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HomeMy WebLinkAboutOrdinances - 2001-05 - Amending Chapter 8.20 of the EWMC relating to nuisances - 5/14/2001ORDINANCENO. o{~os AN ORDINANCE OF THE CITY OF EAST WENATCHEE, WASHINGTON, AMENDING CHAPTER 8.20 OF THE EAST WENATCHEE MUNICIPAL CODE; DEFINING NUISANCES; DECLARING SUCH NUISANCES UNLAWFUL; ESTABLISHING A VOLUNTARY CORRECTION PROCEDURE; ESTABLISHING HEARING PROCEDURES; ESTABLISHING PENALTIES FOR VIOLATION AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, regulation of nuisances is authorized by RCW 35.22.280(30); and WHEREAS, prevention and correction of nuisances are necessary to protect public health and safety; now, therefore, THE CITY COUNCIL OF THE CITY OF EAST WENATCHEE, WASHINGTON DO ORDAIN AS FOLLOWS: Section 1. Chapter 8.20 of the East Wenatchee Municipal Code is hereby amended to read as follows: Sections: 8.20.010 8.20.020 8.20.030 8.20.040 8.20.050 8.20.060 8.20.070 8.20.080 8.20.090 8.20.100 8.20.110 8.20.120 Chapter 8.20 NUISANCES Construction Definitions Nuisances unlawful Exempted acts Prohibited conduct Authorized act not a nuisance Successive owners or occupant liable Abatement does not preclude action for damages Voluntary correction Notice of civil violation Hearing before the Court Abatement by the City {CDZWOOl 7548.DOC; 1/00070.150-144/}041801 8.20.130 8.20.140 Additional enforcement procedures Conflicts 8.20.010 Construction. This ordinance is an exercise of the police power of the City of East Wenatchee and is deemed necessary for the continued peace, health and welfare of the City. Therefore all of its provisions shall be liberally construed for the accomplishment of such purposes. 8.20.020 Definitions. The words and phrases used in this Chapter, unless the context otherwise indicates, shall have the following meanings: A. "Abate" means to repair, replace, remove, destroy or otherwise remedy the condition in question by such means and in such a manner and to such an extent as the enforcement officer, in his judgment, determines is necessary in the interest of the general health, safety and welfare of the community. B. "Building" means any building dwelling, structure, or mobile home, factory built house, or part thereof, built for the support, shelter or enclosure of persons, animals, chattels or property of any kind. C. "Building Materials" means and includes, but is not limited to, lumber, plumbing materials, wall board, sheet metal, plaster, brick, cement, asphalt, concrete block, roofing materials, cans of paint and similar materials. D. "Disposable package or container" means all packages or containers defined as such by rules and regulations adopted by the State of Washington Department of Ecology. E. "Enforcement Officer" means the "Code Compliance Officer" of the City of East Wenatchee or his/her designee. F. "Litter" means all waste material including, but not limited to, disposable packages or containers thrown or deposited on public or private property, including depositing handbills on vehicles or public property, but not including the waste of primary processes of mining, logging, saw milling, farming or manufacturing. G. "Person" means any individual, firm, partnership, corporation, association or other entity, public or private, whether acting by themselves or by a servant or employee. H. "Premises" means any building, lot parcel, real estate or land or portion of land whether improved or unimproved, including adjacent sidewalks and parking strips. { CDZWOOl 7548.DOC; 1/00070.150-144/}04 l 801 2 I. "Property" means any object of value that a person may lawfully acquire and hold. J. "Nuisance" means: 1. An act or omission to act, or a condition or use of property which either annoys, injures or endangers the comfort, repose, health or safety of the public; offends public decency; decreases the value of nearby property; or in any way renders other persons insecure in life or in the use of property. 2. The erecting, maintaining, using, placing, depositing, causing, allowing, leaving or permitting to be or remain in or upon any private lot, building, structure, or premises, or in or upon any street, avenue, alley, park, parkway, public water (including lakes, rivers, streams, drainage ways, and/or gulleys), or other public or private place in the City, any one or more of the following conditions, things, or acts: a. Accumulations of refuse, except a compost pile not visible from a public street, sidewalk, park, or other public area so covered or concealed as not to affect the health, safety or depreciation of adjoining property; b. Carcasses of animals not buried or destroyed within twenty-four (24) hours after death; c. All limbs of trees overhanging a public sidewalk which are less than ten (10) feet above the surface of said sidewalk, or overhanging a city street which are less than fifteen (15) feet above the surface of said street; d. The existence of any vines or climbing plants growing into or over any street, public hydrant, power or light pole; or the existence of any shrub, vine or plant growing on, around or in front of any hydrant, stand pipe, sprinkler system connection or any other appliance or facility provided for fire protection purposes in such a way as to obscure the view thereof or impair the access thereto; or obstruct or interfere with the proper diffusion from the light from any street lamp; e. Any use of property abutting on a public street or sidewalk or any use of public street or sidewalk which causes any obstruction of traffic and the free use of the streets or sidewalks; provided, that this Subsection shall not apply to events, programs or parades authorized by the City Council; f. Any poisonous or harmful substance which is reasonably accessible to persons or to animals; g. Any attractive nuisances which may prove detrimental to children which is left in any place exposed or accessible to children. This includes but is not limited to, unused or abandoned refrigerators, freezers, or like containers, or other large appliances or equipment or parts thereof; abandoned motor vehicles; any structurally unsound or unsafe fence or edifice; any unsecured or abandoned excavation, pit, well, cistern, storage tank or shaft; any lumber, trash, debris or vegetation which may prove a hazard for minors; { CDZWOOl 7548.DOC; 1/00070.150-144/}041801 3 h. The existence of any dead, diseased, infested or dying tree or other vegetation that may constitute a danger to property or persons; i. The existence of any fence or other structure which creates any traffic safety problem through obscured sight distance pursuant to EWMC 17.74.050(F) as the same exists now or may hereafter be amended. j. The existence of any fence or other structure or thing which is in a sagging, leaning, fallen, decayed or other dilapidated or unsafe condition on private property abutting or fronting upon any public street, sidewalk or place. k. The existence of any fence or other structures located in a public right of way without specific approval from the City. 1. Any accumulation of material on property including, but not limited to animal matter, ashes, bottles, boxes, broken stone, building materials which are not properly stored or neatly piled, cans, cement, crates, empty barrels, dead animals or animal waste, glass, litter, mattresses or bedding, old appliances or equipment or any parts thereof, furniture, iron or other scrap metal, packing cases, packing material, plaster, plastic, rags, wire, yard waste or debris or other objects which endanger property or public safety, or constitute a fire hazard or vermin habitat; provided that nothing herein shall prevent the temporary retention of waste in covered receptacles approved by the enforcement officer; m. Any dangerous building as defined in the Uniform Code for the Abatement of Dangerous Buildings, or any building, structure, or addition to such, commenced and left unfinished six months beyond the expiration of the building permit issued for that building or 12 months from the date of building commencement if no building permit was required to be issued; n. The non-emergency repair of an automobile, truck or other motor vehicle of any kind upon the public streets, alleys or other public property of the City; o. The erection, continuance or use of any building, room or other place in the City for the exercise of any trade, employment or manufacture which, by producing noxious fumes, offensive odors or other annoyances, is discomforting, offensive or detrimental to the health of individuals or of the public; p. Any unguarded or abandoned excavation, pit, well, or holes which would endanger health or safety. q. Dumping, depositing, placing or leaving of any litter, refuse, ashes, debris, gravel, earth, rock, stone or other material upon the banks, channels, beds or bars of any navigable water, or the felling of any tree or trees, so that the same shall in whole or in part project within the high water bank of any navigable water course, or the casting, placing, depositing or leaving of any logs, roots, snags, stumps, or brush upon the banks or in the bed or channel of any navigable water- course. 3. The keeping or maintenance in any area on private property which is clearly visible from a public street, sidewalk, park or other public area of any accumulation, collection or untidy storage of any of the following: refuse, old appliances or parts thereof; old iron, steel, aluminum or other metal; apparently { CDZWOOl 7548.DOC;l/00070.150-144/}041801 4 inoperable junk vehicles, vehicle parts, machinery or equipment; mattresses, bedding, clothing, rags, or cloth; straw, packing material, cardboard or paper; tin cans, wire, bottles, glass, cement; and wood or timber not neatly stacked or piled. This type of nuisance shall not apply to conditions completely enclosed within a building or fencing so as not to be visible from public property or to construction sites where the progress of construction is proceeding with reasonable diligence. K. "Person responsible for the violation" means any person who has an interest in or resides on the property, whether as owner, lessor, tenant, occupant or other person entitled to control, use and/or occupy the property. L. "Refuse" means vegetable offal, animal offal, discarded food, cans, bottles, waste paper, boards and boxes, tree limbs and all other waste substances from private and public establishments and from residences; but shall not include small amounts of weeds, twigs, grass, or other material resulting from the normal tending of lawns or gardens. M. "Repeat violation" means a violation of the same regulation in any location by the same person for which voluntary compliance previously has been sought or a notice of civil violation has been issued, within the immediately preceding twelve consecutive month period. N. "Structure" means that which is built or constructed, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner. 8.20.030 Nuisances Unlawful. Unless otherwise permitted by law and whenever the enforcement officer determines that any nuisance exists upon any premises, the enforcement officer may require or provide for the abatement thereof pursuant to this Chapter. 8.20.040 Exempted Acts. This Chapter shall not apply to the United States, the State of Washington, Douglas County, the City of East Wenatchee, or any of their respective officers, employees or contractors when engaged in snow removal, street cleaning, emergency repair to any street, building or structure, fire suppression, or any other emergency for the preservation of life or property. Government owned or authorized stockpiling of materials for street construction and/or maintenance activities shall be exempt from this Chapter. 8.20.050 Prohibited Conduct. It shall be unlawful for any person responsible for the violation to create, permit, maintain, suffer, carry on or allow, upon any premises, any of the acts or things declared by this Chapter to be a nuisance or to violate any of the provisions of this Chapter. {CDZWOOl 7548.DOC; 1/00070.150-144/)041801 5 8.20.060 Authorized act not a nuisance. No act which is done or maintained under the express authority of a statute or ordinance can be deemed a nuisance. 8.20.070 Successive owners or occupant liable. Every successive owner or occupant of property or premises who neglects to abate a continuing nuisance upon or in the use of such property caused by a former owner is liable therefor in the same manner as the one who first created it. 8.20.080 Abatement does not preclude action for damages. The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence. 8.20.090 A. occurring. Voluntary correction. This section applies whenever the determines that a nuisance is B. The enforcement officer shall pursue a reasonable attempt to secure voluntary correction by contacting the person responsible for the nuisance where possible, explaining the nuisance, and requesting correction. C. A voluntary correction agreement may be entered into between the person responsible for the nuisance and the City, acting through the enforcement officer 1. The voluntary correction agreement is a contract between the City and the person responsible for the nuisance under which such person agrees to abate the nuisance within a specified time and according to specified conditions. The voluntary correction agreement shall include the following: a. The name and address of the person responsible for the nuisance; and b. The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the nuisance is occurring; and c. A description of the nuisance; and d. The necessary corrective action to be taken, and a date or time by which correction must be completed; and {CDZWOO 17548.DOC; 1/00070.150-144/}041801 6 e. An agreement by the person responsible for the nuisance that the City may inspect the premises as may be necessary to determine compliance with the voluntary correction agreement; and f. An agreement by the person responsible for the nuisance that the City may abate the nuisance and recover its costs and expenses and a monetary penalty pursuant to this Chapter from the person responsible for the nuisance if terms of the voluntary correction agreement are not met; and g. An agreement that by entering into the voluntary correction agreement the person responsible for the nuisance waives the right to an appeal of the nuisance and/or the required corrective action. 2. The person responsible for the nuisance waives the right to an appeal of the nuisance and the required corrective action upon entering into a voluntary correction agreement. 3. The City shall have the right to inspect the subject property to determine compliance with the terms of the voluntary correction agreement. 4. An extension of the time limit for correction or a modification of the required corrective action may be granted by the enforcement officer if the person responsible for the nuisance has shown due diligence and/or substantial progress in abating the nuisance but unforeseen circumstances render abatement under the original conditions unattainable. 5. The City may abate the nuisance in accordance with Section 8.20.120 if the terms of the voluntary correction agreement are not met. 6. If the terms of the voluntary correction agreement are not met the person responsible for the nuisance shall be assessed a monetary penalty commencing on the date set for correction and thereafter, in accordance with Subsection E of Section 8.20.100, plus all costs and expenses of abatement, as set forth in Subsection D of Section 8.20.120. 8.20.100 Notice of civil violation. A. When the enforcement officer determines that a nuisance has occurred, or is occurring, and is unable to secure voluntary correction, pursuant to Section 8.20.090, the enforcement officer may issue a notice of civil violation to the person responsible for the nuisance. The enforcement officer may issue a notice of civil violation without having attempted to secure voluntary correction as provided in Section 8.20.090 under the following circumstances: { CDZWOOl 7548.DOC; 1/00070.150-144/)041801 7 1. 2. 3. When an emergency exists; or When a repeat violation occurs; or When the violation creates a situation or condition which cannot be corrected; or 4. When the person knows or reasonably should have known that a nuisance is occurring; or 5. When the person cannot be contacted or refuses to communicate or cooperate with the City in correcting the violation. B. The notice of civil violation shall include the following: 1. The name and address of the person responsible for the nuisance; and 2. The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the nuisance is occurring; and 3. A description of the nuisance; and 4. The required corrective action and a date and time by which the correction must be completed after which the City may abate the nuisance in accordance with Section 8.20.120; and 5. The date, time and location of an appeal hearing before the East Wenatchee Municipal Court shall be scheduled not less than ten (10) calendar days and not more than thirty (30) calendar days from the date the notice of abatement is issued; and 6. A statement indicating that the hearing will be canceled and no monetary penalty will be assessed if the enforcement officer approves the completed, required corrective action at least forty-eight (48) hours prior to the hearing; and 7. A statement that the costs and expenses of abatement incurred by the City pursuant to Subsection D of Section 8.20.120 and a monetary penalty as specified in Subsection E of Section 8.20.100 may be assessed against the person to whom the notice of civil violation is issued as specified and ordered by the East Wenatchee Municipal Court. C. The enforcement officer shall serve the notice of civil violation upon the person to whom it is issued, either personally or by mailing, certified, return receipt requested, a copy of the notice of abatement to such person at his/her last known address. If the person to whom the notice is issued cannot after due diligence be personally served within Douglas County and if an address for mailed service cannot after due diligence be ascertained, notice shall be served by posting a copy of the notice of abatement conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made, and if by posting, the facts showing that due diligence was used in attempting to serve the person personally or by mail. {CDZWOOl 7548.DOC;l/00070.150-144/}041801 8 D. No extension of the time specified in the notice of civil violation for correction of the nuisance may be granted, except by order of the East Wenatchee Municipal Court. E. The monetary penalty for each day the nuisance is permitted to continue or portion thereof shall be as follows: 1. 2. 3. 4. 5. ($500. 00) per day. First day One Hundred Dollars ($100.00); Second day Two Hundred Dollars ($200.00); Third day Three Hundred Dollars ($300.00); Fourth day Four Hundred Dollars ($400.00); Each additional day beyond four days, Five Hundred Dollars F. Payment of a monetary penalty pursuant to this Chapter does not relieve the person to whom the notice of civil violation was issued of the duty to correct the nuisance. G. The monetary penalty constitutes a personal obligation of the person to whom the notice of civil violation is issued. Any monetary penalty assessed must be paid to the City within ten (10) calendar days from the date of mailing of the East Wenatchee Municipal Court's decision and order or a notice from the City that penalties are due. The City Attorney or his/her designee is authorized to take appropriate action to collect the monetary penalty, plus reasonable attorneys' fees and costs incurred in collecting said monetary penalty. 8.20.110 Hearing before the Court. A. Notice. A person to whom a notice of civil violation is issued will be scheduled to appear before the East Wenatchee Municipal Court not less than ten (10) calendar days nor more than thirty (30) calendar days after the notice of civil violation is issued. Continuances may be granted at the discretion of the court for good cause shown. B. Prior correction of violation. The hearing will be canceled and no monetary penalty will be assessed, other than the court filing fee, if the enforcement officer approves the completed required corrective action prior to the scheduled hearing. C. Procedure. The court shall conduct a hearing on the civil violation pursuant to the current applicable rules of civil procedure for courts of limited jurisdiction. The enforcement officer and the person to whom the notice of civil violation was directed may participate as parties in the hearing and each party may call {CDZW0017548.DOC;l/00070.150-144/}041801 9 witnesses. The City shall have the burden of proof to demonstrate by a preponderance of the evidence that a violation has occurred and that the required corrective action is reasonable under the circumstances. The determination of the enforcement officer as to the need for the required corrective action shall be accorded substantial weight by the court in determining the reasonableness of the required corrective action. D. Decision of the Court. 1. The court shall determine whether the City has established by a preponderance of the evidence that a violation has occurred and that the required correction is reasonable under the circumstances, and shall affirm, vacate, or modify the City's decisions regarding the alleged violation and/or the required corrective action, with or without written conditions. 2. The court shall issue an order to the person responsible for the violation which contains the following information: a. The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decision; b. The required corrective action; c. The date and time by which the correction must be completed; d. The monetary penalties assessed based on the criteria in Section 8.20.110(D)(3); and e. The date and time after which the City may proceed with abatement of the unlawful condition if the required correction is not completed. 3. Assessment of monetary penalty. Monetary penalties assessed by the court shall be in accordance with the monetary penalty in Section 8. 20. lOO(E). a. The court shall have the following options in assessing monetary penalties. ( 1) Assess monetary penalties beginning on the date the notice of civil violation was issued and thereafter; or (2) Assess monetary penalties beginning on the correction date set by the enforcement officer or an alternate correction date set by the court and thereafter; or {CDZW0017548.DOC;l/00070.150-144/)041801 10 (3) Assess less than the established monetary penalty set forth in Section 8.20. lOO(E) based on the criteria of Section 8.20.110(D)(3)(b); or ( 4) Assess no monetary penalties. b. In determining the monetary penalty assessment, the court shall consider the following factors: (1) Whether the person responded to the enforcement officer's attempts to contact the person, and cooperated to correct the violation; (2) Whether the person failed to appear at the hearing; (3) Whether the violation was a repeat violation; ( 4) Whether the person showed due diligence and/ or substantial progress in correcting the violation; and (5) Any other relevant factors. c. The court may double the monetary penalty schedule if the nuisance violation is a repeat violation. In determining the amount of the monetary penalty for repeat violations the court shall consider the factors set forth in Section 8.20.110(D)(3)(b). E. Failure to appear. If the person to whom the notice of civil violation was issued fails to appear without lawful excuse at the scheduled hearing, the court shall enter an order with findings pursuant to Section 8.20.110(D)(2) and assess the appropriate monetary penalty pursuant to Section 8.20.l10(D)(3). The City may enforce the court's order and recover all related expenses, including attorney fees, costs of the hearing and any monetary penalty from that person. F. Appeal to Superior Court. Any appeal of the decision of the Court shall be pursuant to the then-current Rules for Appeal from Courts of Limited Jurisdiction (RALJ). 8.20.120 Abatement by the City. A. Abatement. The City may abate a nuisance when: 1. The terms of voluntary correction agreement pursuant to Section 8.20.090 have not been met; or {CDZWOOI 7548.DOC;l/00070.150-144/}041801 11 2. A notice of civil violation has been issued pursuant to Section 8. 20. 100 and a decision and order has been issued pursuant to Section 8. 20. 110 and the required correction has not been completed by the date specified in the decision and order; or 3. The condition is subject to summary abatement as provided for in Subsection B of this Section. B. Summary Abatement. Whenever a nuisance is occurring which constitutes an immediate and emergent threat to the public health, safety or welfare or to the environment, the City may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the person responsible for the nuisance as soon as reasonably possible after the abatement. C. Authorized action by City. Using any lawful means, the City may enter upon the subject property and may remove or correct the condition which is subject to abatement. The City may seek such judicial process as it deems necessary to effect the removal or correction of such condition. D. Recovery of Costs and Expenses. The costs, including incidental expenses, of correcting the violation shall be billed to the person responsible for the violation and/or the owner, lessor, tenant or other person entitled to control, use and/or occupy the property and shall become due and payable to the City within ten (10) calendar days billing. The term "incidental expenses" includes but is not limited to: 1. Personnel costs, both direct and indirect, including attorneys' fees and costs: 2. Costs incurred in documenting the violation; 3. Hauling, storage and disposal expenses; and 4. Actual expenses and costs of the City in preparing notices, specifications and contracts, and in accomplishing and/ or contracting and inspecting the work; and 5. The costs of any required printing and mailing. E. Obstruction Violation. Any person who knowingly obstructs, impedes, or interferes with the City or its agents, or with the person responsible for the nuisance in the performance of duties imposed by this chapter, or a decision and order issued by the East Wenatchee Municipal Court or an agreement between the City and the person responsible for the nuisance, is guilty of a misdemeanor and subject to the penalty as set forth in Section 1.20.010 of the East Wenatchee Municipal Code. 8.20.130 Additional enforcement procedures. The provisions of this Chapter are not exclusive, and may be used in addition to other enforcement alternatives authorized by the East Wenatchee Municipal Code or state law. {CDZWOOl 7548.DOC;l/00070.150-144/)041801 12 8.20.140 Conflicts. In the event of a conflict between this Chapter and any other provision of the East Wenatchee Municipal Code or other City ordinance providing for a civil penalty, this Chapter shall control. Section 2. Severability. If any section, sentence, clause or phrase of this Ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or the constitutionality of any other section, sentence, clause or phrase of this Ordinance. Section 4. Effective Date. This Ordinance shall take effect and be in full force five (5) days after this ordinance or a sutntnary thereof consisting of the title is published. ATTEST I AUTHENTICATED: .f:n11?L~~ CITY CLERK, DANA BARNARD APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY FILED WITH THE CITY CLERK: q,')P.v l OI PASSED BY THE CITY COUNCIL: rof ill/0 1 PUBLISHED: :s IL 7 / 0 1 EFFECTIVE DATE: S j~&,l o I ORDINANCE NO. DI -05 {CDZWOOl 7548 .DOC;l/00070.150-144/}041801 13 SUMMARY OF ORDINANCE NO. 0 I -05 of the City of East Wenatchee, Washington On the / L(" day of ----~fi_1aq~'-I-' 2001, the City Council of the City of East Wenatchee, Washington, passed Ordinance No. O 1-05. A summary of the content of said Ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF EAST WENATCHEE, WASHINGTON, REPEALING CHAPTER 8.20 OF THE EAST WENATCHEE MUNICIPAL CODE AND ADDING A NEW CHAPTER 8.20 TO THE EAST WENATCHEE MUNICIPAL CODE DEFINING NUISANCES; DECLARING SUCH NUISANCES UNLAWFUL; ESTABLISHING A VOLUNTARY CORRECTION PROCEDURE; ESTABLISHING HEARING PROCEDURES; ESTABLISHING PENALTIES FOR VIOLATION AND ESTABLISHING AN EFFECTIVE DATE. The full text of this Ordinance will be mailed upon request. DATED this ii.-l~day of ttlaer, 2001. .1~1ll1 a !3cuLNA oL! CITY CLERK, DANA BARNARD {CDZWOOl 7548.DOC;l/00070.150-144/}041801 14 VOLUNTARY CORRECTION AGREEMENT THIS AGREEMENT ("Agreement") is entered into this date by and between the City of East Wenatchee ("City") acting through the City Code Compliance Officer and ("Owner") who owns real property located at --------, in the City of East Wenatchee, Washington, which is legally described as follows: In consideration of the mutual covenants and agreements specified herein, the parties agree as follows: 1. Nuisance Abatement. The City and Owner agree the conditions set forth in Paragraph 2 of this Agreement must be abated, in the manner set forth in Paragraph 3 of this Agreement on or before the day of ______ , 200 _. 2. Nuisance Violation. The condition on the property which is the subject of this Agreement and constitutes a violation of Section(s) ___ of the East Wenatchee Municipal Code and which must be abated is: See Exhibit "A". 3. Manner of Abatement. The condition on the property which is the subject of this Agreement must be abated by taking the following actions: Remove all items noted on Exhibit "A" from the property described above on or before the date set forth in Paragraph 1 of this Agreement. { CDZWOOl 7553.DOC;1/00070.150144/}041801 1 4. Extension of Abatement Period/Waiver. In consideration for granting this extended abatement period, the Owner understands and agrees he/she waives the right to appeal: 1) the City's determination that a violation of the East Wenatchee Municipal Code exists on the Owner's property; 2) the penalty for violation set forth in Paragraph 6 of this Agreement; and 3) the required corrective action. THIS WAIVER IS VOLUNTARILY AND FREELY MADE WITH FULL KNOWLEDGE OF ITS CONSEQUENCES, WHICH INCLUDES THE LOSS OF RIGHT TO APPEAL THIS DETERMINATION OF THE CITY MUNICIPAL CODE VIOLATION, PENALTY AND THE REQUIRED CORRECTIVE ACTION. 5. Inspection. The Owner consents and agrees the City shall have the right to enter and inspect the subject property to determine compliance with the terms of this Voluntary Correction Agreement on or after the date for compliance set forth in Paragraph 1 has passed. 6. Failure to Act/City Abatement/Penalty Assessment/Cost of Abatement. The Owner consents and agrees that, if the condition giving rise to this Agreement is not abated by the time provided in Paragraph 1 and in the manner prescribed in Paragraph 3, that the City shall assess a monetary penalty of $ for violation of East Wenatchee Municipal ---- Code Section(s) ____ without the need for further court proceedings. The City or its agents and contractors may enter the property, on no less than two (2) days notice to the Owner and abate the violation. The City shall be responsible for restoring the property to the condition as existed prior to the violation unless that abatement inherently affects the condition of the property. Owner agrees to hold the City harmless for any damage to the Property which may occur due to the City's abatement actions. Once the violation has been abated by the City, the Owner upon receipt of an invoice from the City shall be responsible for all reasonable { CDZWOOl 7553.DOC; 1100070.150144/}041801 2 costs of abatement to the City in the amount of such reasonable costs and any interest which may accrue thereon. The costs shall be paid to the City within thirty (30) days from the date of the invoice. In the event the costs are not paid when due, interest shall accrue on the amount due at ten percent (10%) per annum. 7. Agreed Lien. The City and Owner agree that if the costs to abate incurred by the City are not paid by the Owner within thirty (30) days from the date of the invoice pursuant to paragraph 6 above, the City may file a lien against the Owner's property which shall be continuing and may be foreclosed upon by the City in the same manner for foreclosure of a mechanic's or materialmen's lien. The lien shall be continuing and shall not terminate until paid in full. The value of the lien shall increase at the rate of ten percent ( 10 % ) per annum, the interest rate set forth in paragraph 6 above. The lien may be filed against the property located at in the City of East Wenatchee, Douglas County, Washington, legally described as follows: 8. Remedies. The Owner agrees the City shall have the right to request specific performance of this Agreement, and to pursue any and all remedies available in law or equity, and that any and all remedies of the City in connection with the abatement of the violation and reimbursement of all costs incurred therefor are cumulative in favor of the City. 9. Recording. This Agreement may be recorded with the Douglas County Auditor. {CDZW0017553.DOC;l/00070.150144/}041801 3 10. Notices. Any notices to be given hereunder by either Party may be affected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Notices delivered personally shall be deemed communicated as of actual receipt, mailed notices shall be deemed communicated as of the effective day of mailing, if prepaid. All notices shall be sent to the following addresses, unless actual notice in writing of a different address for notices is received by the other Party: CITY: City of East Wenatchee 271 Ninth Street N .E. East Wenatchee, WA 98802 Attention: City Code Compliance Officer OWNER: Attention: 11. Waiver of Breach. The City's failure to insist upon the strict performance of any provision of this Agreement shall not be construed as depriving the City of the right to insist upon strict performance of such provision in the future. 12. Attorneys' Fees and Costs. In the event it is necessary for either Party to utilize the services of an attorney to enforce any of the terms of this Agreement, to collect penalties owed, to collect abatement costs, or to foreclose upon the agreed lien, such Party shall be entitled to compensation for its reasonable attorneys' fees and costs. In the event of litigation regarding any of the terms of this Agreement, the substantially prevailing Party shall be { CDZWOOl 7553.DOC;1/00070.150144/}041801 4 entitled, in addition to other relief, to such reasonable attorneys' fees and costs as determined by the court. 13. Interpretation. This Agreement has been submitted to the scrutiny of all Parties and their counsel, if desired, and it shall be given a fair and reasonable interpretation in accordance with its words, without consideration to or weight given to its being drafted by any Party or its counsel. All words used in the singular shall include the plural; the present tense shall include the future tense; and the masculine gender shall include the feminine and neuter genders. 14. Corporate Authority: Binding Signatures. Each of the individuals executing this Agreement on behalf of an entity warrants that such individual is an authorized signatory of the entity for which they are signing, and has sufficient corporate authority to execute this Agreement. 15. Entire Agreement: Amendments. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings among the parties with respect thereto. This Agreement may be amended only by an agreement in writing signed by the parties. CITY OF EAST WENATCHEE OWNER By: By: Jeff Morrison, City Code Compliance Officer Date: { CDZWOOl 7553.DOC; 1/00070.150144/}041801 5 STATE OF WASHINGTON) )ss. County of Douglas ) I certify that I know or have satisfactory evidence that Jeff Morrison is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the City Code Compliance Officer of the City of East Wenatchee to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated this day of -------- STATE OF WASHINGTON) )ss. County of Douglas ) (printed name) NOTARY PUBLIC, State of Washington My appointment expires ----- I certify that I know or have satisfactory evidence that is the person who appeared before me, and said persons acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it to be his/her free and voluntary act for the uses and purposes mentioned in the instrument. DA TED this day of { CDZWOOl 7553.DOC; 1/00070.150144/}041801 ------- (printed name) NOTARY PUBLIC, State of Washington My appointment expires ---- 6