HomeMy WebLinkAbout2917 Contracting Procedures
ORDINANCE NO. 2917
AN ORDINANCE AMENDING THE ASHLAND MUNICIPAL
CODE RELATING TO RULES OF PROCEDURE FOR
PUBLIC CONTRACTING AND PERSONAL SERVICE
CONTRACTS; REPEALING CHAPTERS 2.50 AND 2.52
OF THE ASHLAND MUNICIPAL CODE AND
RESOLUTIONS NO. 2000-15, NO. 2000-14, NO. 99-68,
NO. 99-64, AND NO. 99-30; AND DECLARING AN
EMERGENCY.
Recitals:
A. It is the policy of the City of Ashland that a sound and responsive public
contracting system should allow impartial, meaningful, and open competition, preserving
formal competitive selection as the standard for public contracts unless otherwise
specifically exempted herein, by state law, or by subsequent ordinance or rE~solution.
B. The Oregon Legislature adopted HB 2341 (2003 Oregon Laws, Chapter 794)
the ("Public Contracting Code"), which was signed by the Governor, and has an
operative date of March 1, 2005. Oregon Revised Statutes ("ORS") chapter 279 is
repealed (with minor exceptions) and replaced with three new subchapters: ORS 279A,
279B, and 279C. These three subchapters, together, constitute the new Public
Contracting Code. All rules and exemptions adopted under ORS chapter 2"79, including
Ashland Municipal Code ("AMC") Chapter 2.50, "Local Public Contract Review Board,"
AMC Chapter 2.52, "Purchasing Agent," and associated adopted resolutions will expire
March 1, 2005.
C. Absent any action by the Local Contract Review Board ("LRCB"), the LRCB
and its delegee will be subject to the Model Rules adopted by the Attorney General
under ORS subchapters 279A, 279B, and 279C (the "Model Rules"), which iinclude
Divisions 46,47,48, and 49 in the Attorney General's Public Contracts Manual.
D. In order to adopt new public contracting rules that differ from the rv10del
Rules, the City Council must specifically state that the Model Rules adopted by the
Attorney General do not apply, and must adopt its own rules. The Local Contract
Review Board may also adopt rules for public contracting not covered by thE~ Model
Rules as long as they do not conflict with the Public Contracting Code.
E. The Public Contracting Code divides powers and duties for contracting into
two categories: those that must be performed by the "Local Contract Revie,^, Board";
and those that must be performed by the "Contracting Agency."
F. The Local Contract Review Board may designate certain personall service
contracts or classes of service contracts as personal service contracts, which are not
subject to the rules of the Public Contracting Code or the Model Rules.
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THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
Section 1. Ashland Municipal Code Chapter 2.50 is repealed and adopted to read as
follows:
Chapter 2.50
PUBLIC CONTRACTS
Sections:
2.50.010
2.50.020
2.50.030
2.50.040
2.50.050
2.50.060
2.50.070
2.50.080
2.50.090
Definitions.
Public Contracting Rules.
Local Contract Review Board.
Contracting Agency.
Model Rules.
Formal Competitive Selection Procedures.
Formal Competitive Selection Procedures-Exemptic.ns.
Notice of Public Contracts.
Disposal of Surplus and Abandoned Property.
Section 2.50.010 Definitions.
A. "Award" means the selection of a person to provide goods, services or public
improvements under a public contract. The award of the contract is not binding
on the City until the contract is executed and delivered by the Purchasing Agent
or his or her delegee.
B. "Advertising contracts" mean contracts for securing announcements in
newspapers or magazines, during telecommunications broadcasts, upon
billboards, through distribution of handbills, by direct mail, or though other mass
media. To the extent that the Model Rules adopted by the Attorney General
under ORS 279A, 279B, and 279C (the "Model Rules") allow more than this
definition for advertising contracts, the Model Rules do not apply.
C. "Bid" means a binding, sealed, written offer to provide goods, services or public
improvements for a specified price or prices.
D. "Exemptions" mean exemptions from the formal competitive selection procedures
for public improvement contracts and contracts and personal service contracts of
architects, engineers, land surveyors, and related services, as well as contracts
and classes of contracts designated as "special procurements" under ORS
279B.085.
E. "Formal competitive selection procedures" means procedures for public
contracting as required by ORS 279B.050(1) (competitive sealed bids or
competitive sealed proposals for goods and services), or ORS 279C.:335( 1 )
(competitive bids for public improvements)
F. "Formal competitive selection process" means the process of using formal
competitive selection procedures for the procurement of goods and services or
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for public improvements contracts and personal service contracts of architects,
engineers, land surveyors, and related services.
G. "Proposal" means a binding offer to provide goods, services or public
improvements with the understanding that acceptance will depend on evaluation
of factors other than, or in addition to, price. A proposal may be made in
response to a request for proposals or under an informal solicitation.
H. "Quote" means a price offer made in response to an informal solicitation to
provide goods, services or public improvements.
I. "Services" means and includes all types of services (including construction labor)
other than personal services as regulated in Section 2.52 of the Ashland
Municipal Code.
Section 2.50.020 Public Contracting Rules.
The following rules are adopted as the city's public contracting rules. As provided by
ORS 279A.065(5)(a), the Model Rules adopted by the Attorney General under ORS
279A, 279B, and 279C (the "Model Rules") do not apply, unless otherwise provided for
herein or as adopted by ordinance or resolution by the Local Contract Revievv Board.
Section 2.50.030 Local Contract Review Board.
The City Council of the City of Ashland is designated as the Local Contract Review
Board under the State of Oregon Public Contracting Code. The Local Contract Review
Board may delegate its powers and responsibilities consistent with the Oregon Public
Contracting Code, the Model Rules, and the Ashland Municipal Code.
Section 2.50.040 Contracting Agency.
The Finance Director, or his/her designee is delegated the authority to exercise all
authorities granted by the Public Contracting Code, ORS 279A, 279B, and 279C, and all
authority granted herein, and by subsequent ordinance or resolution. The Finance
Director is designated as the City's "Contracting Agency" for purposes of contracting
powers and duties assigned to the City of Ashland as a "Contracting Agency." For
purposes of this chapter the "Contracting Agency" shall be referred to as the Purchasing
Agent, who is the Finance Director or his/her designee.
Section 2.50.050 Model Rules.
Unless expressly provided herein, or by subsequent ordinance or resolution, the Model
Rules, Divisions 46,47,48 and 49, adopted by the Attorney General under ()RS 279A,
279B, and 279C, as they now exist, and as they may be amended in the future, and in
the Ashland Municipal Code, are hereby adopted as the City's public contracting rules.
Words and phrases used by these rules that are defined in ORS subchapters 279A,
279B, and 279C and in the Model Rules, have the same meaning as defined in ORS
subchapters 279A, 279B, and 279C and the Model Rules. In the event that rules
adopted by the Local Contract Review Board do not address a particular situation, the
Model Rules apply.
Section 2.50.060 Formal Competitive Selection Procedures.
Administrative staff and departments have contracting authority and responsibilities as
follows:
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A. The Purchasing Agent is authorized to:
1. Enter into city contracts not to exceed $75,000 without additional
authorization of the Local Contract Review Board. Contracts exceeding
$75,000 for public improvements, identified in a Capital Improvement
Plan, that have been approved by the City Council through the budgetary
process, shall be deemed to be approved by the Local Contract Review
Board.
2. Recommend that the Local Contract Review Board approve or disapprove
contract awards in excess of $75,000, or to change orders or amendments
to contracts of more than $75,000.
3. Adopt forms, computer software, procedures, and administrative policies
"for all City purchases consistent with the Ashland Municipal Code.
B. All contracting by departments shall conform to approved City purchasing
procedures adopted by the Purchasing Agent or the Local Contract Review
Board.
C. Each department shall plan purchase requirements sufficiently in advance so that
orders can be placed in economical quantities.
D. The Purchasing Agent shall process requisition forms and negotiate purchases
on the most favorable terms in accordance with adopted ordinances, state laws
(including the Public Contracting Code), policies and procedures.
Section 2.50.070 Formal Competitive Selection Procedures-Exemptic.ns.
All public contracts shall be based upon formal competitive selection requirelments of
ORS 279B.050(1) or ORS 279C.335(1), except as expressly provided in this
subsection, or by subsequent ordinance or resolution. Regardless of whether a contract
is exempt from the formal competitive selection process or not, no service or work may
be performed, and no goods, supplies or equipment may be delivered, until a city
purchase order has been issued by the Purchasing Agent. This requiremen1t may be
waived, however, when circumstances exist that create a substantial risk of Iloss,
damage, interruption of services or threat to public health or safety and that require
prompt action to protect the interests of the City. The following classes of public
contracts are hereby exempted from the formal competitive selection requirements of
ORS 279B.050(1) and ORS 279C.335(1):
A. Any contract exempted by the State of Oregon Public Contracting Code or Model
Rules;
B. Any contracts expressly exempted from formal competitive selection procedures
adopted by ordinance or resolution by the Local Contract Review Board pursuant
to ORS 279B.085;
C. Purchases through federal programs pursuant to ORS 279A.180;
D. In the event of an emergency involving an immediate hazard to the public health,
safety, or welfare, the city administrator, finance director, or public works director
may secure necessary goods and/or services without a formal competitive
selection process, provided that the Local Contract Review Board, at a regularly
scheduled meeting within 30 days of the procurement, is furnished with a full
report of the circumstances and costs of the materials and/or services secured;
E. Contracts for goods or services, or a class of goods or services, which are
available from only one source. To the extent reasonably practical, the
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Purchasing Agent shall negotiate with the sole source to obtain contralct terms
advantageous to the City. Sole source contracts for goods or services, or
classes of goods or services, which are available from only one source which
exceed $5,000, but do not exceed $75,000, must be approved by the Purchasing
Agent. Sole source contracts for goods or services, or classes of goods or
services, which are available from only one source which exceed $75:,000 must
be approved by the Local Contract Review Board. The Purchasing A~~ent shall
provide public notice via the City's Internet website of the determination of a sole-
source contract that exceeds $75,000 at least fourteen (14) days prior to the
LCRB approval. The determination of a sole source must be based on written
findings that may include:
1. That the efficient utilization of existing goods requires the acquiisition of
compatible goods or services;
2. That the goods or services required for the exchange of software or data
with other public or private agencies are available from only one source;
3. That the goods or services are for use in a pilot or experimental project;
4. Other findings that support the conclusion that the goods or services are
available from only one source;
F. Contracts for products, services or supplies if the value of the contract does not
exceed $5,000. Any procurement of goods or services not exceeding $5,000 per
item may be awarded in any manner deemed practical or convenient by the
Purchasing Agent (or any person with purchasing authority), including by direct
selection or award. A contract awarded under this section may be arnended to
exceed $5,000 only upon approval of the Purchasing Agent, and in no case may
exceed $6,000. A procurement may not be artificially divided or fragnlented so
as to constitute a small procurement under this section;
G. Contracts for the purchase of copyrighted materials where there is only one
supplier available within a reasonable purchase area for such goods;
H. Contracts for the placing of notice or advertisements in any medium;
I. Contracts for the purchase of services, equipment or supplies for maintenance,
repair or conversion of existing equipment if required for efficient utilization of
such equipment;
J. Contracts for the purpose of investment of public funds or the borrowing of funds;
K. Purchases of goods or services pursuant to a requirements contract vvhich was
established by a formal competitive selection process. Purchases may also be
made at prices established by a requirement contract or other agreernent
between another public body and a contractor if the requirements contract was
established by a formal competitive selection process;
L. Contracts for purchase or sale of water, electricity, cemetery lots, cable and
telecommunication services, including internet bandwidth, and the sale of
telecommunication materials or products or other services, materials or products
traditionally provided by the City;
M. Contract amendments, including change orders, extra work, field orders, or other
changes in the original specifications which in the aggregate change the original
contract price or alters the work to be performed, may be made with the
contractor if such change or alteration is less than twenty-five percent (250/0) of
the initial contract, and is subject to the following conditions:
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1. The original contract imposes binding obligation on the parties covering
the terms and conditions regarding changes in the work; or
2. The amended contract does not substantially alter the scope or nature of
the project;
N. Contracts for the purchase of goods or services where the rate or price for the
goods or services being purchased is established by federal, state or local
regulating authority;
O. Contracts not to exceed $50,000 for the purchase of goods, materials" supplies
and services. For contracts for the purchase of goods, materials, supplies and
services that are more than $5,000, but that do not exceed $50,000, a minimum
of three competitive written quotes shall be obtained. The Purchasing Agent
shall keep a written record of the source and amount of quotes receivE3d. If three
quotes are not available, a lesser number will suffice, provided that a 'Nritten
record is made of the effort to obtain the quotes;
P. Contracts not to exceed $75,000 for public improvements, including contracts for
services of architects, engineers, land surveyors and related services, (other than
contracts for a highway, bridge or other transportation projects), if the following
conditions are met:
1. The contract is for a single project and is not a component of or related to
any other project;
2. When the amount of the public improvement contract (other than contracts
for a highway, bridge or other transportation projects) is more than $5,000,
but does not exceed $75,000, a minimum of three competitive vvritten
quotes shall be obtained. The Purchasing Agent shall keep a \~ritten
record of the source and amount of quotes received. If three quotes are
not available, a lesser number will suffice, provided that a written record is
made of the effort to obtain the quotes;
3. The Purchasing Agent shall award the contract to the prospective
contractor whose quote will best serve the interests of the City, taking into
account price and other applicable factors, such as experience, specific
expertise, availability, project understanding, contractor capacity and
contractor responsibility. If the contract is not awarded on basis of lowest
price, the Purchasing Agent shall make a written finding of the basis for
the award;
Q. Contracts for a highway, bridge or other transportation projects more than
$5,000, but not to exceed $50,000, if the following conditions are cornplied with:
1. The contract is for a single project and is not a component of or related to
any other project;
2. When the amount of the contract for a highway, bridge or other
transportation projects is more than $5,000, but does not exceed $50,000,
a minimum of three competitive written quotes shall be obtained. The
Purchasing Agent shall keep a written record of the source and amount of
quotes received. If three quotes are not available, a lesser nurllber will
suffice, provided that a written record is made of the effort to obtain the
quotes;
3. The Purchasing Agent shall award the contract to the prospective
contractor whose quote will best serve the interests of the City, taking into
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account price and other applicable factors, such as experience" specific
expertise, availability, project understanding, contractor capacity and
contractor responsibility. If the contract is not awarded on basis of lowest
price, the Purchasing Agent shall make a written finding of the basis for
the award.
R. Contracts to purchase specialized cable television equipment and related
components, connectors and hardware through the National Cable Television
Cooperative and its approved equipment manufacturers and suppliers for the
Ashland Fiber Network cable television system.
S. Contracts for the purchase of cable television programming for the Ashland Fiber
Network cable television system.
Section 2.50.080 Notice of Public Contracts.
Notice of public improvement contracts or contracts for the purchase of goods or
services may be published electronically where the Purchasing Agent finds that such
publication is likely to be cost effective as provided in ORS 279C.360.
Section 2.50.090 Disposal of Surplus and Abandoned Property.
The Purchasing Agent shall have the authority to dispose of surplus property and
abandoned personal property not owned by the City by any means determined to be in
the best interests of the City, including but not limited to, transfer to other departments,
government agencies, non-profit organizations, sale, trade, auction, or destruction;
provided however, that disposal of personal property having residual value of more than
$10,000 shall be subject to authorization by the Local Contract Review Board.
Section 2: Ashland Municipal Code Chapter 2.52 is repealed and adopted to read as
follows:
Chapter 2.52
PERSONAL SERVICE CONTRACTS
Sections:
2.52.010
2.52.020
2.52.030
2.52.040
2.52.050
2.52.060
2.52.070
Definitions.
Purpose.
Personal Service Contracts-Listed.
Rules and Procedures.
Formal Competitive Selection Procedures-Exemptions.
Screening Criteria.
Selection Process.
Section 2.52.010 Definitions.
A. "Personal service contracts" include contracts for services that require
specialized technical, artistic, creative, professional or communication skills or
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talent, unique and specialized knowledge, or the exercise of discretionary
judgment skills, and for which the service depends on attributes that are unique
to the service provider, other than contracts for an architect, engineer, land
surveyor or provider of related services as defined in ORS 279C.1 00.
B. "Purchasing Agent" means the Finance Director or his/her designee vvho has the
authority to enter into personal service contracts.
C. "Formal competitive selection procedures" means procedures for the selection of
personal service contracts, which shall be the same formal procedures as are
required for the selection of goods and services as required by ORS 279B.060
(competitive sealed proposals) and as clarified in the Model Rules, OAR 137-
047-0260.
D. "Formal competitive selection process" means the process of using formal
competitive selection procedures for the selection of personal service contracts.
Section 2.52.020 Purpose.
Personal service contracts will be used to retain the services of independent contractors
(other than contracts for an architect, engineer, land surveyor or provider of related
services as defined in ORS 279C.1 00). Nothing in this section shall apply to the
employment of regular city employees.
Section 2.52.030 Personal Service Contracts-Listed.
Pursuant to ORS subchapter 279A.055(2), the following contracts or classes of
contracts for personal services shall not be subject to the rules of procedure of Chapter
2.50 or the Model Rules unless provided herein:
A. Accountants;
B. Appraisers;
C. Computer programmers;
D. Lawyers;
E. Psychologists;
F. I nvestment Consultants;
G. Insurance Consultants;
H. Advertising Consultants;
I. Marketing Consultants;
J. Graphics Consultants;
K. Training Consultants;
L. Public Relations Consultants;
M. Communications Consultants;
N. Data Processing Consultants;
O. Management Systems Consultants;
P. Any other personal service contracts or classes of contracts that the Purchasing
Agent or his/her designee identifies as personal service contracts.
Section 2.52.040 Rules and Procedures.
Personal service contracts are subject to the rules established by this section:
A. Unless otherwise approved by the Purchasing Agent, all personal service
contracts shall require the contractor to defend, indemnify, and hold harmless the
City, its officers, agents and employees against and from any and all claims or
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demands for damages of any kind arising out of or connected in any 'way with the
contractor's performance thereunder and shall include a waiver of contractor's
right to ORS 30.285 and ORS 30.287 indemnification and defense.
B. Unless otherwise approved by the Purchasing Agent, personal service contracts
shall contain a provision requiring the person or entity providing the service to
obtain and maintain liability insurance coverage in at least the amount of the
City's tort liability limits, naming the City as an additional named insurBd, during
the life of the contract.
C. All personal service contracts shall contain all contract provisions mandated by
state law and by the Ashland Municipal Code. These provisions may be
incorporated in the personal service contract by reference unless otherwise
provided by law.
D. The formal competitive selection procedures described in this section may be
waived by the Purchasing Agent when an emergency exists that could not have
been reasonably foreseen and requires prompt execution of a contract to remedy
the situation that there is not sufficient time to permit utilization of the formal
competitive selection procedures.
E. Personal service contract proposals may be modified or withdrawn at any time
prior to the conclusion of discussions with an offeror.
F. The Purchasing Agent shall establish internal procedures for the review,
processing, and listing of all contracts, whether procured through a formal
competitive selection process, or exempt from the formal competitive selection
procedures. Such review shall include a method for determining compliance with
these rules.
G. For personal service contracts that are anticipated to cost $5,000 or IE~ss, such
contracts must be memorialized by a formal purchase order.
H. For personal service contracts that are anticipated to exceed $5,000, but not
exceed $25,000, at least three competitive written quotes from prospE~ctive
contractors who shall appear to have at least minimum qualifications for the
proposed assignment, shall be solicited. Each solicited contractor shall be
notified in reasonable detail of the proposed assignment. Any or all interested
prospective contractors may be interviewed for the assignment by an appropriate
City employee or by an interview committee.
I. For personal service contracts that are anticipated to cost in excess of $25,000,
the department head for the department that needs the services shall make the
following determinations:
1. That the services to be acquired are personal services;
2. That a reasonable inquiry has been conducted as to the availability of City
personnel to perform the services, and that the City does not have the
personnel nor resources to perform the services required under the
proposed contract; and
3. That the department has developed, and fully plans to implement, a
written plan for utilizing such services which will be included in the
contractual statement of work.
J. All personal service contracts exceeding $25,000 shall be based upon formal
competitive selection procedures, except as expressly provided in this
subsection, or by subsequent ordinance or resolution. For personal service
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contracts that are anticipated to cost in excess of $25,000, the departrnent head
for the department that needs the services shall follow the formal competitive
selection procedures for formal competitive sealed proposals as found in the
Model Rules, OAR 137-047-0260. Regardless of whether a personal service
contract is exempt from the formal competitive selection process or not, no
service or work may be performed until a purchase order has been issued. This
requirement may be waived, however, when circumstances exist that create a
substantial risk of loss, damage, interruption of services or threat to public health
or safety and that require prompt action to protect the interests of the City.
Section 2.52.050 Formal Competitive Selection Procedures-Exemptiolns.
Contracts for personal services are exempt from formal competitive selection
procedures if any of the following conditions exist:
A. The contract amount is anticipated to be $25,000 or less.
B. Contract amendments, which in the aggregate change the original contract price
or alters the work to be performed, may be made with the contractor if such
change or alteration is less than twenty-five (250/0) of the initial contract and are
subject to the following conditions:
1. The original contract imposes binding obligation on the parties covering
the terms and conditions regarding changes in the work; or
2. The amended contract does not substantially alter the scope or nature of
the project;
C. The Purchasing Agent finds that there is only one person or entity within a
reasonable area that can provide services of the type and quality required.
D. The contract for services is subject to selection procedures established by the
State or Federal government.
E. The contract is for non-routine or non-repetitive type legal services outside the
Legal Department.
Section 2.52.060 Screening Criteria.
The following criteria shall be considered in the evaluation and selection of a personal
service contractor for personal service contracts:
A. Specialized experience in the type of work to be performed.
B. Capacity and capability to perform the work, including any specialized services
within the time limitations for the work.
C. Educational and professional record, including past record of performance on
contracts with governmental agencies and private parties with respect to cost
control, quality of work, ability to meet schedules, and contract adminilstration,
where applicable.
D. Availability to perform the assignment and familiarity with the area in \~hich the
specific work is located, including knowledge of designing or techniques peculiar
to it, where applicable.
E. Cost of the services.
F. Any other factors relevant to the particular contract.
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Section 2.52.070 Selection Process.
The following rules shall be followed in selecting a contractor for personal services:
A. Personal service contracts less than $5,000, may be awarded in any rnanner
deemed practical, including by direct selection or award by the Purchasing Agent
(or any person with purchasing authority). A personal service contract awarded
under this section may be amended to exceed $5,000 only upon approval of the
Purchasing Agent, and in no case may exceed $6,000. A personal service
contract may not be artificially divided or fragmented.
B. For personal service contracts that exceed $5,000, but do not exceed $25,000,
the department head for the department that needs the services shall award the
contract to the prospective consultant whose quote or proposal will best serve
the interests of the City, taking into account all relevant criteria found in Section
2.52.060. The Department Head shall make written findings justifying the basis
for the award.
C. For personal service contracts that will cost $25,000 or more, the Department
Head shall award the contract based on the formal competitive selection
processes found in the Model Rules. The Department Head shall make written
findings justifying the basis of the award.
D. The City official conducting the selection of a personal service contact shall
negotiate a contract with the best qualified offeror for the required services at a
compensation determined in writing to be fair and reasonable.
Section 3: Resolution No. 2000-15 is repealed.
Section 4: Resolution No. 2000-14 is repealed.
Section 5: Resolution No. 99-68 is repealed.
Section 6: Resolution No. 99-64 is repealed.
Section 7: Resolution No. 99-30 is repealed.
Section 8: Declaration of Emeraencv. The Council, finding that it is necessary for the
general welfare of the City, that the City's Public Contracting and Personal Service
Contracts Rules become effective on March 1, 2005, the effective date of the revised
state Public Contracting Code, requires that this ordinance take effect immediately upon
its passage by the Council and approval by the Mayor.
The foregoing ordinance was first read by title only in accordance with ArticlB X,
Section 2(C) of the City Charter on the ~t-day of 7.e.,6rtl~
and duly PASSED and ADOPTED this ~ day of ~~
,2005,
,2005.
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B~ensen. City Recorder
~
SIGNED and APPROVED this 2- day of H Ct-\ (~\,
,2005.
John W. Morrison, Mayor
Reviewed as to form:
{~ VV\. (~
Mike Reeder, Assistant City Attorney
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