refer to the new Section 1 04 045 These amendments provIde that If SectIon 1 04 045 applIes and medIatIOn has been accepted, an appeal must be filed WIthm three days of the date the medIatIOn ends These amendments also provIde that If SectIOn I 04 045 applIes, the appellant must mclude along wIth the wntten notIce of appeal venficatIOn that mediation was eIther conducted or attempted A copy of the proposal to medIate, along WIth a copy of eIther a letter from the mediator mdlcatmg that mediatIOn was conducted WIth the date the medIatIOn was conducted, or a copy of the refusal, IS sufficIent In the case that wntten refusal was not obtaIned wlthtn the time lImIts for whatever reason, the proposed Ordmance states that the wrItten notice of appeal must be submItted along With a copy of the proposal to mediate and a declaration attestmg that the appellant/complammg party received no wrItten response One Year Tnal Penod Staff proposes that CouncIl adopt the Ordmance to remam m effect for one year after Its effective date It IS not clear how often It WIll be used and how It Will work m practIce At the end of the year, the CIty CounCIl could reevaluate the Ordmance to determme whether It should be reenacted, modified, or allowed to expIre Example Tlmelme Where PartIes Choose to MedIate - Zomng Code DeCISions DeCISIon Propose Acceptance Notify Complete File Appeal Fmal MedIatIOn City MedIatIOn DeC1SIOn Clerk August 1, by August 6 by August 10 by by August 31 by Sept 3 byNov 17 2007 (5 days from (max 4 days August (30 days (3 days from (75 days deCISIon) from delIvery 11 from end of from filmg of proposal) (10 days deCISIOn) medIatIOn) appeal, see from 8 136060) deCISIOn) Example TlmelIne Where Partv Refuses to MedIate - Zomng Code DeCISIons DeCISIOn Propose Refusal NotIfy CIty FIle Appeal FInal DeCISion MedIation Clerk August 1, 2007 by August 6 by August 10 by August 11 by August 11 by October 25 (5 days from (max 4 days (1 0 days (I 0 days from (75 days from deCISIOn) from dehvery from deCISIOn) filmg appeal, of proposal) deCISIon) see 8 136 060) Page 3 of 4 Example Tlmehne Where PartIes Choose to MedIate - Other Appeals DeCISIOn Propose Acceptance Notify CIty Complete FIle Appeal MedIatIOn Clerk MedItatIon August 1, 2007 by August 6 by August 10 by August 11 by August 31 by Sept 3 (5 days from (max 4 days (10 days from (30 days from (3 days from decIsIOn) from delIvery of decIsIOn) deCISIOn) end of proposal) medIatIon) Example TImehne Where Party Refuses to MedIate - Other Appeals DecISIon Propose Refusal Notlfy Clty File Appeal MedtatIOn Clerk August 1, 2007 by August 6 by August 10 by August 11 by August 15 (5 days from (max 4 days (10 days (14 days from deCISIOn) from dehvery from deCISIOn) of proposal) deCISIOn) On January 15,2008, the CIty CounCil held a publIc heanng regardmg the proposed ordmance FollOWIng the pubhc hearIng the CIty CounCIl waived the readIng and mtroduced the ordmance RJECOMMENDA TKON Staff recommends that the City CouncIl 1) watve the readmg and ADOPT the Ordmance Addmg Section 1 04 045 to the Dublm Muruclpal Code, and Amendmg SectIOn 1 04 050 and SectIOn 8 136 050 Relatmg to MedIatIon Page 4 of 4 lot' OIRJlnNANCE NO AN ORDiNANCE OF THE C][TY OlF DUlIllL][N ADDiNG SECT][ON 1 0.:3 045 TO THE DUBlLiN MUNiCiJP All CODE, AND AMEND][NG SECTiON 1 04050 AND SECT][ON 8136 050 RElLATiNG TO MED][ATiON RECITALS WJIlKRJEAS, from time to tIme, the Dublm CIty CouncIl, the CIty Manager, and the Planmng CommissIOn hear appeals from parties affected by deCISIOns of CIty offiCIals, and WHJEREAS, the CIty CouncIl supports alternative dIspute resolutIOn methods, and finds that medIatIOn can sometImes resolve disputes m a more effiCIent and effective manner than formal admtmstratIve actIOn or lItIgatIOn, and WHEREAS, the CIty wishes to mclude a process by which affected partIes may settle their disputes before appealIng to the CIty, NOW, THEREFORE, the CIty CounCil of the City of Dublm does hereby ordatn as follows SectIOn 1 SectIOn 1 04045 of the Dublm MumcIpal Code IS hereby added to read as follows Section 1 041 0.:85 MedlatIolIl A The CIty CouncIl declares that medIatIon can be an effectIve technIque to aVOid appeals by developmg consensus The City CouncIl also finds that medIatIOn can somettmes resolve disputes m a more effiCIent and effectIve manner than an appeal B Before a "complatmng party,' that IS, a person, other than an applIcant or a permittee, may appeal a deCISIOn of a City offiCIal, Plannmg Comnnsslon, or City Council, he or she must dehver Wlthm five (5) days of the deCISIOn a wntten proposal to medIate to the apphcant or permittee as a means to settle the dispute Dehvery means sendmg an ematl, faCSimIle, m person delIvery, or depOSIt m overnight mati The apphcant or permIttee shall eIther accept or refuse the proposal to medIate m wntmg wIthm two (2) days of the date the proposal to medIate was receIved, or four (4) days after It was delivered, whIchever IS sooner By the tenth day after the appealable deCISIOn, the applIcant or permittee must notIfy the City Clerk by ematl, fax, or In person, of the deCISIon whether the proposal to medIate was accepted or refused The faIlure of the apphcant or permIttee to respond WIthm these tImeltnes shall be deemed a refusal to mediate ::n"';';;' tJ::. 4 · 3 02/ 5/al1J ATTACHMENT 1 02~ 1 C If medIatIOn IS elected, the parties shall agree upon a neutral thIrd party medIator The complatmng party shall be responsible for all costs, If any, of the medIatIOn, unless the partIes agree to another payment arrangement D The medIation process begInS when the declsIOn IS made If the proposal to medlate lS accepted, the entIre medIatIOn process shall be completed WIthIn thIrty (30) days of the decIsIon E ThiS Section shall not apply to appeals by CIty OffiCIals, pursuant to SectIon 8 136 040, or to appeals by applicants or penmttees SectIolIl 2 SectIOn I 04050 of the Dublm MunICIpal Code IS hereby reVIsed as follows, With addItIons mdIcated m underlIne 1 04 050 ApIPe21 to City Ma1ll2gell" Oil" Cnty COlD.II1cIl A Any person exceptmg to the demal, suspensIOn or revocatIOn of a permIt or hcense applIed for or held by rum pursuant to any of the prOVISions of thiS code, or to any admmIstratIve deCISIOn made by any offiCIal ofthe City pursuant to any of the proVIsIOns OfthIS code may appeal to the CIty Manager or CIty CouncIl, as the case may be, when the rIght to appeal IS specIfically so proVided m thts code by reference to thIS sectIOn, by filIng a wntten notIce of appeal WIth the City Clerk, settIng forth the specrfic grounds thereof If SectIOn 1 04045 apphes, the WrItten notIce shall be accompallled by a COPy of the proposal to mediate, and a letter from the medIator mdlcatmg that medIatIOn was conducted and the date the medIatIon was conducted, or, If thcre was no med18tlon, a cOpy of the refusal In the event that no WrItten response to the proposal to mediate was made, the wntten nottcc of appeal shall be accompanIed by a copy of the proposal to medIate, and a declaration SIgned under penalty of perjury attestmg that the complammg party received no response to thc proposal to mediate B Notice of such appeal shall be filed WIth the City Clerk WIthm fourteen (14) calendar days after the date wntten notIce of such actIOn appealed from was maIled or personally delivered to the appellant, but III no event later than twenty (20) calendar days after the date of such actIOn, proVIded, however, that If SectIon 1 04 045 apphcs and medIatIOn has been accepted, any appeal must be filed wIthm three (3) days ofthe date that the medIatIon ended C The CIty Clerk shall forthWith set a date for hearmg before eIther the CIty CouncIlor City Manager, as the case may be, and shall gIVe the appellant at least five (5) calendar days' notIce of the tIme and place of saId hearmg D At such hearmg the appellant shall show cause on the grounds speCified III the notice of appeal why the actIOn excepted to should not be approved The City Manager or CIty CounCIl, as the case may be, may contInue the hearmg from tIme to time The findmgs on the appeal shall be final and conclUSive m the matter SectlOlll 3 SectIOn 8 136050 of the DublIn MuniCipal Code IS hereby reVised as follows, With additIons mdIcated In underhne 8 136 050 lFllmg AppeaDs 311 A Appeal lPenods An appeal must be filed Wlthm ten (l0} days of the actIOn whlch IS the subject of the appeal Appeals filed beyond ten (I O} days shall not be accepted~ exccpt that If SectIOn I 04 045 apphes and mediation has been accePted, any appeal must be filed wlthm three (3) days of the date that the mediation ended B lForm of appeal An appeal shall be III wntmg, shall reference any Planmng ApphcatIOn number, shall fully state the extent of the appeal and the reasons and grounds for appeal, shall mclude any mformatIOn reqUIred by the DIrector of Commuruty Development, and may mclude any explanatory matenals the appellant Wishes to furnIsh The appeal shall be accompanIed by the filmg fee estabhshed by the City CouncIljf Section 1 04045 apphes, the wntten appeal shall also be accompamed by a copy of the medIatIOn proposal, and a letter [rom the mediator mdIcatmg that mediatIOn was conducted and the date the medIatIOn was conducted, or, If there was no medIatIOn, a COpy of the refusal In the event that no wntten response to the proposal to medIate was made the wntten notice of appeal shall be accompanIed by a COpy of the proposal to mediate, and a declaratIOn SIgned under penalty of penury attestmg that the comp!ammg party received no response to the proposal to mediate C lFlled Wltlb. City Clerk An appeal shall be filed WIth the City Clerk D Effect of filmg In the event of an appeal, the deCISIOn beIng appealed shall not be effectIve untIl final actIOn by the appeal body Sectnon 4 SeverabIhty The proVISions ofthts Ordmance are severable and If any proVISIOn, clause, sentence, word or part thereof IS held Illegal, mvalId, unconstitutIOnal, or mapphcable to any person or CIrcumstances, such IllegalIty, mvalIdlty, unconstitutIOnalIty, or mapphcabIlIty shall not affect or Impatr any ofthe remaImng prOVISions, clauses, sentences, sectIOns, words or parts thereof of the ordmance or their apphcabIlIty to other persons or CIrcumstances SectIOn 5 EffectIve Date This Ordmance shall take effect and be enforced thIrty (30) days followmg ItS adoptIOn and shall remaIll III effect for one (1) year from Its effective date SectIOn 6 Postmg The CIty Clerk of the CIty of Dublm shall cause thiS Ordmance to be posted m at least three (3) publIc places m the Ctty of Dubhn m accordance With Section 36933 of the Government Code of the State of Call forma PASSED, AlP'lPROVEID AND ADOPTED thiS ~ day of ,2007 AYES NOES ABSENT ABSTAIN Janet Lockhart, Mayor ATTEST Carolyn Parkmson, Intenm City Clerk 4*1 1511 ORDJrNANCE NO XX - 08 AN ORDiNANCE OlF THE CiTY COUNCIJL OF THE CITY OF DUBLiN ********* ADDING SECTiON .1 040415 TO THE DUlBJLJrN MUNlClflPAL COIDE, AND AMENDING SECT][ON 1 041 050 AND SECTION 8136050 RELAT][NG TO MEDIA l'lfON RECITALS WHEREAS, from tIme to tIme, the DublIn City CouncIl, the City Manager, and the Plannmg CommIssIOn hear appeals from parties affected by deCISIOns of City offiCials, and W1HIEREAS, the CIty CouncIl supports alternatIve dispute resolutIOn methods, and finds that mediatIOn can sometImes resolve disputes m a more effiCient and effective manner than formal admmIstratlVe action or lItIgatIOn, and WHEREAS, the CIty Wishes to Include a process by wrnch affected parties may settle theIr disputes before appealmg to the CIty NOW, THEREFORE, the CIty CounCil of the CIty of Dubhn does hereby ordaIn as follows SectIon.1 SectIOn 1 04045 of the Dublm Mumclpal Code IS hereby added to read as follows Sechon 1 04 045 MediatIOn A The CIty CounCIl declares that mediatIon can be an effectIve technique to aVOId appeals by develoPIng consensus The CIty CouncIl also finds that medtatIon can sometImes resolve dIsputes m a more effiCIent and effective manner than an appeal B Before a "complmnIng party," that IS, a person, other than an applIcant or a penmttee, may appeal a deCISIOn of a City offiCial, Plannmg CommIssIOn, or CIty CounCIl, he or she must delIver WIthm five (5) days of the deCISIon a written proposal to medIate to the applIcant or permIttee as a means to settle the dispute DelIvery means sendIng an ematl, faCSImile, In person delIvery, or depOSIt m overnight mati The applIcant or permIttee shall either accept or refuse the proposal to medtate In wntmg WIthm two (2) days of the date the proposal to medIate was received, or four (4) days after It was delIvered, wrnchever IS sooner By the tenth day after the appealable decISlon, the applIcant or permittee must notIfy the CIty Clerk by emaIl, fax, or m person, of the declSlon whether the proposal to medIate was accepted or refused The faIlure of the applIcant or permIttee to respond WIthm these tImelmes shall be deemed a refusal to mediate C If medtatlon IS elected, the parties shall agree upon a neutral thIrd party medIator The complatmng party shall be responsIble for all costs, If any, ofthe medIatIOn, unless the partIes agree to another payment arrangement D The medIation process begms when the deCISIOn IS made If the proposal to memate IS accepted, the entIre medIatIOn process shall be completed WIthtn thirty (30) days of the deCISIon Ord No XX-08, Adopted~, 2008, Item No Page 1 of3 ArrACHMENT 2 ~~7 E ThIs Section shall not apply to appeals by City officials, pursuant to SectiOn 8 136 040, or to appeals by applIcants or permIttees SectIon 2 SectiOn 1 04050 of the Dublm Murucipal Code IS hereby revIsed as follows, WIth additions mdlcated m underlIne 1 04 050 Appeal to City Manager or City Council A Any person exceptmg to the demal, suspenSIOn or revocatIOn of a permit or lIcense apphed for or held by hIm pursuant to any of the provlSlons of thIs code, or to any admInIstrative decIsion made by any officIal of the CIty pursuant to any of the provlSlons of thIs code may appeal to the CIty Manager or City CouncIl, as the case may be, when the nght to appeal IS specifically so provided m thIS code by reference to thts sectIOn, by filmg a wntten notice of appeal WIth the City Clerk, settmg forth the specific grounds thereof If SectIOn I 04045 applIes, the wntten notice shall be accompanied by a copy of the proposal to mediate, and a letter from the mediator mdlcatmg that mediatIOn was conducted and the date the mediatIOn was conducted, or, If there was no mediatIOn, a copy ofthe refusal In the event that no wntten response to the proposal to mediate was made, the wntten notice of appeal shall be accompamed by a copy of the proposal to mediate, and a declaratIOn signed under penalty of perJury attestmg that the complannng party received no response to the proposal to mediate B Notice of such appeal shall be filed With the City Clerk wlthtn fourteen (14) calendar days after the date wntten notice of such actIOn appealed from was mailed or personally delIvered to the appellant, but m no event later than twenty (20) calendar days after the date of such actiOn, provided, however, that If SectIOn 1 04045 applIes and mediatIOn has been accepted, any appeal must be filed WlthIll three (3) days of the date that the mediatIOn ended C The City Clerk shall forthwith set a date for heanng before either the City CouncIl or City Manager, as the case may be, and shall give the appellant at least five (5) calendar days' notice of the time and place of Said heanng D At such heanng the appellant shall show cause on the grounds specified m the notIce of appeal why the actIOn excepted to should not be approved The City Manager or CIty Council, as the case may be, may contmue the hearmg from time to time The findmgs on the appeal shall be final and conclUSive m the matter SectIOn 3 SectIOn 8 136050 of the Dublm Muruclpal Code IS hereby revised as follows, WIth additions mdlcated m underlIne 8 136 050 lFdmg Appeals A Appeal PerIOds An appeal must be filed Wlthm ten (10) days of the actIOn which IS the subject of the appeal Appeals filed beyond ten (10) days shall not be accepted, except that If Section 1 04045 applIes and mediatIOn has been accepted, any appeal must be filed WIthm three (3) days of the date that the mediatIOn ended lB Form of appeal An appeal shall be m wntmg, shall reference any PlannIllg ApphcatIOn number, shall fully state the extent of the appeal and the reasons and grounds for appeal, shall mclude any mformatiOn reqUIred by the Duector of Commuruty Development, and may mclude any explanatory Ord No xx 08, Adopted _, 2008, Item No Page 2 of3 117 matenals the appellant wishes to funnsh The appeal shall be accompamed by the filIng fee establIshed by the CIty CouncIl If SectIon 1 04 045 applIes, the wntten appeal shall also be accompanIed by a copy of the medIatIOn proposal, and a letter [rom the mediator mdlcatmg that mediation was conducted and the date the mediation was conducted, or, If there was no medIatIOn, a copy of the refusal In the event that no wrItten response to the proposal to mediate was made, the written notice of appeal shall be accompanied by a copy of the proposal to mediate, and a declaratIOn SIgned under penalty of perJury attestmg that the complammg party receIved no response to the proposal to mediate C FIled! With City Clerk An appeal shall be filed WIth the CIty Clerk D Effect of film.g In the event of an appeal, the deCISion bemg appealed shall not be effectIve untIl final actIOn by the appeal body Section 4J. SeverabIlIty The provISIOns ofthlS Ordmance are severable and If any provISIon, clause, sentence, word or part thereof IS held Illegal, InvalId, unconstItutIOnal, or InapplIcable to any person or CIrcumstances, such IllegalIty, mvalIdlty, unconstItutIOnalIty, or mapplIcabIlIty shall not affect or Impau any of the remaImng proVISIons, clauses, sentences, sectIOns, words or parts thereof of the ordmance or theIr applIcabilIty to other persons or circumstances SectIOn 5 Effective Date ThiS Ordmance shall take effect and be enforced thIrty (30) days follOWIng ItS adoptIon and shall remam m effect for one (1) year from Its effective date SectIOn 6 Postmg The CIty Clerk of the CIty of Dub 1m shall cause thiS Ordmance to be posted m at least three (3) publIc places m the CIty of DublIn m accordance WIth SectIon 36933 of the Government Code of the State ofCalIfoffiIa PASSED, APPROVED AND ADOPTED thIs 15th day of January, 2008 AYES NOES ABSENT ABSTAIN Mayor ATTEST Deputy City Clerk Ord No XX-08, Adopted _ 2008, Item No Page 3 of3