HomeMy WebLinkAboutAdmin Order 58-11-09-FADMINISTRATIVE ORDER NO. 58-11-09-F
of the
City Manager of the City of Eugene
AMENDMENT OF STORMWATER SYSTEM ADMINISTRATIVE RULE
AND REPEAL OF ADMINISTRATIVE ORDER NO. 58-02-01-F.
The City Manager of the City of Eugene finds that:
A. Section 2.019 and Chapter 6 of the Eugene Code, 1971, authorize the City
Manager to adopt rules deemed necessary for the administration and enforcement of the
provisions of the Eugene Code, 1971.
B. Pursuant to that authority, on February 28, 2002, Administrative Order No. 58-02 -
01 -F was issued amending and adopting the Stormwater System Administrative Rule.
C. On October 17, 2011, I issued Administrative Order 58 -11 -09 proposing to amend
the Stormwater System Administrative Rule to apply provisions within the Rule to the operation
and maintenance of private vegetated and mechanical stormwater facilities. The amendments
include revisions to Sections B (Purpose), C (Applicability), and E (Determination of Amount of
Civil Penalty), and the addition of Section H (Reports Required by EC 6.615(4)) to the Rule.
D. Notice of the proposed amendment was given by making copies of the Notice
available to any person who had requested such notice, and to any business which possessed a
license issued pursuant to the Rule. Notice was also published in the Register -Guard newspaper
on November 7, 8, 9, 10, and 11, 2011. The Notice advised that the Rule amendments could be
reviewed at the City of Eugene Parks and Open Space Division, 1820 Roosevelt Blvd, Eugene,
Oregon, 97402, during normal business hours, and that written comments would be received for
a period of 15 days from the date of the first publication of the Notice. No comments were
received within the time or in the manner provided in the Notice.
Based upon the above findings, which are adopted, and pursuant to the authority
contained in Section 2.019 and Chapter 6 of the Eugene Code, 1971, Administrative Order No.
58- 02 -01 -F is repealed as of the effective date of this Order, and the Stormwater System
Administrative Rule is amended to provide as follows:
STORMWATER SYSTEM ADMINISTRATIVE RULE
A. Definitions
In addition to the definitions set forth in Sections, 6.340, 6.406, of the Eugene Code,
1971, as used herein, the following words and phrases mean:
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City stormwater system Those stormwater facilities located on City -owned
property, City right -of -way, City easements and any stormwater facility the City is
contractually or legally obligated to operate and maintain, including but not limited to:
1. An open drainage way serving a drainage basin which has been
accepted by the City;
2. A pipe or sewer and its related appurtenances which carries
stormwater and have been designed and constructed expressly for use by the
general public and accepted by the City;
3. Streets, curbs, gutters, and other surfaces in the public way which
are designed to convey stormwater;
4. Roadside drainage ditches along unimproved City streets, except
for access drive culverts smaller than 24 inches in diameter; and
5. Flood control and stormwater quality facilities (levees, dikes,
overflow channels, detention basins, retention basins, dams, pump stations,
groundwater recharging basins, wetlands, etc.) that have been designed and
constructed expressly for use by the general public and accepted by the City.
Clean -uu The containment and/or removal of any substance and the mitigation
of damage to property or the environment to the satisfaction of federal, state, and local
enforcement personnel.
Discharge Deposition or release of any substance other than stormwater to the
city stormwater system, whether deliberate or as an unintended result of any action or
failure to act. Discharges include but are not limited to surface runoff, dumping, leaching
by stormwater, point source connections, and spilling of pollutants.
Enforcement action Stop Work Orders, Cease and Desist Orders, Citations, Civil
Penalties, Administrative Compliance Orders, or Abatement actions issued, assessed, or
billed against a responsible party.
Enforcement officer The Director of the City's Public Works Department, or his
or her designee.
Hindered Any action which inhibits the ability of City staff to investigate or
mitigate illegal/improper discharges to the city stormwater system. This includes, but is
not limited to: denying access to a facility to City staff or contract workers attempting to
investigate or contain a discharge; providing false information; withholding information
such as product identification, time of spill, source of material, or quantity of material
discharged.
Ille ag ylmproper discharge Factors which constitute an improper /illegal
discharge include, but are not limited to:
1. Actions or the lack thereof that create an immediate potential for
pollutants to enter the city stormwater system.
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2. Failure to maintain a private system to prevent pollutants from
entering the city stormwater system.
3. Discharges from a point source prohibited by either local, state, or
federal law. This includes discharges once allowed by these laws which are now
prohibited.
4. Intentional dumping of waste products into (a) the city stormwater
system; or (b) a private system which, if the private system is not cleaned or the
situation mitigated, creates the potential for pollutants to enter the city stormwater
system.
5. Pollutants leached by rainwater from stored materials or from
leaking or spilled products which are then carried by surface runoff or other
means to the city stormwater system.
6. Release of pollutants due to: washing spilled materials into the city
stormwater system or to a private system which, if the private system is not
cleaned or the situation mitigated, creates the potential for pollutants to enter the
city stormwater system; failure to clean-up or mitigate a spill; failure to store
materials under cover; cleaning equipment so as to allow the washwater to enter
the city stormwater system.
7. Discharges in violation of a general or individual NPDES
Stormwater or Wastewater Discharge permit.
8. Discharges that violate the state building code, other state laws,
federal law, the Eugene Code, 1971, or adopted City policies.
9. Discharges in violation of the City of Eugene NPDES Stormwater
Discharge permit.
In the event that a release involves illegal/improper discharge to the city stormwater
system at more than one point, each individual point of illegal/improper discharge may be
considered as a separate violation regardless of whether the release is a result of a
singular incident.
Discharges in compliance with an NPDES stormwater permit and authorized by the City
of Eugene are not considered improper or illegal.
Industrial waste Waste generated from a source or activity other than related to a
single or multiple dwelling unit, including waste generated by commercial use of a
residential unit.
Maior effort The responsible person has taken all feasible steps to contain,
mitigate, and clean-up any discharged substance. There must have been active, physical
effort which results in significant improvement of the situation. Verbal communication is
not sufficient by itself, but may be considered as part of the necessary effort.
Minor effort The responsible person has taken few steps to contain, mitigate, or
clean-up any discharged substance. Due to the lack of active, physical effort, no
significant improvement in the situation is made and/or a significant opportunity to
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further contain the discharge or mitigate the situation was missed. Verbal
communication is not sufficient by itself, but may be considered as a part of the necessary
effort.
NPDES permit National Pollution Discharge Elimination System permit issued-
pursuant to ORS 468.740 and the Clean Water Act.
Person/Party (As in Person Responsible/Responsible Person/Responsible Parry.)
Any individual, partnership, joint - venture, firm, company, cooperative, corporation,
association, joint stock company, trust, estate, governmental entity or any other legal
entity. The masculine shall include the feminine and the singular shall include the plural.
Prior violation Similar incidents (i.e., stormwater pollution related), whether or
not enforcement actions were pursued.
Release Any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing of substances to the
environment including the abandoning or discarding of debris, barrels, containers,
underground storage tanks, and other closed receptacles. This excludes:
(a) Any release which results in exposure to a person solely
within a work place, with respect to a claim that the person may assert
against the person's employer under ORS chapter 656;
(b) Emissions from the engine exhaust of a motor vehicle,
rolling stock, aircraft, vessel or pipeline pumping station engine;
(c) Any release of source, by- product or special nuclear
material from a nuclear incident, as these terms are defined in the Atomic
Energy Act of 1954, as amended, if such release is subject to requirements
with respect to financial protection established by the Nuclear Regulatory
Commission under section 170 of the Atomic Energy Act of 1954, as
amended, or, for the purposes of any removal or remedial action, any
release of source by- product or. special nuclear material from any
processing site designated under section 102(a)(1) or 302(a) of the
Uranium Mill Tailings Radiation Control Act of 1978;
(d) A discharge in accordance with federal, state, or local
permits of the Lane Regional Air Pollution Authority, with a National
Pollutant Discharge Elimination System Permit, with waste discharge
requirements established by the Oregon Department of Environmental
Quality (DEQ), or with the industrial - wastewater pretreatment
requirements of the Industrial Source Control Section of the City's Public
Works Department's Wastewater Division;
(e) The normal application of fertilizer;
(f) Application of pesticides as defined by ORS 634, when
such application is made within the provision of applicable state and
federal regulations;
(g) Application of agricultural lime, gypsum and other
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agricultural/horticultural soil amendments when made for that purpose and
according to current industry practice; and
(h) Application of water -based paint, when used as athletic
field marking.
Removal Actions taken to eliminate, cleanup, or remove a released pollutant;
such actions as may be necessary due to the threat of a release of a pollutant; such actions
as may be necessary to monitor, assess, and evaluate a release, or threat of release, of a
pollutant; the disposal of removed material; other actions as may be necessary to prevent,
minimize, or mitigate damage to the public health, safety, environment, natural resources
and/ or welfare which may otherwise result from a release, or threat of release, of a
pollutant; provision of security fencing or other measures to limit access; provision of
alternative drinking and household water supplies; temporary evacuation and housing of
threatened individuals.
Removal action costs Reasonable costs which are attributable to or associated
with a removal action at a facility, including but not limited to the costs of administration,
investigation, legal or enforcement activities, contracts and health studies.
Significant (As in significant threat, significant consequence.) Factors that
constitute a significant threat or significant consequence include, but are not limited to:
1. Discharge would result in a spill of reportable quantity as defined
by the Department of Environmental Quality, Oregon Fish and Wildlife, or other
state or federal agencies.
2. Discharge would have visible, acute, or chronic impact on the
environment (wildlife, plants, surface water), property or health.
3. Discharge would noticeably lower aesthetic value of affected area.
4. Discharge would impact multiple uses of surface waters or affected
area.
5. Discharge is classified as a hazardous substance as defined by
Section 6.340 of the Eugene Code, 1971.
Stormwater violations Logged violations of stormwater related statutes, rules,
orders, or permits by a responsible party regardless of whether enforcement actions were
pursued.
B. Purpose
Provisions of the Eugene Code, 1971, the City's NPDES stormwater permit, and the
City's Comprehensive Stormwater Management Plan (CSWMP) prohibit improper connections
and illegal discharges to the City's stormwater system. It is the intent of these rules to provide an
effective enforcement program that will discourage violations and mitigate the effects of a
current violation. It is also the intent of these rules to ensure that stormwater management
facilities are operated and maintained in a manner that protects life and property from flood and
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drainage hazards, protect water quality, and protect the waterways in the headwaters area from
the erosive effects of runoff.
C. Applicability
These rules, and the enforcement procedures contained herein apply to violations of
Sections 6.007 (Nuisances), 6.010 (Nuisances), 6.401 to 6.481 (Sewerage Systems and
Wastewater Service), 6.600 to 6.610 (Stormwater Service), 6.615 (Stormwater Facility Operation
and Maintenance), 6.805 (Littering), and 6.810 (Prohibited Deposits in the Millrace), of the
Eugene Code, 1971.
D. Administrative Civil Penalty
1. The enforcement officer is authorized to impose an administrative civil penalty
upon a responsible person for a violation of the provisions of the Eugene Code, 1971 set forth in
paragraph C above, or the regulations adopted thereunder. Prior to imposition of an
administrative civil penalty the enforcement officer or designee shall provide the responsible
person with written notice of the violation and an opportunity to correct the violation of not less
than five days. However, if the violation is intentional, knowing, repetitive, or involves Sections
6.010, 6.446, 6.805, or 6.810 of the Eugene Code, 1971, no written notice or opportunity to
correct is required prior to imposition of the administrative civil penalty.
2. If the violation has not been corrected in the manner or within the time required in
the written notice of violation, or if the violation is intentional, knowing, or repetitive, the
enforcement officer may issue a Notice of Civil Penalty.
3. The Notice of Civil Penalty shall:
(a) Be in writing, signed by the enforcement officer;
(b) Describe the nature of the violation and specify the section of the Eugene
Code, 1971 or provision of these Regulations violated;
(c) Specify the amount of penalty imposed;
(d) State, as applicable, either:
1. The date on which the order to correct violation was issued and the
date by which correction was to be made; or
2. If the Notice of Civil Penalty is issued without prior written notice
of violation, a short and plain summary of the basis for concluding that the
violation was intentional, knowing, or repetitive;
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(e) State the starting date of the penalty. Each day that the violation continues
to exist is a separate violation for which the penalty will be assessed. The penalty
assessments will continue daily until the corrections are made; and,
(f) State that the responsible person receiving the Notice of Civil Penalty has
the right to appeal to a hearings officer within 15 days after the Notice of Civil Penalty is
served on the responsible person.
4. The amount of civil penalty assessed shall be determined in accordance with
paragraph E of these rules.
5. The Notice of Civil Penalty shall be mailed to a responsible person by certified
mail, return receipt requested, and by regular mail, or served personally on a responsible person.
6. The Notice of Civil Penalty shall be deemed served for purposes of any time
computations hereunder on: the date the notice is served personally on the responsible person;
three days after the date the notice is mailed to the responsible person at an address within the .
state of Oregon; or seven days after the date the notice is mailed to a responsible person outside
of this state.
7. Upon receipt of Notice of Civil Penalty Assessment, the responsible person may
request a conference with the City Manager or enforcement officer. Prior to the time the civil
penalty becomes final, the City Manager or enforcement officer may compromise or settle the
civil penalty assessment where authorized under Section 2.582 of the Eugene Code, 1971 upon
finding the action constituting the violation was accidental and the responsible person
immediately took all feasible actions to remedy the violation. A request under this paragraph .
shall not act as a stay, or otherwise affect the filing or processing of an appeal under paragraph G
of these rules.
8. The civil penalty shall become final upon expiration of the time for filing an
appeal, unless a responsible person has properly filed an appeal pursuant to Section 2.021 of the
Eugene Code, 1971 and paragraph G of these rules. If appealed, the penalty shall become final,
if at all, upon the hearing official's decision affirming the imposition of the civil penalty.
E. Determination of Amount of Civil Penalty
Notwithstanding the provisions of Administrative Rule R- 2.018, the amount of the
administrative civil penalty to be assessed under Section D shall be determined in accordance
with the following formula, as described herein.
(a) The dollar amount of the assessment is calculated by multiplying the
amount of the BASE (subsection (b)) by "G" (subsection (c)) and multiplying that by
$20.00. Notwithstanding this formula, the maximum assessment for a violation for a
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single day shall be as established as the maximum amount that may be assessed under
Section 2.018 of the Eugene Code, 1971 in effect at the time the violation occurs.
(b) The BASE is "H" multiplied by the sum of "V" plus "C" where:
1. "H" is the history of the actions and efforts undertaken by the
responsible party to correct the violation. The value of "H" shall be:
a. 1, if the responsible party could not be contacted at the time
of the incident.
b. 1, if no action is possible to mitigate the situation.
C. 1, if the responsible party made a major effort to correct the
violation and minimize impacts within the time frame set by the
enforcement officer.
d. 2, if the responsible party made a minor effort to correct the
violation and minimize impacts within the time frame set by the
enforcement officer, or when they became aware of the discharge causing
the violation.
e. 2, if the responsible party made a major effort to correct the
violation and minimize impacts outside the time frame set by the
enforcement officer, and/or only after repeated requests by the
enforcement officer for action.
f. 3, if the responsible party made a minor effort to correct the
violation and minimize impacts outside the time frame set by the
enforcement officer, and/or only after repeated requests by the
enforcement officer for action.
g. 4, if mitigation action is possible but not undertaken by the
responsible party after being made aware of the violation by federal, state,
or local regulatory agency personnel, or when they became aware, by any
means, of the discharge causing the violation.
h. 5, if the responsible party hindered investigative and/or
clean-up efforts.
2. "V" is the extent of prior violations of stormwater related statutes,
rules, orders, or permits by a responsible party. The value of "V" shall be equal
to the number of stormwater violations documented within the past 10 years
regardless of whether enforcement actions were pursued. The value of "V" shall
be 1, if the responsible party fails to file a stormwater inspection and maintenance
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log(s).
3. "C" is the level of care exercised by the responsible parry. It is
based on whether the cause of the violation was an unavoidable accident,
negligence, or a reckless or intentional act. The value of "C" shall be:
a. 1, if the violation was an unavoidable accident or was
caused by others. This category is used when the civil penalty is assessed
either (a) against a party who is responsible for the property, such as an
owner, but who was not physically in charge of the property when the
violation occurred; or (b) against the party who caused the violation but
could not have reasonably foreseen that a violation would occur.
b. 2 -3, if the violation was caused by a responsible party's
negligence. Negligence is the failure to exercise the care that a prudent
person would exercise under the circumstances. This category is used
where a party either caused a violation by carelessness or was negligent in
taking the necessary corrective or preventative steps to reduce the
possibility of the violation occurring.
C. 4, if the violation was due to reckless or intentional acts. A
reckless act is marked by a lack of proper caution, or carelessness of
consequences. An intentional act is an act done by purpose or design. The
responsible party does not have to act with the intention to pollute or cause
a violation for an act to be considered intentional, only that their action
that created a violation was in and of itself intentional.
(c) "G" is the gravity and magnitude of the violation. The value of "G shall
be determined and set at the time the enforcement officer initiates compliance efforts.
This value shall not be decreased if, after compliance efforts are initiated, actions are
taken to reduce the gravity of the situation. The value of "G" shall be from 1 through 10
and shall be based on the following considerations:
a. The significance of the violation due to the quantity and/or
type of substance released.
b. The potential for further dispersion of the released
substance within the clean-up and/or mitigation time frame established by
the enforcement officer.
C. I The immediate threat posed to life, property, or the
environment.
d. The proximity to the City's stormwater system, and related
natural resources.
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e. Weather conditions as they relate to the impact of the
release.
f. The necessity for immediate action to capture the released
substance, prevent further dispersal of the released substance, or to prevent
damage to property and/or the environment.
A violation may rate a "G" value of 1 if there is no immediate or significant threat
to life, property, and/or the environment due to the quantity and/or type of
substance released; or if there is low potential for further dispersion of a released
substance.
A violation may rate a "G" value of 10 if there is an immediate or significant
threat to life, property, and/or the environment due to the quantity and/or type of
substance released. To protect both public and environmental health the situation
cannot be tolerated and immediate actions are necessary in order to capture and
contain a released substance, prevent further dispersion of a released substance,
and/or prevent additional damage to life, property, and/or the environment.
F. Enforcement
1. Abatement If a discharge into the city stormwater system is occurring in
violation of Sections 6.010, 6.446, 6.805, and 6.810 of the Eugene Code, 1971, and the
enforcement officer finds that failure to act promptly will seriously prejudice the public health,
welfare, or environment, the enforcement officer may initiate abatement proceedings pursuant to
Sections 6.005 to 6.115 of the Eugene Code, 1971, and may, at the same time, issue a Notice of
Civil Penalty, without issuing any prior orders to correct or attempting to secure voluntary
compliance or correction of the violation.
2. Cease and Desist and/or Stop Work Order Upon finding a discharge is occurring
in violation of the Sections of the Eugene Code, 1971 referenced in paragraph C of this rule, the
enforcement officer may issue to the responsible person a cease and desist and/or stop work
order, whichever is applicable. The order need not require the cessation of all operations on the
premises, only those activities causing or contributing to the illegal /improper discharge. In
addition to any other penalties that may be imposed, failure to comply with the. enforcement
officer's order issued under this subsection constitutes a violation of these rules and the
provisions of Chapter 6 of the Eugene Code, 1971 under which they are promulgated, punishable
as set forth in Sections 6.990, 6.992, and 6.995 of the Eugene Code, 1971.
3. Administrative Civil Penalty Following the procedures set forth in paragraphs D
and E of these rules, the enforcement officer may impose an administrative civil penalty upon a
responsible person for violation of the provisions of the Eugene Code, 1971 set forth in
paragraph C above. Failure to pay the administrative civil penalty within ten days after it
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becomes final constitutes a violation of these rules and the Eugene Code, 1971. Each day
thereafter that the penalty remains unpaid shall constitute a separate violation. In addition to any
other enforcement mechanisms authorized by the Eugene Code, 1971, these rules, or federal or
state law, the enforcement officer may withhold issuance of requested licenses or permits, issue a
stop work or cease and desist order, or revoke or suspend any issued licenses or permits if the
responsible person fails or refuses to pay an administrative civil penalty imposed pursuant to
these rules. If the violation resulting in the imposition of the administrative civil penalty
occurred on real property and the penalty remains unpaid for a period of 30 days or more after
becoming final, the full amount of the unpaid penalty and/or fine shall be assessed against the
real property upon which the violation occurred and entered as a lien in the docket of City liens.
Notice of the assessment and docketing shall be given to the responsible person at the time the
assessment is made. Interest at the rate prescribed by Section 2.022 of the Eugene Code, 1971
shall commence on the date the lien is entered on the lien docket, and the lien shall be enforced
in the same manner as liens for street improvements.
4. Service of Notices /Orders All notices /orders shall be served by personal service
or sent by certified mail and first class mail. Any notice /order served by mail shall be deemed
received for purposes of any time computations hereunder, three days after the date mailed, if to
an address within this state, and seven days after the date mailed, if to an address outside this
state.
5. Remedies not Exclusive The enforcement mechanisms set forth herein are not
exclusive, and are in addition to any other remedies available under provisions of the Eugene
Code, 1971 and federal and state law.
6. Administrative Compliance Order The enforcement officer may issue an
Administrative Compliance Order for any violation. The Order shall be in writing, specify the
violation(s) and require compliance measures. The Order may also include an Administrative
Civil Penalty for the violation.
G. Appeals
1. Following the procedures set forth in Section 2.021 of the Eugene Code, 1971, a
responsible person to whom a Notice of Violation or Notice of Civil Penalty is .issued may
appeal the enforcement officer's determination to the City Manager. The appeal must be in
writing, filed with the City Manager within 15 days from the date of the notice, and be
accompanied by the fee established by the City Manager pursuant to Section 2.020 of the
Eugene Code, 1971. The appeal shall state the name and address of the appellant, the nature of
the determination being appealed, the reason the determination is incorrect, and what the correct
determination of the appeal should be. Failure to file such a statement within the time or in the
manner required waives the appellant's objections, and the appeal shall be dismissed. At least
ten days prior to the hearing, the City shall mail notice of the time and place of the hearing to the
appellant. The hearings official shall hear and determine the appeal on the basis of the
appellant's written statement and any additional evidence deemed appropriate. The appellant
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may present testimony and oral argument at the hearing either personally or by counsel. The
hearings official shall issue a written decision within ten days of the date of the hearing. The
decision of the hearings official is final, and may include a determination that the appeal fee be
refunded to the appellant upon a finding by the hearings official that the appeal was not
frivolous.
2. The hearings official shall affirm the administrative civil penalty if the City had
authority to impose the administrative civil penalty, the City substantially complied with
applicable procedures, and the amount of penalty was properly determined in accordance with
this rule. The hearings official may modify the amount of the civil penalty based on the record
and testimony received at the appeals hearing and the hearings official's application of the
evidence to the criteria contained in R- 2.018 -C. The hearings official shall set aside the
administrative civil penalty only if the City did not have authority to impose an administrative
civil penalty or if the City substantially failed to comply with applicable procedures.
H. Reports Required by EC 6.615(4)
Reports verifying that the stormwater facility is and has been operated and maintained in
accordance with EC 6.615(3) that are required by EC 6.615(4) shall be prepared and submitted to
the City as follows:
1. Reports shall be submitted to the City annually.
2. Facility owners shall keep a copy of the reports on file at the facility.
3. Reports shall include the following documentation:
(a) Current condition of the stormwater facility, including physical properties
and vegetation;
(b) Maintenance activities performed during the previous year, including
dates when maintenance activity was performed and by whom;
(c) Inventory of noted problems and corrective actions taken.
Dated and effective this 1st day of December , 2011.
Jon R. Ruiz
City Manager
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